EXHIBIT 10.29
GROUNDLEASE
BETWEEN
▇▇▇▇▇▇ CENTER PROPERTY, LLC
"LESSOR"
AND
EQUIFAX INC.
"LESSEE"
GROUND LEASE
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THIS GROUND LEASE (this "Lease"), made and entered into this 5th day
of March, 1998, by and between ▇▇▇▇▇▇ CENTER PROPERTY, L.L.C. ("LESSOR"), and
EQUIFAX INC. ("LESSEE"), a Georgia corporation.
ARTICLE I
DEMISE OF PREMISES
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SECTION 1.01. DEMISE. For and in consideration of the payment of rent
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herein reserved to be paid by LESSEE and the performance of the covenants and
agreements herein contained on the part of LESSEE to be kept, observed and
performed, LESSOR does hereby demise and lease to LESSEE, and LESSEE does hereby
take and hire, upon and subject to the terms and conditions herein contained,
that certain tract of land lying and being in Land ▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ of Atlanta, ▇▇▇▇▇▇ County, Georgia and being more
particularly described in Exhibit "A" hereof together with all buildings,
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structures, and other improvements now or hereafter located thereon and all
appurtenances thereunto belonging (said land, improvements, and appurtenances
are herein collectively referred to as the "Premises"), all subject to the
encumbrances set forth in Exhibit "B" hereof.
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ARTICLE II
TERM OF LEASE
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SECTION 2.01. TERM OF LEASE. The term of this Lease (the "Term")
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shall commence on the date hereof and, unless sooner terminated as herein
provided, shall continue until and terminate on the 31st day of December, 2048.
SECTION 2.02. OPTION TO EXTEND. LESSEE has the option to extend this
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Lease for three (3) additional ten (10) year terms. This option shall be
exercised by LESSEE giving written notice of its exercise no later than six (6)
months prior to the expiration of the Term then in effect. No extension option
may be exercised by the LESSEE if LESSEE is in monetary default under this
Lease and has not cured the default on or before the last date on which an
option may be exercised. If the term of this Lease is so extended, this Lease
shall remain in full force and the Rent to be paid by LESSEE during such option
terms shall be as set forth in Section 4.01.
ARTICLE III
COVENANTS AND WARRANTIES OF LESSOR AND LESSEE
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SECTION 3.01. DEMISE OF LEASEHOLD ESTATE BY LESSOR. LESSOR warrants
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that it has full right and lawful authority to enter into this Lease; and that
it is lawfully seized of good, marketable and indefeasible record fee simple
title to the land described in Exhibit "A" hereof, subject to the encumbrances
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set forth in Exhibit "B" hereof and a Sidewalk Easement Agreement between
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Intersection Park, Inc. and the City of Atlanta dated August 25, 1992, recorded
in Book 15660, Page 012, ▇▇▇▇▇▇ County, Georgia records. It is the intent of
LESSOR and LESSEE that this Lease create a leasehold estate vested in LESSEE,
and not a usufruct.
SECTION 3.02. AUTHORITY OF LESSEE. LESSEE warrants that it has full
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right and lawful authority to enter into this Lease and to keep and perform the
covenants herein contained.
SECTION 3.03. QUIET ENJOYMENT. LESSOR warrants that, unless an Event
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of Default shall have occurred and be continuing, LESSEE'S peaceful possession,
use and enjoyment of the Premises in accordance with this Lease shall not be
interrupted or
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disturbed by LESSOR or any person or entity claiming by, through or under
LESSOR.
ARTICLE IV
ANNUAL RENT AND ADDITIONAL RENTAL
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Section 4.01. RENT. LESSEE covenants and agrees to pay LESSOR, in
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lawful money of the United States of America, without set-off or deduction
(except as herein provided), during the Term as rent hereunder, a base annual
rent (the "Rent") as follows:
RENT PERIOD ANNUAL RENT
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Date to March 31, 2004 $1.00 per year, but subject to being
increased as provided in Section 4.02
April 1, 2004 to December 31, 2008 $600,000.00 per year
January 1, 2009 to December 31, 2018 $690,000.00 per year
January 1, 2019 to December 31, 2028 $793,500.00 per year
January 1, 2029 to December 31, 2038 $912,525.00 per year
January 1, 2039 to December 31, 2048 $1,049,403.00 per year
RENEWAL TERM
January 1, 2049 to December 31, 2058 $1,206,813.00 per year
January 1, 2059 to December 31, 2068 $1,387,834.00 per year
January 1, 2069 to December 31, 2078 $1,596,009.00 per year
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Rent shall be paid in equal monthly installments, in advance, on or before
the first day of each month commencing January 1, 1998. Rent for any partial
year will be prorated.
SECTION 4.02. RENT INCREASES. 1600 Peachtree, L.L.C. ("1600") owns
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three buildings located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ known as
buildings A, B and C, and on the date of this Lease, LESSEE leases all three
buildings from 1600 pursuant to a Headquarters Facility Lease between 1600 and
LESSEE dated March 11, 1994. It is contemplated that LESSEE will have a new
headquarters building built for it on the Premises and upon occupying the
building on the Premises, 1600 has, pursuant to a Lease Termination Agreement of
even date herewith, terminated the Headquarters Facility Lease of March 11, 1994
effective on the date established in such Lease Termination Agreement. Upon
termination of the Headquarters Facility Lease of March 11, 1994, LESSEE will,
pursuant to a Space Lease of even date herewith, lease from 1600 all of the
office space in building C, with the option to lease additional space in
buildings B and/or A up to 50,000 square feet. After the termination of the
Headquarters Facility Lease of March 11, 1994, 1600 will undertake to lease to
third parties all of building A and so much of building B as is not leased by
LESSEE pursuant to its option set forth in such Space Lease. LESSOR and LESSEE
agree that for each dollar of "net rent" in excess of $600,000.00 that 1600
receives from the leasing of buildings A and B as provided in such Lease
Termination Agreement in each year, until March 31, 2004, including any net rent
received from LESSEE for space leased under the Space Lease, the annual Rent due
in each such year until March 31, 2004 will be increased by fifty cents (but in
no event shall exceed $600,000.00 per year). For example: If 1600 leases all of
building A to a third party and the aggregate total of annual rent and other
amounts paid by such third party in any year from the date of its Lease until
March 31, 2004 is $900,000.00 per year, then the Rent payable hereunder for each
year that such third party lease is in effect through March
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31, 2004 is $150,000.00 ($900,000.00 minus $600,000 = $300,000.00 multiplied by
50% = $150,000.00) The term "net rent" shall mean the gross rent and other
amounts received by 1600, less payments made by 1600 for taxes, insurance and
maintenance on buildings A and B and the land on which is described as Tract A
on the Headquarters Facility Lease of March 11, 1994 and other amounts paid
under the Lease Termination Agreement as provided in such Lease Termination
Agreement. In the event that any tenant of buildings A and/or B pays all or any
portion of such taxes, insurance, or maintenance, either directly or to 1600,
the amount so paid shall be deducted from gross rent in determining "net rent",
but any sums paid by LESSEE pursuant to its guarantee as provided in Section 3
of such Lease Termination Agreement shall not be deducted in determining "net
rent". When the aggregate "net rent" from buildings A and B in any year exceeds
$1,800,000.00 per year, the Rent thereafter payable hereunder until March 31,
2004, will be $600,000.00 per year, prorated for any partial year. In the event
a tenant defaults in the payment or performance of its obligations with respect
to buildings A or B, then such defaulted payments shall be deducted from the
"net rent" collected by 1600 and the rent payable under this Lease shall be
recalculated.
LESSOR will cause 1600 to provide LESSEE with monthly statements of Rent due
under this Section 4.02. LESSEE, at it's expense, shall have the right upon
giving reasonable notice to LESSOR and 1600, to audit 1600's books and records
relating to such Rent for the period of up to two (2) years after LESSEE'S
receipt of a Statement and LESSOR shall cause 1600 to make such books and
records available to LESSEE. In the event that such audit reveals that the
amount claimed to be due by LESSEE hereunder is in excess of three percent (3%)
over the actual amount owed by LESSEE hereunder, then LESSOR shall pay the
reasonable costs and expenses incurred in connection with such audit. In the
event that LESSEE in good faith disputes all or any portion of the amount due by
LESSEE hereunder, LESSEE shall not be in breach of this AGREEMENT if
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LESSEE pays to LESSOR such amount as is not in dispute, and any remaining amount
in dispute between LESSOR and LESSEE shall be determined by arbitration by a
panel of three (3) arbitrators in accordance with the rules and regulations for
commercial matters then in effect for the American Arbitration Association or
its successors (the "AAA"). The determination of the arbitrators shall be final,
binding and conclusive on LESSOR and LESSEE, and judgment may be rendered
thereon by any court having jurisdiction, upon application of either LESSOR or
LESSEE. Each party shall have the right to select one of the arbitrators and
shall be responsible for the costs of their respective arbitrator. The third
arbitrator, who shall be a competent and impartial person with at least ten (10)
years experience in commercial leasing in the Atlanta metropolitan area, shall
be selected by the other two arbitrators or, failing agreement by them, the AAA.
The costs of such third arbitrator shall be borne equally by LESSOR and LESSEE.
In any event, if LESSEE has failed to "commence" construction of
Improvements as required by Section 6.02 hereof by December 31, 2000, then,
commencing on January 1, 2001 and continuing to April 1, 2004, the Rent
hereunder shall be $600,000.00 per year.
SECTION 4.03. ADDITIONAL RENTAL. LESSEE covenants and agrees to pay
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to LESSOR, from time to time as provided in this Lease, and as "Additional
Rental": (a) interest (hereinafter called "Interest") at the annual rate equal
to ten percent (10%) on all installments of Rent not paid within five (5) days
after LESSEE receives from LESSOR written notice that one or more installments
of Rent were not paid on the due date, until the date of payment; (b) all other
sums which LESSEE herein agrees to assume and pay to third parties in those
circumstances where LESSEE shall fail or refuse to pay such third parties and
the same is paid by LESSOR; and (c) Interest at the rate specified in Section
4.03 on the sums described in (b), next preceding, from the due date until paid
or, if demand is required therefor by the terms of this Lease, from the date of
demand until paid.
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In the event of any failure on the part of LESSEE to pay any Additional Rental,
LESSOR shall have all the rights, powers and remedies provided for in this Lease
or at law or in equity or otherwise in the event of the nonpayment of Rent.
SECTION 4.04. NET LEASE; NON-TERMINATION. This Lease is a net Lease
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and Rent and Additional Rental shall be paid without notice, demand (except as
expressly provided herein in the case of certain Additional Rental),
counterclaim, setoff, deduction or defense and, without abatement, suspension,
deferment, diminution or reduction. Except as otherwise provided in this Lease,
this Lease shall not terminate nor shall LESSEE have any right to terminate this
Lease or be entitled to the abatement of any Rent hereunder or any reduction
thereof, nor shall the obligations of LESSEE under this Lease be otherwise
affected, by reason of (a) any damage to or destruction of all or any portion of
the Premises from whatever cause, except as provided in Articles XIII and XIV
(b) the prohibition, limitation or restriction of or interference with LESSOR'S
use of all or any portion of the Premises (except when such constitutes a breach
of LESSOR'S covenant of quiet enjoyment), (c) the failure on the part of LESSOR
or 1600 to perform or comply with any term, provision or covenant of any other
agreement to which LESSOR and LESSEE or 1600 and LESSEE may be parties, other
than the "Termination Agreement" between 1600 and LESSEE of even date herewith,
(d) the entry of a decree or order for relief by a court having jurisdiction in
the Premises in respect of LESSEE in an involuntary case under the federal
bankruptcy laws, as now or hereafter constituted, or any other applicable
federal or state bankruptcy, insolvency or other similar law, or appointing a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of LESSEE or for any substantial part of its property, or ordering the
winding-up or liquidation of its affairs and the continuance of any such decree
or order unstayed and in effect for a period of sixty (60) consecutive days, (e)
the commencement by LESSEE of a voluntary case under the federal bankruptcy
laws, as now constituted or hereafter
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amended, or any other applicable federal or state bankruptcy, insolvency or
other similar law, or the consent by it to the appointment of or taking
possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator
(or other similar official) of LESSEE or for any substantial part of its
property, or the making by it of any assignment for the benefit of creditors, or
the failure of LESSEE generally to pay its debts as such debts become due, or
the taking of corporate action by LESSEE in furtherance of any of the foregoing,
or (f) any claim which LESSEE has or might have against LESSOR. Except as
otherwise expressly provided in this Lease, LESSEE waives all rights now or
hereafter conferred by statute or otherwise to quit, terminate or surrender this
Lease or the leasehold estate in the Premises or any part thereof, or to any
abatement, suspension, deferment, diminution or reduction of Rent. It is the
purpose and intent of LESSOR and LESSEE that Rent and Additional Rental (where
payable to LESSOR) shall be absolutely net to LESSOR, so that this Lease shall
yield, net, to LESSOR, Rent specified in 4.01 and Additional Rental specified in
4.03 hereof throughout the Term, and that all costs, expenses and obligations of
every kind or nature whatsoever relating to the Premises which may arise and
become due as specified in 5.01 and 5.02 hereof or elsewhere herein during the
Term shall be paid by LESSEE, and that LESSOR shall be indemnified and saved
harmless by LESSEE from and against the same, except as expressly provided
herein.
ARTICLE V
TAXES, ASSESSMENTS AND CHARGES
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SECTION 5.01. TAXES AND ASSESSMENTS. Subject to the provisions of
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11.01 hereof (concerning "Permitted Contests"), LESSEE covenants and agrees to
discharge and pay before the same become delinquent and before any fine,
penalty, or interest may be added for nonpayment, any and all taxes,
assessments, license or permit fees, excises,
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imposts and charges of every nature and classification (all or any one of which
are hereinafter referred to as "Tax") that at any time during the Term and any
extension thereof are levied, assessed, charged or imposed upon LESSOR'S fee
simple and/or reversionary interest in the Premises or any Rent or Additional
Rental reserved or payable hereunder (including any gross receipts or other
taxes levied upon, assessed against or measured by the Rent or Additional
Rental); provided, however, that LESSEE shall not be obligated to pay any
municipal, state or federal income, inheritance or estate tax or any tax
imposed, levied or assessed with respect to or because of the income,
appreciation or other benefit derived by LESSOR from or by virtue of this Lease
or the estate of LESSOR under this Lease under currently existing applicable
laws and regulations; provided, however, that if at any time during the Term the
methods of taxation prevailing at the commencement of the Term shall be altered
so that any imposition which at the commencement of or during the Term is or
shall be levied, assessed or imposed on real estate and the improvements thereon
is thereafter levied, assessed or imposed wholly or partially (a) on the rents
received from real estate or the improvements thereon, or (b) as a tax
assessment, levy or license fee (regardless of the form and regardless of the
taxing authority) upon LESSOR, measured by Rent and Additional Rental payable
under this Lease, then all such substitute taxes, assessments, levies or license
fees shall be deemed to be included within the meaning of the term "Tax" for
purposes hereof, and LESSEE shall pay and discharge the same as herein provided
in respect to the payment of Tax. Tax due during the initial year of the Term
and the final year of the Term will be prorated.
SECTION 5.02. CHARGES. Subject to the provisions of 11.01 hereof
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(concerning Permitted Contests), LESSEE covenants and agrees that it shall pay
in accordance with usual and customary business practices as such shall become
due all charges for all public or private utility services including, but not
limited to, water, sewer, gas, light, heat and air conditioning, telephone,
electricity, trash removal, power and other
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utility and communications services (all or anyone of which are hereinafter
referred to as "Charge") that at any time during the Term are rendered or become
due and payable with respect to the Premises.
SECTION 5.03. GENERAL. LESSEE shall prepare and file, all reports and
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returns required by law and governmental regulations with respect to any Tax and
shall furnish copies thereof to LESSOR. LESSOR and LESSEE shall promptly
forward to the other, upon receipt, copies of any ▇▇▇▇ or assessment respecting
any Tax. Upon request of LESSOR, LESSEE agrees to furnish and deliver to LESSOR
receipts evidencing the payment of any Tax and/or Charge payable by LESSEE as in
5.01 and 5.02 provided. If any Tax and/or Charge may be paid in installments,
LESSEE shall be obligated to pay only such installments as they become due;
provided, however, that any and all installments which are incurred during the
Term, as the same may be extended, and become due and payable after the
expiration of the Term shall be paid on or before the date which is prior to the
expiration of the Term, or, in event of the termination of this Lease, prior to
the date of such termination. If LESSEE fails to pay any Tax and/or Charge (or
any installment thereof) when due, LESSOR, without declaring a default
hereunder, may, but shall not be obligated to, pay any such Tax and/or Charge
(or any installment thereof) and any amount so paid by LESSOR, together with all
reasonable costs and expenses incurred by LESSOR in connection therewith, shall
constitute Additional Rental hereunder and shall be paid by LESSEE to LESSOR on
demand with Interest thereon in the manner provided in 4.03. LESSEE'S
obligation to pay Taxes and Charges which accrue during the Term and any
extension thereof shall survive any termination of this Lease.
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ARTICLE VI
CONDITION AND OPERATION OF THE PREMISES
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SECTION 6.01. CONDITION OF THE PREMISES. LESSEE represents, covenants
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and agrees that the Premises in its present state is accepted as being in good
order and condition and that the Premises comply in all respects with the
requirements of this Lease, and is in all respects suitable for the purposes
intended by LESSEE. LESSOR leases the Premises and LESSEE accepts the Premises,
"as is" at the date hereof without representation or warranty by LESSOR, express
or implied, in fact or by law, and without recourse to LESSOR, with respect to:
(i) the condition of the Premises, including, but not limited to the soil and
subsurface conditions thereof; (ii) the ability to use the Premises for any
particular purpose; (iii) access to or from the Premises; or, (iv) the existence
or adequacy of present or future availability of any utilities to service the
Premises, including, but not limited to, drainage and sewage facilities.
6.02 CONSTRUCTION OF IMPROVEMENTS.
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(A) LESSEE agrees, at its expense, to commence, or cause to be
commenced, prior to December 31, 2000, on the Premises, building improvements
consisting of an office building tower containing at least 100,000 square feet
of usable office and storage space. For the purposes of this Section 6.02, and
any other documents between LESSOR and LESSEE, LESSEE will be deemed to have
commenced, or caused to be commenced, construction of such office building when
the sum of $10,000,000 has been incurred on the design and construction of such
office building.
(B) Any and all improvements to the Premises made by LESSEE shall,
throughout the Term and any extensions thereof, be the property of LESSEE, but
subject to LESSEE'S rights pursuant to Section 6.04, at the end of the Term all
such
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improvements shall revert to LESSOR free and clear of all liens and encumbrances
created by, through or under LESSEE.
SECTION 6.03 MAINTENANCE AND REPAIRS. Subject to the provisions of
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Section 6.05, LESSEE shall, at its own cost and expense, maintain the Premises,
exterior and interior, structural and nonstructural, in a good condition and
repair, normal wear and tear and damage by casualty or condemnation (subject to
the terms of this Lease) excepted.
SECTION 6.04. LESSEE'S PERSONAL PROPERTY; INDEMNITY. All of LESSEE'S
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personal property now or hereafter placed or installed in the Premises ("Trade
Fixtures") shall be and remain LESSEE'S property at LESSEE'S sole risk, and
LESSOR shall not be liable for and LESSEE hereby releases LESSOR from any and
all liability for theft thereof or any damage thereto occasioned by any acts,
omissions or negligence of any third persons, or any act of God.
LESSEE shall have the right to install in the Premises additional
Trade Fixtures required by LESSEE or used by it in its business, and to remove
any and all Trade Fixtures or other personal property upon expiration or
termination of this Lease; provided, however, that LESSEE shall repair and
restore any damage or injury to the Premises (to the condition in which the
Premises existed prior to such installation) caused by the installation and/or
removal of any such Trade Fixtures. For the purposes hereof, any security
system or similar systems installed by LESSEE (but excluding any wiring
throughout the improvements) shall be considered a Trade Fixture.
SECTION 6.05. ALTERATIONS AND ADDITIONS. If not at the time in
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default under this Lease, LESSEE at its expense may make alterations of and
additions (both structural and non-structural) to the Premises or any part
thereof, provided that any alteration or addition (a) shall not change the
general character of the Premises as office facility, or reduce the fair market
value thereof below its value immediately before such
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alteration or addition, or impair the usefulness of the Premises as an office
building (provided, however that such requirements shall not be construed to
require LESSEE to operate the Premises as an office building, it being the
intent of this Lease that the Premises may be used for any lawful purpose).
Title to all such modifications, alterations and/or additions shall be and
remain in the LESSEE during the Term hereof and any extensions thereof, but
shall revert to LESSOR at the end of the Term, or such extensions..
SECTION 6.06 OLYMPIC SCULPTURE. LESSOR agrees that it will cause the
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Olympic Sculpture presently located on the Premises to be removed from the
Premises on or before the 15th day of May, 1998. LESSEE will contribute the sum
of Five Thousand and No/100 Dollars ($5,000.00) toward the removal of such
Olympic Sculpture and will reimburse the artist, ▇▇▇▇ ▇▇▇▇▇, for his expenses in
commuting to Atlanta to supervise the removal.
LESSOR and LESSEE acknowledge that the Premises are subject to an
Easement Agreement between Intersection Park, Inc. and Atlanta Committee for the
Olympic Games dated May 15, 1992, recorded in Deed Book 20734, page 276, ▇▇▇▇▇▇
County, Georgia records, which Easement Agreement has been assigned by Atlanta
Committee for the Olympic Games to Hudgens Family Foundation, Inc. by document
recorded in Deed Book 23473, page 102, aforesaid records. Until the removal of
such Olympic Sculpture, LESSOR shall perform all of the obligations of
Intersection Park, Inc. under such Easement Agreement. Upon the removal of such
Olympic Sculpture, LESSOR shall cause to be executed and delivered to LESSEE
such agreements in recordable form as LESSEE may require to terminate the
Easement Agreement (including, without limitation, such agreements as may be
necessary to obtain an endorsement to LESSEE'S title insurance policy removing
such Easement Agreement as an exception).
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ARTICLE VII
COMPLIANCE WITH LAWS: LIENS AND ENCUMBRANCES
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SECTION 7.01. COMPLIANCE WITH LAWS. LESSEE shall, at LESSEE'S sole
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cost and expense, and subject to all of the provisions of this Section 7.01,
promptly comply in all material respects with any and all present and future
laws, ordinances, rules, regulations, directives and standards of all federal,
state, county and municipal governments and all departments and agencies thereof
having jurisdiction over the Premises ("laws"), including but not limited to,
the making of all changes to the Premises which now or hereafter may be required
in order to comply with the foregoing.
SECTION 7.02. LIENS AND ENCUMBRANCES. Subject to the provisions of
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Section 11.01 hereof (concerning Permitted Contests) and the provisions of
Section 10.01 hereof (permitting mortgaging of LESSEE'S leasehold estate),
LESSEE shall not create or permit to be created or to remain, and, shall
promptly discharge or remove or otherwise render ineffective by payment or
posting of a surety bond, or otherwise, within one hundred twenty (120) days
after notice by LESSOR, at its sole cost and expense, any lien, encumbrance or
charge (each or all of which are herein referred to as "Lien") upon LESSEE'S
interest in the Premises, or any part thereof, or upon LESSEE'S leasehold estate
hereunder, that arises from the use or occupancy of the Premises by LESSEE or by
reason of any labor, service or material furnished or claimed to have been
furnished to LESSEE or by reason of any construction, repair or demolition by
LESSEE. Notice is hereby given that LESSOR shall not be liable for the cost and
expense of any labor, services or material furnished or to be furnished with
respect to the Premises at or by the direction of LESSEE or anyone holding the
Premises or any part thereof by, through or under LESSEE and that no laborer's,
mechanic's or materialman's or other lien for any such labor, services or
materials shall attach to or affect the interest of LESSOR in and to the
Premises. Nothing in this Lease contained shall be deemed or construed in any
way as
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constituting the consent or request of LESSOR, express or implied, by inference
or otherwise, to any contractor, subcontractor, laborer or materialman for the
performance of any labor or the furnishing of any materials for any specific
improvements or repair to or of the Premises or any part thereof, nor as giving
LESSEE any right, power or authority on behalf of LESSOR to contract for or
permit the rendering of any services or the furnishing of any materials that
would give rise to the filing of any lien against the Premises or any part
thereof. If LESSEE fails to discharge, remove or otherwise render ineffective by
payment, posting of a surety bond, or otherwise, any Lien as hereinabove
provided, after the expiration of any applicable notice cure period, LESSOR,
without declaring a default hereunder and without relieving LESSEE of any
liability hereunder, may, but shall not be obligated to, discharge or pay the
same, either by paying the amount claimed to be due or by procuring the
discharge of such Lien by deposit or by bonding proceedings, and any amount so
paid by LESSOR and all costs and expenses incurred by LESSOR in connection
therewith shall constitute Additional Rental hereunder and shall be paid by
LESSEE to LESSOR on demand with Interest thereon.
ARTICLE VIII
INDEMNIFICATION
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SECTION 8.01. INDEMNIFICATION. LESSEE covenants and agrees to pay,
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defend, and save harmless LESSOR from and against any and all liability, loss,
damage, causes of action, suits, claims, demands or judgments of any nature
whatsoever (a) arising from any injury to or the death of any person or damage
to any property occurring on the Premises during the Term, as possibly extended,
or (b) in any manner arising out of or connected with the use, non-use,
condition, possession, operation, maintenance, management or occupation of the
Premises or any part thereof during the Term of this Lease or any extensions
thereof, (c) any negligence on the part of the LESSEE or its
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agents, contractors, servants, employees, licensees or invitees, or (d)
resulting from the violation by LESSEE of any term, condition or covenant of
this Lease or of any contract, agreement, or restriction created by, through or
under LESSEE which affects the Premises, or any regulation affecting the
Premises or any part thereof during the Term of this Lease or any extensions
thereof or the ownership, occupancy or use thereof during the Term of this Lease
and any extensions thereof; provided, however, that the indemnification provided
hereunder shall not apply to any liability, loss, damage or expense resulting
from the negligence or willful misconduct of LESSOR, its officers, employees,
servants, licensees, invitees, agents or contractors. LESSEE, at its sole cost
and expense, shall defend LESSOR against such causes of action, suits, claims,
and demands and be responsible for such judgments as to which LESSOR is
indemnified. LESSOR will cooperate with LESSEE in the defense of any such claim,
cause of action, suit or demand. Should LESSOR elect to participate in any
defense it may do so only at LESSOR'S sole cost and expense. Promptly upon
receipt by LESSOR of any summons, complaints, lawsuit, charge or process in
which there shall be asserted any causes of action, suits, claims or demands
against which LESSOR is indemnified in this Section 8.01, LESSOR shall promptly
cause the same to be transmitted and delivered to LESSEE. Written notice of the
assertion against LESSOR of any such cause of action, suit, claim or demand
shall be delivered by LESSOR to LESSEE promptly after LESSOR receives knowledge
thereof. The obligations of LESSEE under this 8.01 shall survive any termination
of this Lease and any transfer or assignment by LESSOR or LESSEE of this Lease
or any interest hereunder.
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ARTICLE IX
SURRENDER
---------
SECTION 9.01. SURRENDER. Upon any termination of this Lease, LESSEE
---------
shall peaceably quit and surrender the Premises to LESSOR, and any and all
machinery and equipment constructed, installed or placed by LESSEE thereon,
excepting Trade Fixtures, inventory, merchandise and other personalty owned by
LESSEE. In the event LESSEE is not then in default under this Lease, beyond any
applicable grace or cure periods herein provided, LESSEE shall have the right
upon a termination or expiration of this Lease to remove from the Premises all
Trade Fixtures and other personal property and equipment used in LESSEE'S
business, as distinguished from machinery and equipment used in and necessary to
the operation of the Premises. Any Trade Fixtures or other machinery and
equipment not removed by LESSEE on or before termination or expiration of this
Lease shall become the property of LESSOR.
SECTION 9.02. REMOVAL. LESSEE, at its sole cost and expense, and upon
-------
LESSOR'S written request therefor delivered sixty (60) days prior to any
termination or expiration, shall remove on or before termination or expiration
all or any Trade Fixtures from the Premises. LESSEE, at its sole cost and
expense, shall repair any damage caused thereby to the Premises.
ARTICLE X
ASSIGNMENT AND SUBLETTING
-------------------------
SECTION 10.01. LESSEE'S ASSIGNMENT. Subject to the provisions of
----------
Section 18.02, LESSEE shall have the right to assign this Lease or its leasehold
interest in the Premises(whether such assignment occurs by operation of law or
otherwise) without the prior consent of LESSOR; provided, however, no assignment
by LESSEE shall relieve the LESSEE of its obligations under this Lease except
that, if the assignee has a tangible
-17-
net worth of $500,000,000 or more (as provided in such assignee's most recent,
published financial statement certified by an independent certified public
account of recognized national standing as having been prepared in accordance
with generally accepted accounting principles, consistently applied), and such
assignee complies with the next following sentence, then LESSEE will be relieved
from liability hereunder. LESSEE agrees to cause any assignee to execute and
deliver to LESSOR an agreement, in form and substance reasonably satisfactory to
LESSOR, pursuant to which such assignee agrees to assume and to discharge all
the obligations of LESSEE under this Lease, without, however, relieving LESSEE
of any such obligations unless such assignee meets the "Net Worth" test set
forth above.
LESSEE may, without LESSOR'S prior consent, sublet all or any part of the
Premises, but in the event of subletting LESSEE shall remain fully liable for
all of its obligations as provided in this Lease. LESSEE shall have the right
to mortgage, grant security title to or a security interest in the leasehold
estate created hereby, or to collaterally assign its interest in the Lease, to
any lender or debt holder of LESSEE; provided, however, no such mortgaging,
granting security title to or security interest in or collateral assignment
shall relieve or discharge LESSEE from its obligations hereunder or shall
encumber LESSOR'S interest in the Lease or in the Premises, it being the
parties' specific intent that LESSOR shall not be required to subordinate its
fee interest or its interest in this LEASE to LESSEE'S lender. If LESSEE
assigns this Lease to SunTrust Banks, Inc. or any other person in connection
with a so-called "synthetic lease" or similar financing then such person shall
not be required to assume the obligations of LESSEE under this Lease and,
notwithstanding the fact that such person may meet the Net Worth test set forth
above, LESSEE shall not be relieved of liability under this Lease.
10.2 LEASEHOLD MORTGAGEE PROTECTION PROVISIONS.
-----------------------------------------
1. Definitions:
-18-
a) "Foreclosure" shall mean any judicial foreclosure, sale under a
private power of sale, or any conveyance in lieu of foreclosure, or any other
action or means whereby the lessor under a synthetic lease or similar financing
arrangement seeks to obtain possession of the Premises. .
b) "Institutional Lender" shall mean (i) any commercial, national or
state savings bank, savings and loan association or trust company (in each case
whether acting on its own behalf or as a trustee), any insurance company, surety
or bonding company, real estate investment trust, pension, welfare or retirement
fund, any foreign bank branch or agency, any master limited partnership and any
educational institution or charitable foundation, (ii) any other company,
partnership, association or other entity, or group thereof, which perform
functions similar to any of the foregoing and have assets in excess of Fifty
Million Dollars ($50,000,000.00) at the time said Leasehold Mortgage loan is
made; and (iii) SunTrust Banks, Inc.
c) "Leasehold Mortgage" shall mean any deed to secure debt or other
security instrument, including financing statements, security agreements and
related instruments, by which all or any portion of LESSEE'S leasehold estate
created hereby or the Improvements is mortgaged, conveyed, encumbered, assigned
or transferred to a Leasehold Mortgagee. In addition, a Leasehold Mortgage
shall include any so-called "synthetic lease" or similar financing structure
(including, without limitation, the lease to be executed on or about the date
hereof from SunTrust Banks, Inc. to LESSEE.
d) "Leasehold Mortgagee" shall mean any Institutional Lender and any
LESSEE hereunder who takes back a purchase money security interest in all or any
portion of the leasehold estate created hereby or the Improvements upon a sale
or assignment of the same.
2. Leasehold Mortgagee Protection. In the event that a Leasehold
------------------------------
Mortgagee shall provide LESSOR with written notice of its name and address and a
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copy of its Leasehold Mortgage then, following receipt by LESSOR of such written
notice and for so long as such Leasehold Mortgage shall remain unsatisfied of
record or until written notice of satisfaction of such Leasehold Mortgage is
given by the Leasehold Mortgagee to LESSOR, the provisions of this Paragraph 2
shall apply to each such Leasehold Mortgagee. LESSOR shall promptly upon
receipt of a communication under this Paragraph 2 acknowledge in writing receipt
of said communication to LESSEE and such Leasehold Mortgagee as satisfying the
requirements of this Paragraph 2, or, in the alternative, reject in writing said
notice as not complying with the provisions of this Paragraph 3 and specify the
specific grounds for such rejection. Upon the request of such Leasehold
Mortgagee, LESSOR shall acknowledge receipt of a satisfactory notice by an
instrument in recordable form. In the event that LESSOR shall fail to reject
any such notice on or before fifteen (15) days after the receipt by LESSOR of
such notice, such notice shall be deemed to have satisfied the requirements of
this Paragraph 2. In the event of any assignment of a Leasehold Mortgage or in
the event of a change of address of a Leasehold Mortgagee or of an assignee of
such Leasehold Mortgagee written notice of such new name and/or address shall be
provided to LESSOR.
a) No Cancellation, Rejection, Surrender, Amendment or Modification.
----------------------------------------------------------------
No cancellation, rejection, surrender, amendment or modification (other than by
expiration of the Term or a termination of this Lease under Section 15.02, but
after compliance with clauses b, c, and d. below) of this Lease shall be
effective as to any Leasehold Mortgagee unless consented to in writing by such
Leasehold Mortgagee. Without limiting the generality of the foregoing, no
purported acceptance by LESSEE of any rejection of this Lease by LESSOR or any
trustee in bankruptcy for LESSOR as terminating this Lease shall be effective as
to any Leasehold Mortgagee unless consented to in writing by such Leasehold
Mortgagee, and no purported rejection of
-20-
this Lease by LESSEE or by a trustee in bankruptcy for LESSEE shall be effective
as to any Leasehold Mortgagee unless consented to in writing by such Leasehold
Mortgagee.
b) Default Notice; Rights to Cure Defaults. LESSOR shall, on serving
---------------------------------------
LESSEE with any notice of any default under this Lease, a termination of this
Lease or any other notice required to be given under this Lease, simultaneously
serve a copy of such notice upon each Leasehold Mortgagee. No such notice by
LESSOR to LESSEE shall be deemed to have been duly given unless and until a copy
thereof has been so provided to every Leasehold Mortgagee in the manner
specified herein. From and after the date such notice has been given to a
Leasehold Mortgagee, each such Leasehold Mortgagee shall have the same period,
after its receipt of such notice, for remedying any default or causing the same
to be remedied, as is given to LESSEE after the giving of such notice to LESSEE,
plus in each instance, the additional periods of time specified in Subparagraph
2(d), below, to remedy, commence remedying or cause to be remedied the defaults
specified in any such notice. LESSOR shall accept such performance by or at the
instigation of the Leasehold Mortgagee as if the same had been performed by
LESSEE. LESSEE hereby authorizes each Leasehold Mortgagee to take any such
action that such Leasehold Mortgagee deems necessary to cure any such default
and does hereby authorize entry upon the Premises by each such Leasehold
Mortgagee or its agents for the purpose of curing such defaults.
c) Additional Notice to Leasehold Mortgagee.
----------------------------------------
(i) Notwithstanding anything contained herein to the contrary,
if any default shall occur which entitles LESSOR to terminate this Lease, LESSOR
shall have no right to terminate this Lease unless, following the expiration of
the period of time given LESSEE to cure such default, LESSOR shall notify every
Leasehold Mortgagee of LESSOR'S intent to so terminate at least thirty (30) days
in advance of
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the proposed effective date of such termination and such default is capable of
being cured by the payment of money, and at least sixty (60) days in advance of
the proposed effective date of such termination if such default is not capable
of being cured by the payment of money. The provisions of subparagraph 2(d),
below, shall apply if, during such thirty day or sixty day period, as
applicable, any Leasehold Mortgagee shall:
(A) Notify LESSOR of such Leasehold Mortgagee's desire to nullify
such notice, and
(B) Pay or cause to be paid all Rent, Additional Rent and other
payments and charges due hereunder and in default as specified in the
termination notice to such Leasehold Mortgagee and which become due during such
thirty day or sixty day period, as applicable, and
(C) Comply or in good faith, with reasonable diligence and
continuity, commence to comply or commence to acquire the legal right to cause
compliance with, all other obligations of LESSEE under this Lease then in
default and reasonably susceptible of being complied with by such Leasehold
Mortgagee; provided, however, that such Leasehold Mortgagee shall not be
required during such sixty day period to cure or commence to cure any default
consisting of LESSEE'S failure to satisfy and discharge any lien, charge or
encumbrance against LESSEE'S interest in this Lease or the Premises junior in
priority to the lien of the mortgage held by such Leasehold Mortgagee.
d) Procedure on Default.
--------------------
(i) In the event that LESSOR shall elect to terminate this
Lease by reason of any default of LESSEE, and a Leasehold Mortgagee shall have
proceeded in the manner provided for by subparagraph 2(c), above, such Leasehold
Mortgagee shall have the right to postpone and extend the specified date for the
termination of this Lease as fixed by LESSOR in its notice of termination for a
period of not more than
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twelve (12) months, provided that such Leasehold Mortgagee shall, during such
twelve (12) month period, (A) pay or cause to be paid any Rent, Additional Rent
and other payments and charges as the same become due (subject to all applicable
notice and cure periods) and continue its good faith efforts to perform, or
cause to be performed, all of LESSEE'S other obligations under this Lease
(subject to all applicable notice and cure periods), excepting (i) obligations
of LESSEE to satisfy or otherwise discharge any lien, charge or encumbrance
against LESSEE'S interest in this Lease or the Premises junior in priority to
the lien of the mortgage held by such Leasehold Mortgagee, and (ii) past
obligations then in default and not reasonably susceptible of being cured by
such Leasehold Mortgagee, and (B) if not enjoined or stayed, take steps to
acquire or sell LESSEE'S interest in this Lease by foreclosure of the Leasehold
Mortgage or other appropriate means and prosecute the same to completion with
due diligence.
(ii) If at the end of such twelve (12) month period such
Leasehold Mortgagee is complying with subparagraph 2(d)(i) and such Leasehold
Mortgagee is prohibited by any process or injunction issued by any court of
competent jurisdiction or by reason of any action in any court of competent
jurisdiction from commencing or prosecuting foreclosure or other appropriate
proceedings in the nature thereof, this Lease shall not then terminate, and the
time for completion by such Leasehold Mortgagee of its proceedings shall
continue so long as such Leasehold Mortgagee is enjoined or stayed and
thereafter for so long as such Leasehold Mortgagee proceeds with due diligence
to complete steps to acquire or sell LESSEE'S interest in this Lease by
foreclosure of the Leasehold Mortgage or by other appropriate means. Nothing in
this subparagraph 3(d)(ii), however, shall be construed to extend this Lease
beyond the original term hereof as extended by any options to extend the term
hereof properly exercised by LESSEE or a Leasehold Mortgagee in accordance with
the terms of this Lease, nor to require a Leasehold Mortgagee to continue
-23-
foreclosure proceedings after a default has been cured. In the event that such
default shall be cured and the Leasehold Mortgagee shall discontinue such
foreclosure proceedings, this Lease shall continue in full force and effect as
if LESSEE had not defaulted under this Lease.
(iii) In the event that a Leasehold Mortgagee complies with
subparagraphs 2(c) and (d), above, then, upon the acquisition of LESSEE'S right,
title and interest herein by such Leasehold Mortgagee or its designee, or any
other purchaser or assignee at a foreclosure sale or otherwise, this Lease shall
continue in full force and effect as if LESSEE had not defaulted under this
Lease.
(iv) The granting of a Leasehold Mortgage shall not be deemed
to constitute an assignment or transfer of this Lease or of the leasehold estate
hereby created, and any conveyance of the leasehold estate created hereby from
LESSEE to a Leasehold Mortgagee by foreclosure or otherwise, shall not be deemed
to constitute an assignment or transfer of this Lease or of the leasehold estate
hereby created requiring the assumption of the obligations of LESSEE hereunder,
but such purchaser or assignee of this Lease and of the leasehold estate hereby
created shall be deemed to have agreed to perform all of the terms, covenants
and conditions on the part of the LESSEE to be performed hereunder from and
after the date of such purchase and assignment, but only for so long as such
purchaser or assignee is the owner of such leasehold estate. Upon such
conveyance, LESSOR shall recognize such Leasehold Mortgagee, or any other
purchaser or assignee, as LESSEE hereunder. From and after the date of such sale
or assignment, the holder of any Leasehold Mortgage then existing or thereafter
placed on the leasehold estate hereby created shall be considered a Leasehold
Mortgagee as contemplated by this Lease, and the Leasehold Mortgagee thereunder
shall be entitled to receive the benefit of any and all provisions of this Lease
intended for the benefit of a Leasehold Mortgagee.
-24-
e) Casualty; Condemnation. All proceeds of policies of insurance
----------------------
maintained hereunder and the award from any condemnation or taking of the
Premises shall be paid to and held by the first in priority Leasehold Mortgagee
in trust for the benefit of LESSOR and LESSEE. Such Leasehold Mortgagee is
hereby authorized to participate in any actions, proceedings or negotiations in
connection with the collection, settlement or compromise of any such proceeds or
awards.
f) New Lease.
---------
(i) In the event that this Lease is terminated as a result of any
default by LESSEE hereunder or any other cause (including, without limitation, a
rejection of this Lease by LESSEE'S trustee in bankruptcy pursuant to 11 U.S.C.
(S)365 or any equivalent provision of law), LESSOR shall in addition to the
notices to be provided pursuant to subparagraphs 2(b) and 2(c) above provide
each Leasehold Mortgagee within five (5) days of such termination with written
notice that the Lease has been terminated, together with a statement of all sums
which would at that time be due under this Lease but for such termination, and
of all other defaults, if any, then known to LESSOR. LESSOR shall enter into a
new lease (hereinafter referred to as the "New Lease") of the Premises with any
Leasehold Mortgagee or its designee for the remainder of the term of this Lease
(as if this Lease had not been terminated), effective as of the date of
termination, at the same Rent and with the same covenants, conditions and
agreements (including, without limitation, any and all options to extend or
renew the term of this Lease, but excluding any requirements which are not
applicable or have been satisfied by LESSEE prior to termination) as are
contained herein, subject only to the conditions of title as the Premises are
subject to on the date of the execution of the original Lease and such matters
arising thereafter to which such Leasehold Mortgagee has consented to in
writing, and to the right, if any, of any parties then in possession of any part
of the Premises, upon receipt by LESSOR of a written request from such
-25-
Leasehold Mortgagee on or before sixty (60) days after the date of LESSOR'S
notice of termination given pursuant to this subparagraph 3(f) and thereafter,
the lessee under the New Lease shall have the same right, title and interest in
and to the Premises and the buildings and improvements thereon as LESSEE had
under this Lease. In addition, LESSOR shall convey to such Leasehold Mortgagee
or its designee title to the Improvements by limited warranty deed for the term
of the New Lease, such conveyance to be free and clear of, and include
warranties by LESSOR that such conveyance is free and clear of all liens,
encumbrances, security interests, easements and other matters created by LESSOR
and affecting title to the Improvements. LESSOR shall further assign and
transfer to such Leasehold Mortgagee or its designee, without representation or
warranty of any kind (other than that LESSOR has taken no action to terminate,
assign, transfer or encumber such subleases, or any interest therein), all of
LESSOR'S interest in and to any suble ases entered into by LESSEE under the
terms of this Lease. The obligations of LESSOR to enter into a New Lease shall
be subject to the following conditions:
(A) Such Leasehold Mortgagee or its designee shall pay or cause
to be paid to LESSOR at the time of the execution and delivery of such New Lease
any and all sums which would at the time of execution and delivery thereof be
due pursuant to this Lease but for such termination and, in addition thereto,
all reasonable expenses, including reasonable attorney's fees, which LESSOR
shall have incurred by reason of such termination and the execution and delivery
of the New Lease and which have not otherwise been received by LESSOR from
LESSEE or any other party in interest under LESSEE. Upon the execution of such
New Lease, LESSOR shall allow the LESSEE named therein as an offset against the
sums otherwise due under this subparagraph 3(f) or the New Lease, an amount
equal to the net income derived by LESSOR from the Premises during the period
from the date of termination
-26-
of this Lease to the date of beginning of the term of such New Lease. In the
event of a controversy as to the amount to be paid to LESSOR pursuant to this
subparagraph 2(f)(i)(A), the payment obligation shall be satisfied in the event
that LESSOR shall be paid the amount not in controversy, and such Leasehold
Mortgagee or its designee shall agree to pay any additional sum ultimately
determined to be due plus interest at the rate of eight percent (8%) per annum
and such obligation shall be adequately secured;
(B) Such Leasehold Mortgagee or its designees shall agree to
cure any defaults of LESSEE under the terminated lease of which LESSOR shall
have notified Leasehold Mortgagee as required in this Lease and which are
reasonably susceptible of being so cured by such Leasehold Mortgagee or its
designee; and
(C) The tenant under any such New Lease shall be liable to
perform the obligations imposed on the LESSEE by such New Lease only during the
period such tenant has ownership of the leasehold estate hereby created.
(ii) In the event that more than one Leasehold Mortgagee shall make
written request upon LESSOR for a New Lease, then the New Lease shall be entered
into pursuant to the request of the Leasehold Mortgagee whose Leasehold Mortgage
shall be most junior in lien, provided (A) the holder of any Leasehold Mortgage
prior in lien who makes such written request upon LESSOR shall have been paid
all installments of interest and amortization of principal then due and owing to
such Leasehold Mortgagee, plus all expenses, including reasonable attorney's
fees, incurred by such Leasehold Mortgagee in connection with the termination of
this Lease, the execution and delivery of the New Lease and the execution and
delivery of all documents reasonably necessary to protect the priority of its
Leasehold Mortgage; (B) the new lessee will assume, in writing, all of the
covenants, agreements and obligations on the part of the defaulted LESSEE under
any Leasehold Mortgage prior in lien to be
-27-
kept, observed and performed on the part of such defaulted LESSEE, subject
nevertheless to the terms and conditions of such Leasehold Mortgage, and shall
execute and deliver to all holders of any Leasehold Mortgage prior in lien who
have made a written request upon LESSOR pursuant to subparagraph 2(f) such
documents as are necessary to keep such Leasehold Mortgages in full force and
effect, and (C) the holder of any Leasehold Mortgage prior in lien shall have
received from the title insurance company insuring such Leasehold Mortgage
assurances (at no expense to it) satisfactory to such Leasehold Mortgagee that
its Leasehold Mortgage continues, with respect to the New Lease, in the same
manner and order of priority of lien as was in existence with respect to this
Lease and that the leasehold estate of the new lessee created by such New Lease
shall be subject to the lien of any Leasehold Mortgage prior in lien in the same
manner and order of priority of lien as was in existence with respect to the
leasehold estate created under this Lease. All holders of Leasehold Mortgages
prior in lien who have delivered a written request to LESSOR pursuant to
subparagraph 2(f) shall act in good faith and cooperate with the holder of the
Leasehold Mortgage junior in lien so as to permit such junior Leasehold
Mortgagee to take advantage of the provisions of this subparagraph 3(f). In the
event that all of the conditions of clauses (A), (B) and (C), above, shall not
have been satisfied by or with respect to such junior Leasehold Mortgagee, the
next most junior Leasehold Mortgagee who shall have delivered a written request
to LESSOR pursuant to subparagraph 2(f) shall have paramount rights to the
benefits set forth in this subparagraph. In the event the conditions of clauses
(A), (B) and (C), above, shall not be satisfied with respect to such next most
junior Leasehold Mortgagee, the provisions of this subparagraph 2(f)(ii) shall
apply with respect to each Leasehold Mortgagee next most junior until such
conditions are satisfied. In the event of any dispute as to the respective
senior and junior priorities of any such Leasehold Mortgages, the certification
of such priorities by a title company
-28-
doing business in the state where the Premises are located, satisfactory to
LESSOR, shall be conclusively binding on all parties concerned. LESSOR'S
obligation to enter into a New Lease with any junior Leasehold Mortgagee shall
be subject to the receipt by LESSOR of evidence reasonably satisfactory to it
that the conditions of clauses (A), (B) and (C), above, have been satisfied with
respect to all senior Leasehold Mortgages.
(iii) The new lessee under any such New Lease shall be liable to
perform the obligations imposed on the LESSEE by such New Lease only during the
period such person has an ownership of the leasehold estate created by such New
Lease.
(iv) LESSOR shall have the right, without the consent of LESSEE, at
all times to encumber LESSOR'S fee simple interest in the Premises and LESSOR'S
interest in this Lease, provided that each such security instrument placed on
the Premises by LESSOR shall by its terms be subject and subordinate to this
Lease, to the right, title and interest of LESSEE in the Premises and the
Improvements, and to the rights and interests of any Leasehold Mortgagee
hereunder in this Lease (including, without limitation, the right of any
Leasehold Mortgagee to enter into a New Lease) and the interest of LESSEE in the
leasehold estate hereby created. Upon the request of LESSEE or any Leasehold
Mortgagee, LESSOR shall obtain (at LESSEE'S sole cost and expense) an agreement
in recordable form in which the holder of the mortgage on LESSOR'S fee simple
interest in the Premises and LESSOR'S interest in this Lease acknowledges that
such mortgage is subordinate to this Lease and to the rights of LESSEE and such
Leasehold Mortgagee as set forth above.
(v) The new lessee under such New Lease shall, upon entering into
such New Lease, acquire all of the right, title and interest of LESSEE in and to
any and all subleases of all or any part of the Premises and the Improvements
and upon the request of such new lessee, LESSEE shall execute, acknowledge and
-29-
deliver to such new lessee an assignment in recordable form evidencing such
conveyance.
g) Future Amendments. LESSOR and LESSEE shall cooperate in
-----------------
including in this Lease by suitable amendment from time to time any provision
which may be requested by any proposed Leasehold Mortgagee or may otherwise be
reasonably necessary, to implement the provisions of this Paragraph 2; provided,
however, that any such amendment shall not in any way affect the term hereby
demised or affect adversely in any material respect any rights of LESSOR under
this Lease.
h) No Merger. So long as any Leasehold Mortgage is in existence,
---------
unless all Leasehold Mortgagees shall otherwise expressly consent in writing,
the fee title to the Premises and the leasehold estate of LESSEE herein created
shall not merge but shall remain separate and distinct, notwithstanding the
acquisition of said fee title and said leasehold estate by LESSOR or by LESSEE,
or by a third party, by purchase or otherwise.
i) Right to Exercise Options. In the event that LESSEE fails to
-------------------------
exercise any options to renew or extend the term of this Lease within the time
required or fails to exercise any option granted under this Lease to purchase
the Premises or any part thereof, within the time permitted for exercise of such
option, LESSOR shall give each Leasehold Mortgagee written notice of LESSEE'S
failure to exercise any such option. Each Leasehold Mortgagee shall have thirty
(30) days after receipt of LESSOR'S written notice within which to exercise the
option which LESSEE failed to exercise, and any exercise of such option by a
Leasehold Mortgagee shall have the same force and effect as if the option had
been exercised within the required time by LESSEE, except that any time period
calculated from the date that LESSEE exercised or could have exercised such an
option shall be calculated instead from the date when the Leasehold Mortgagee
exercised the option.
-30-
LESSEE shall not have the right to exercise any option granted under
this Lease to purchase the Premises or any part thereof without the written
consent of each Leasehold Mortgagee.
In the event that LESSOR should become subject to any bankruptcy
proceedings, LESSEE shall not accept any rejection by LESSOR or LESSOR'S trustee
in bankruptcy as terminating this Lease but, instead, shall remain in possession
of the Premises to the full extent permitted by law. Without limiting the
foregoing, no such acceptance of any rejection of this Lease shall be effective
as to any Leasehold Mortgagee unless consented to in writing by such Leasehold
Mortgagee.
j) Arbitration. LESSOR shall give each Leasehold Mortgagee prompt
-----------
written notice of any arbitration or legal proceedings between LESSOR and LESSEE
involving obligations under this Lease. Each Leasehold Mortgagee shall have the
right to intervene in any such proceedings and be made a party to such
proceedings, and the parties hereto do hereby consent to such intervention. In
the event that any Leasehold Mortgagee shall not elect to intervene or become a
party to any such proceedings, LESSOR shall give the Leasehold Mortgagee written
notice of, and a copy of any award or decision made in any such proceedings,
which shall be binding on all Leasehold Mortgagees not intervening after receipt
of written notice of arbitration. In the event LESSEE shall fail to appoint an
arbitrator after notice from LESSOR, as provided herein, a Leasehold Mortgagee
(in order of seniority if there be more than one) shall have an additional
period of thirty (30) days, after notice by LESSOR that LESSEE has failed to
appoint such arbitrator, to make such appointment, and the arbitrator so
appointed shall thereupon be recognized in all respects as if he had been
appointed by LESSEE.
k) Estoppel Certificate. LESSOR shall, without charge, at any time
---------------------
and from time to time hereafter, but not more frequently than twice in any one-
year
-31-
period (or more frequently if such request is made in connection with any sale
or mortgaging of LESSEE'S leasehold interest or permitted subletting by LESSEE),
within fifteen (15) days after written request of LESSEE to do so, certify by
written instrument duly executed and acknowledged to any Leasehold Mortgagee or
purchaser, or proposed Leasehold Mortgagee or proposed purchaser, or any other
person, firm or corporation specified in such request: (i) as to whether this
Lease has been supplemented or amended, and if so, the substance and manner of
such supplement or amendment; (ii) as to the validity and force and effect of
this Lease, in accordance with its tenor; (iii) as to the existence of any known
default hereunder; (iv) as to the existence of any known offsets, counterclaims
or defenses hereto on the part of the LESSEE; (v) as to the commencement and
expiration dates of the term of this Lease; and (vi) as to any other matters as
may be reasonably so requested. Any such certificate shall estop LESSOR from
taking a position contrary to the position set forth in such certificate.
l) Notices. Notices from LESSOR to the Leasehold Mortgagee shall be
-------
mailed to the address furnished LESSOR pursuant to Paragraph 2 of this Lease,
and those from the Leasehold Mortgagee to LESSOR shall be mailed to the address
designated pursuant to the provisions of Section 19.08 hereof. Such notices,
demands and requests shall be given in the manner described in Section 19.08
hereof and shall in all respects be governed by the provisions of that section.
m) Waiver of LESSOR'S Lien. LESSOR does hereby waive any and all
-----------------------
lien or claim of lien against LESSEE, the Premises, the Improvements and all
other trade fixtures and equipment of LESSEE located on the Premises, arising
from this Lease or the relationship of LESSOR and LESSEE (including, without
limitation, any lien created pursuant to O.C.G.A. Section 44-14-341) (or to the
extent any such
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waiver is ineffective, LESSOR subordinates any such lien or claim of lien to the
liens created under any and all Leasehold Mortgages, whether now or hereafter
existing).
n) Subleases. LESSEE may sublease all or any part of the Premises
---------
without the consent of LESSOR. All subleases shall contain a provision which
requires the sublessee to attorn to LESSOR upon any termination of this Lease,
to any Leasehold Mortgagee or its designee that becomes the LESSEE under a New
Lease, and to any Leasehold Mortgagee or other purchaser following a
foreclosure. Any such attornment may be conditioned upon LESSOR or any such
Leasehold Mortgagee, or its designee, or a purchaser or assignee at a
foreclosure agreeing to recognize the sublease. All such subleases shall also
contain a provision recognizing that any Leasehold Mortgagee or its designee
may, at its option, foreclose its Leasehold Mortgage subject to the subleases
affecting the Premises and that such a foreclosure shall not terminate or
otherwise affect the subleases. The purchaser at such foreclosure shall assume
the obligations of LESSEE, as sublessor under the subleases, arising from and
after the date of foreclosure, but only for so long as such purchaser is the
owner of the Leasehold Estate, and such purchaser's liability for such
performance shall be limited to and enforceable solely against such purchaser's
interest in the Leasehold Estate.
o) Separate Agreement. Although the provisions of this Paragraph 2
------------------
are intended to be self-operative, LESSOR shall, on request, execute,
acknowledge and deliver to a Leasehold Mortgagee an agreement, prepared at the
sole cost and expense of LESSEE, in form satisfactory to the Leasehold Mortgagee
and LESSOR, among LESSOR, LESSEE and the Leasehold Mortgagee, agreeing to all of
the provisions of this Paragraph 2.
3. Condemnation. In the case of a temporary taking, LESSEE shall
------------
not be required repair or restore the Premises until such temporary taking is
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terminated. Such proceeds, after deducting from said proceeds all expenses
incurred by LESSOR or the Leasehold Mortgagee holding such proceeds in the
collection and administration of such proceeds, shall be made available to
LESSEE to effect such repairs as provided in Section 14.02. If any such proceeds
shall remain after the full completion of such repair, replacement, restoration
or reconstruction, the excess shall, subject to the rights of any Leasehold
Mortgagee, be disbursed to LESSEE.
4. Limited Liability of Leasehold Mortgage. For so long as any
---------------------------------------
Leasehold Mortgagee or its designee is the owner of the leasehold estate hereby
created, LESSOR shall look solely to the interest of such Leasehold Mortgagee or
its designee in the Premises and any improvements thereon in the event of the
breach or default by such Leasehold Mortgagee or its designee under the terms of
this Lease, and LESSOR hereby agrees that any judgment or decree to enforce the
obligations of such Leasehold Mortgagee or its designee shall be enforceable
only to the extent of the interest of such Leasehold Mortgagee or its designee
in the Premises and such improvements, and any such judgment shall not be
subject to execution on nor be a lien on, any assets of such Leasehold Mortgagee
or its designee other than the Premises and such improvements. Upon any
assignment by such Leasehold Mortgagee or its designee of the interest of the
LESSEE hereunder, such Leasehold Mortgagee or its designee shall be relieved
from liability hereunder.
SECTION 10.03. LESSOR'S ASSIGNMENT. Except as prohibited in this
-------------------
Section below, LESSOR shall be permitted to assign this lease or any of its
interest herein, to any assignee, without the necessity of any consent by
LESSEE. Notwithstanding the foregoing, without the prior written consent of
LESSEE, which may be arbitrarily denied, LESSOR shall not assign this Lease or
any of LESSOR'S interests herein to any individual, corporation, partnership,
trust or business entity of any nature, that at the time of such assignment is
engaged, directly or indirectly, within any of the fifty (50) states of
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the United States, District of Columbia, Puerto Rico, Canada or the United
Kingdom, (a) in the business of consumer credit reporting, collection of
consumer debt or obligations, consumer check credit clearance or guarantee,
consumer marketing studies or surveys, consumer reports for life or property and
casualty insurers, automation of data for use by insurers or providers in the
health care industry, design or implementation of alliances for delivery of
health care services, or (b) in any other business in which EQUIFAX INC. or any
of its affiliates shall then be engaged, if the revenues from such other
business comprised as much as two percent (2%) of the revenue of EQUIFAX INC.,
or its affiliates, realized throughout the preceding four (4) fiscal quarters of
EQUIFAX INC., on a consolidated basis, and if the revenues of such proposed
assignee, realized throughout its preceding four (4) fiscal quarters derived
from such other competing business or businesses, on a consolidated basis, were
as much as twenty percent (20%) of the gross revenues of such proposed assignee
during such fiscal period, on a consolidated basis. All of those currently
existing competitors in the business of consumer reporting, collection of
consumer debt of obligations, consumer check credit clearance or guarantee,
consumer marketing studies or surveys, consumer reports for life or property and
casualty insurers, automation of data for use by insurers or providers in the
health care industry or design or implementation of alliances for delivery of
health care services to which the prohibition of this Section 10.02 apply are
named in Exhibit "D" hereto. The provisions of this Section 10.03 are for the
-----------
benefit of EQUIFAX INC. and may be exercised by EQUIFAX INC. independently of
LESSEE. EQUIFAX INC. may, by NOTICE to LESSOR and LESSEE, update Exhibit D once
each calendar year.
SECTION 10.4. EASEMENTS. In connection with the development of the
---------
Premises, LESSEE shall have the right to grant one or more easements over the
Premises to utility providers and, if requested by such utility provider, LESSOR
agrees to join in the granting of such easements.
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ARTICLE XI
RIGHT TO CONTEST
----------------
SECTION 11.01. PERMITTED CONTESTS. LESSEE, at its expense, may
------------------
contest by appropriate legal proceedings conducted in good faith and with due
diligence the amount, validity or application, in whole or in part, of any Tax
or Charge referred to in 5.01 and 5.02 hereof, the application of any laws
referred to in Section 7.01 and any Lien referred to in 7.02 hereof; provided
that (a) LESSEE shall give LESSOR prior written notice of such contest, (b)
LESSEE shall first make all contested payments (under protest if it desires)
unless such proceeding shall suspend the collection thereof from LESSOR and from
Rent under this Lease or from the Premises, (c) no part of the Premises or any
interest therein or the Rent under this Lease shall be subjected thereby to
sale, forfeiture, foreclosure or interference, (d) LESSOR shall not be subject
to any civil or criminal liability for failure to comply with any governmental
regulation and the Premises shall not be subject to the imposition of any Lien
as a result of such failure other than the lien then being contested. LESSEE
agrees that it shall pay, and save LESSOR harmless from and against, any and all
losses, judgments, decrees and costs (including all reasonable attorneys' fees
and expenses) in connection with any Permitted Contest and that, promptly after
the final determination of every Permitted Contest, LESSEE shall fully pay and
discharge the amounts which shall be levied, assessed, charged or imposed or be
determined to be payable therein, together with all penalties, fines, interests,
costs and expenses resulting therefrom and will promptly comply with any
regulation of any governmental body or agency having jurisdiction under which
compliance is required.
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ARTICLE XII
INSURANCE
---------
SECTION 12.01. INSURANCE. LESSEE covenants and agrees that, except as
---------
permitted in Section 12.05 hereof, LESSEE will carry and maintain, at its sole
cost and expense, or cause to be carried and maintained, the following types of
insurance, in the amounts and in form hereinafter required:
(i) Liability insurance in the Commercial General Liability form (or
reasonable equivalent thereto) covering the Premises and LESSEE'S use thereof
against claims for personal injury or death and property damage occurring upon,
in or about the Premises, such insurance to be written on an occurrence basis
(not a claims made basis), with a Combined Single Limits amounts not less than
One Million Dollars ($1,000,000.00) per occurrence and not less than Two Million
Dollars ($2,000,000.00) aggregate for each policy year (specifically at this
location). If LESSEE cannot obtain such insurance on an occurrence basis at a
reasonable cost, LESSEE may maintain such insurance on a "claims made" basis but
in the event that LESSEE elects to maintain insurance on a "claims made" basis,
LESSEE must, as a condition precedent (i) give LESSOR written notice of the
change in insurance; and (ii) provide LESSOR with evidence that LESSEE has, to
the satisfaction of LESSOR, insured the "gap" in insurance coverage which
resulted from converting to a claims made basis of insurance. LESSEE shall also
maintain an "umbrella" policy insuring the risks insured under the Commercial
General Liability policy in an amount not less than Thirty Million Dollars
($30,000,000.00) for each policy year.
(ii) (A) insurance on the "All-Risk" or equivalent form on a
Replacement Cost Basis against loss or damage to the all improvements now or
hereafter located on the Premises; and in an amount sufficient to prevent LESSOR
or LESSEE from becoming a co-insurer of any loss, but in any event in amounts
not less than 90% of the actual cost to replace the improvements with
improvements which are sufficient for
-37-
continued use and occupancy by LESSEE at least comparable to such use and
occupancy as it existed immediately prior to the loss or damage, and including
utilities and amenities at least comparable to those repaired or replaced or
such greater amount as may be required by the Leasehold Mortgage. For the
purpose of determining actual cost of such replacement, it is agreed that
currently such cost shall be deemed $180.00 per square foot of finished and
usable space, which amount will be used to compute the required coverage amount
of the initial insurance and which amount may be adjusted by LESSOR and LESSEE
based upon the actual cost of such building. Required policy amounts of renewal
policies shall be the same as the initial policy, increased or decreased
annually by the percentage change reflected in the R. S. Means Square Foot Cost
Index for Atlanta, Georgia published by ▇. ▇. ▇▇▇▇▇ Company from its index as of
twelve (12) months earlier; provided, however, that if prior to a renewal date,
LESSEE obtains an appraisal of such actual cost of replacement by a qualified
independent real property appraiser setting forth a lesser then current cost of
replacement, such lesser cost of replacement shall be the policy amount for the
renewal period and subsequent periods, subject to adjustment by the aforesaid
Index.
(B) boiler and machinery insurance covering losses to or from any
steam boilers, pressure vessels or similar apparatus requiring inspection under
applicable state or municipal laws or regulations which are located at the
Premises or on any other building systems for which such coverage is
commercially available at reasonable rates, in amounts determined by LESSEE to
be appropriate or for such higher amounts as may at any time be reasonably
required by LESSOR and having a deductible of not more than Ten Thousand Dollars
($10,000.00); coverage shall be on a broad form comprehensive basis; provided,
however, that the foregoing limits shall only be effective in the event that the
insurance maintained by LESSEE pursuant to Section 12.01 (ii)(A) shall insure
damage to other property that results from accidents involving the boiler and
-38-
machinery, and in the event that such coverage is not in force, then the amount
of coverage under this subclause (B) shall be Fifty Million Dollars and No/100
Dollars ($50,000,000.00) with a deductible of not more than Two Million Dollars
and No/100 Dollars ($2,000,000.00; and
(C) worker's compensation insurance covering LESSEE'S employees and
those of its subsidiaries and affiliates to the extent necessary to protect
LESSOR and the Premises against worker's compensation claims.
SECTION 12.02. POLICIES. All policies of the insurance provided for in
--------
Section 12.01 shall be issued in form acceptable to the Insurance Commissioner
of the State of Georgia by responsible insurance companies licensed to do
business in the State of Georgia. Each and every such policy with the exception
of the worker's compensation policy:
(i) if carried pursuant to Section 12.01(i), shall name LESSOR, any
mortgagee of LESSOR and any Leasehold Mortgagee as an designated additional
insured as their interest may appear. The coverage described in Section 12.01
(ii) shall also name LESSOR, LESSEE and its Leasehold Mortgagee as loss payee as
its interest may appear;
(ii) shall be described as to coverage and amounts in a certificate
of insurance from the appropriate insurance carrier delivered to LESSOR prior to
the commencement of this Lease. Renewal certificates shall be procured by LESSEE
and delivered to LESSOR within thirty (30) days prior to the expiration of such
policies, describing coverage and amounts applicable under this Lease and as
reflected in such policies;
(iii) shall contain a provision that the insurer will give to LESSOR
and such other parties in interest at least ten (10) days notice in writing in
advance of cancellation for non-payment of premiums; and
-39-
(iv) shall be written as a primary policy which does not contribute
to and is not in excess of coverage which LESSOR may carry.
(c) Any insurance provided for in Section 12.01 may be maintained by means
of a policy or policies of blanket insurance, covering additional items or
locations or insureds, provided, however, that LESSOR and any other parties in
interest as designated in this Lease shall be named as an additional insured
thereunder as their interests may appear, and the requirements set forth in this
Section 12.01 are otherwise satisfied.
SECTION 12.03. FAILURE TO CARRY. Except as permitted in Section 12.05
----------------
hereof, in the event that LESSEE shall fail to carry and maintain the insurance
coverages set forth in this Section 12.01, LESSOR may upon thirty (30) days
notice to LESSEE (unless such coverages will lapse in which event no such notice
shall be necessary) procure such policies of insurance and LESSEE shall promptly
reimburse LESSOR therefor.
SECTION 12.04. INSURANCE REVIEW. Each party may, at any time, but not
----------------
more than one (1) time in any twelve (12) month period, require a review of the
insurance coverage and limits of liability set forth in Section 12.01 to
determine whether the coverage and the limits are reasonable and adequate in the
then existing circumstances. The review shall be undertaken on a date and at a
time set forth in a party's notice requesting a review and shall be conducted at
the Premises. If the parties are, after a review, unable to agree on either the
coverage or the limits, then the parties shall arbitrate the issue through the
American Arbitration Association, or its then successor. In rendering the
decision the arbitrators shall consider the requirements of Section 12.01, the
cost of the insurance to be obtained, inflation, changes in condition, and the
insurance then being carried by similar developments in the area of the
Premises.
SECTION 12.05. SELF INSURANCE. LESSEE may become a "self insurer" of the
--------------
first Ten Million Dollars ($10,000,000.00) of risks insured pursuant to clause
12.01(i) so long as LESSEE maintains the umbrella insurance required by clause
12.01(i) and LESSEE
-40-
may become a "self insurer" of the first Ten Million Dollars ($10,000,000.00) of
the risks insured pursuant to clause 12.01(ii).
ARTICLE XIII
FIRE AND OTHER CASUALTIES
-------------------------
SECTION 13.01. DAMAGE. If the building or other improvements on the
------
Premises shall be damaged or destroyed by fire or other casualty, LESSEE and the
Leasehold Mortgagee, at LESSEE'S sole cost and expense, shall promptly and
diligently proceed to adjust the loss with the insurance companies and arrange
for the disbursement of insurance proceeds, and to the extent of the insurance
proceeds paid plus (i) the amount of any "deductible," and (ii) the amount which
LESSEE has elected to self-insure under Section 12.05, repair, rebuild or
replace such buildings, the parking garage, and other improvements, so as to
restore the Premises. The net proceeds of any insurance recovered by reason of
such damage or destruction in excess of the cost of adjusting the insurance
claim and collecting the insurance proceeds (such excess being referred to
herein as the "Net Insurance Proceeds") shall, if such Net Insurance Proceeds
exceeds Five Million and No/Dollars ($5,000,000.00), be held by the Leasehold
Mortgagee (provided that such Leasehold Mortgagee is a bank, savings
association, insurance company or other similar institutional lender having
capital surplus and undivided profits of at least $50,000,000.00; herein called
"Institutional Lender"), or, if no Institutional Lender then holds a mortgage
lien, or deed to secure debt on LESSEE'S Leasehold interest in the Premises, by
any escrow agent which is reasonably acceptable to LESSOR and LESSEE and the
Leasehold Mortgagee, if any; and the Net Insurance Proceeds shall be released
for the purpose of paying the fair and reasonable cost of restoring the building
and other improvements on the Premises. Such Net Insurance Proceeds shall be
released to LESSEE, or to LESSEE'S contractors, from time to time as the work
progresses,
-41-
pursuant to such requirements and limitations as may be reasonably acceptable to
LESSEE and LESSEE'S Leasehold Mortgagee (if the mortgagee so requires),
including, without limitation, lien waivers from each of the contractors,
subcontractors, materialmen and suppliers performing the work.
If the Net Insurance Proceeds are less than Five Million Dollars
($5,000,000.00), such Net Insurance Proceeds may be held by LESSEE or LESSEE'S
Leasehold Mortgagee and used by LESSEE or LESSEE'S Leasehold Mortgagee to pay
the fair and reasonable cost of restoring such building and other improvements.
If the Net Insurance Proceeds (regardless of the amount thereof) exceed the
full cost of the repair, rebuilding or replacement of the damaged building or
other improvements, then the amount of such excess Net Insurance Proceeds shall
be paid to LESSEE or retained by the insurance carrier upon the completion of
such repair, rebuilding or replacement.
SECTION 13.02. RIGHT TO TERMINATE. In the event that the property loss,
------------------
fire or other casualty occurs during the last three (3) years of the Term, or of
any extension thereof, LESSEE shall have the option, exercisable by written
notice to LESSOR, delivered within thirty (30) days of such fire or casualty, to
terminate this Lease and thereby be relieved of the obligation to make the
restorations required by Section 13.01. The termination shall not be effective
until LESSEE assigns all property insurance proceeds, except the part thereof
allocable to leasehold improvements, furniture, fixtures and LESSEE'S equipment
and personal property less the amount owed to the Leasehold Mortgagee, together
with the right to adjust the loss, to LESSOR, or, if LESSEE is a self-insurer
pursuant to Section 12.05, LESSEE pays to LESSOR the fair and reasonable cost of
such restoration or repair as established by an architect and a contractor, each
experienced in repairing and restoring buildings and improvements damaged by
fire and other casualties and mutually selected by LESSOR and LESSEE. The cost
and fees of
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such architect and contractor shall be paid by LESSEE. Notwithstanding the
foregoing, LESSOR shall not settle with the insurance carrier without LESSEE'S
consent, which consent shall not be unreasonably withheld or delayed.
ARTICLE XIV
CONDEMNATION
------------
SECTION 14.01. TOTAL CONDEMNATION. If all of the Premises or such a
------------------
material portion of the Premises that the remaining portion is not usable by
LESSEE for its intended purpose, is condemned or taken by the United States or
any other legal entity having the power of eminent domain with respect thereto,
this Lease shall terminate as of the date that title to the Premises or portion
thereof vests in the condemnor; provided, however, that such termination shall
not benefit the condemnor and shall be without prejudice to the rights of either
LESSOR or LESSEE to recover just and adequate compensation from the condemning
authority.
SECTION 14.02. PARTIAL CONDEMNATION. If a portion of the Premises is
--------------------
condemned or taken by the United States or any other legal entity having the
power of eminent domain with respect thereto, and the part of the Premises
remaining is usable by LESSEE for its intended purpose then this Lease shall
remain in full force and effect and LESSEE, to the extent of any award to LESSEE
is sufficient therefor, shall forthwith cause the Premises to be restored to as
nearly the same condition as existed prior to such taking. Monthly Rent shall
be reduced by .8333% of the amount of the condemnation award paid to LESSOR
because of such taking and not applied to restoration.
SECTION 14.03. DIVISION OF CONDEMNATION AWARD.
------------------------------
(a) In the event of a taking pursuant to (S)14.01 (a "total Taking"),
the awards shall be divided between the LESSOR and the LESSEE so that (i) the
LESSEE shall receive that portion of the award which is attributable to the
value of the leasehold
-43-
estate created by this Lease and any and all improvements on the Premises, and
(ii) the LESSOR shall receive that portion of the award which is attributable to
the Land as benefited and encumbered by this Lease and the reversionary value of
any and all improvements thereon.
(b) Notwithstanding any other provision of this Article 14 to the
contrary, all awards in connection with a Total Taking shall first be paid to
Leasehold Mortgagees, in order of priority, up to that amount which is the
lesser of (i) the total of all awards in such taking, or (ii) the amount
necessary to satisfy in full all obligations secured by Leasehold Mortgages held
by such Leasehold Mortgagees, and then the remaining proceeds and awards shall
be divided between LESSOR and LESSEE in accordance with the principles of this
Article 14; provided, however, that for the purposes of so dividing the
remaining proceeds between LESSOR and LESSEE, the amounts paid to the Leasehold
Mortgagees shall be deemed to have been paid out of LESSEE'S award and shall not
reduce LESSOR'S award.
SECTION 14.04. GENERAL. Nothing contained in this Lease to the
-------
contrary shall be deemed to prohibit LESSOR or LESSEE from introducing into any
condemnation proceeding or proceedings with respect to the Premises such
appraisals or other estimates of value, loss and/or damage as each may in its
discretion determine.
ARTICLE XV
DEFAULT
-------
SECTION 15.01. LESSEE EVENTS OF DEFAULT. The occurrence of any of the
------------------------
following acts, events or conditions, regardless of the pendency of any
proceeding which has or might have the effect of preventing LESSEE from
complying with the terms, conditions or covenants of this Lease, shall
constitute an "Event of Default" under this Lease:
-44-
(a) LESSEE fails to make any payment of Rent or Additional Rental
within ten (10) days of the date LESSEE received from LESSOR written
notice of such failure to pay; or
(b) LESSEE fails or refuses to fulfill or perform any other
covenant, agreement or obligation of LESSEE hereunder and such failure
or refusal shall continue without correction being commenced and
diligently pursued for a period of thirty (30) consecutive calendar
days from and after the date upon which LESSEE receives from LESSOR
written notice of such default, or if such default cannot reasonably be
cured within thirty (30) days, LESSEE shall have failed to commence
curing such default or shall fail to diligently pursue the curing of
such default.
SECTION 15.02. TERMINATION. Upon the occurrence of any Event of
-----------
Default hereunder, LESSOR shall have the right, at its election and regardless
of the availability to LESSOR of any other remedy under this Lease or by law or
in equity provided, to give LESSEE (then or at any time thereafter while any
such Event of Default exists or continues) written notice of the termination of
this Lease as of the date specified in such notice of termination, which date
shall be not less than ten (10) days after the date of the giving of such
notice. On such termination date this Lease and the Term and estate herein
granted shall, subject to the provisions of 15.05 hereof, expire and terminate
by limitation, and all rights of LESSEE under this Lease shall expire and
terminate, unless prior to such termination date LESSEE pays to LESSOR all
arrears of Rent and Additional Rental payable by LESSEE under this Lease
(together with Interest thereon) and all costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) incurred by or on behalf of
LESSOR by reason of any Event of Default and fully cures and corrects any Event
of Default then existing hereunder to the satisfaction of LESSOR.
-45-
SECTION 15.03. REENTRY BY LESSOR. Whether or not this Lease has been
-----------------
terminated pursuant to 15.02 hereof, if an Event of Default occurs, LESSOR may,
for and on behalf of LESSEE and as LESSEE'S legal representative, enter upon and
repossess the Premises or any part thereof by force, summary proceedings,
ejectment or otherwise, and may dispossess LESSEE and remove LESSEE and all
other persons and any and all property therefrom. LESSOR shall not be liable to
LESSEE or to any person or entity claiming by, through or under LESSEE for or by
reason of any such entry, repossession or removal.
SECTION 15.04. RIGHTS UPON REPOSSESSION. At any time or from time to
------------------------
time after the repossession of the Premises or any part thereof pursuant to
15.03 hereof, and whether or not this Lease shall have been terminated pursuant
to 15.02 hereof, LESSOR may at its option (a) repair or alter the Premises in
such manner as LESSOR may deem necessary or advisable so as to put the Premises
in good order and make the same rentable, and (b) relet or operate the Premises
or any part thereof for the account of LESSEE for such term or terms (which may
be greater or less than the period which would otherwise have constituted the
remainder of the Term) on such conditions (which may include concessions or free
rent) and for such uses as LESSOR in its discretion may determine, and may
collect and receive the rents therefor. All costs and expenses incurred by
LESSOR in the exercise of its right to reenter and to relet the Premises, or any
part thereof, including, without limitation, reasonable attorneys' fees,
construction and alteration costs, brokerage fees and all such similar and
dissimilar expenses, shall be charged to LESSEE and shall be and become the due
obligation of LESSEE to pay LESSOR, as Additional Rental, hereunder. All rental
and other sums collected by LESSOR during any period of reletting of the
Premises shall be and remain the property of LESSOR and the total collected
amount thereof, to the extent it exceeds the sum of all costs and expenses
incurred in reletting as aforesaid, is herein defined as the "Reletting
-46-
Proceeds" which, to the extent such Reletting Proceeds shall ever exceed all
Rent and Additional Rental due from LESSEE to LESSOR hereunder and provided no
termination has been declared, shall be and belong to LESSEE. LESSOR shall not
be responsible or liable for any failure to relet the Premises or any part
hereof or for any failure to collect any rent due upon any such reletting, but
LESSOR shall make reasonable efforts to mitigate LESSOR'S damages. No
repossession of the Premises by LESSOR shall be construed as an election to
terminate this Lease and the Term herein demised unless, in conjunction
therewith, a written notice of termination evidencing such intention is given to
LESSEE as provided in 15.02 hereof.
15.05. LIABILITY OF LESSEE. No termination of this Lease pursuant to
-------------------
15.02 hereof or by operation of law or otherwise (except as expressly provided
herein) and no repossession of the Premises or any part thereof pursuant to
15.03 hereof or otherwise, shall relieve LESSEE of its liability and obligations
hereunder, all of which shall survive such termination or repossession. LESSOR
shall be entitled, at its election, to ▇▇▇ for and receive each increment of
Rent and Additional Rental as and when the same shall become due, irrespective
of whether LESSOR shall have terminated this Lease or reentered and relet the
Premises or any portion thereof, provided only that in the event of reletting,
LESSEE shall be entitled to a credit for the Reletting Proceeds, if any, up to
the amount of Rent and Additional Rental that would otherwise have been due from
LESSEE to LESSOR hereunder. LESSOR agrees to make reasonable efforts, and to
permit LESSEE to make reasonable efforts to mitigate the liability and
obligations of LESSEE hereunder.
SECTION 15.06. RIGHT OF LESSOR TO PERFORM FOR LESSEE. Notwithstanding
-------------------------------------
any other provision of this Lease to the contrary, upon the occurrence of any
Event of Default hereunder, LESSOR may, subject to the rights of the Leasehold
Mortgagee at its exclusive option, take, on behalf of LESSEE, whatever steps it
deems
-47-
reasonably necessary to cure such Event of Default and to charge LESSEE for the
costs and expenses attributable thereto. LESSEE shall pay all costs and expenses
immediately upon receipt of a statement thereof from LESSOR. Any such amounts,
paid or unpaid, shall be deemed Additional Rental hereunder.
SECTION 15.07. GENERAL. Each right, power and remedy of LESSOR
-------
provided in this Lease or now or hereafter existing at law or in equity or by
statute or otherwise shall be cumulative and concurrent and shall be in addition
to each and every other right, power or remedy provided in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise. In addition
to any other remedy provided in this Lease, LESSOR shall be entitled, to the
extent permitted by applicable law, to injunctive relief in the event of the
violation or attempted or threatened violation of any term, condition or
covenant of this Lease or to a decree compelling performance thereof. The
exercise by LESSOR of any one or more of the rights, powers or remedies provided
in this Lease or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by LESSOR of any
such right, power or remedy.
SECTION 15.08. LESSOR DEFAULT. If LESSOR shall be in default in the
--------------
performance of any obligation required to be performed by LESSOR under this
Lease, and such default continues for a period of thirty (30) days following
written notice of such default from LESSEE, then LESSEE may exercise any of its
rights provided at law or in equity, including, but not limited to, the right to
offset or ▇▇▇▇▇ Rent, or correct or cure any such default by LESSOR and apply
the next occurring Rent to the cost thereof, all of which shall be cumulative
and concurrent remedies of LESSEE and shall be an addition to each and every
other right, power and remedy provided to LESSEE and shall be an addition to
each and every other right, power and remedy provided by LESSEE in this Lease or
now or hereinafter existing, at law or in equity, by statute or otherwise.
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LESSEE agrees that, should LESSOR'S mortgagee notify LESSEE in writing of the
existence of any such mortgage or deed to secure debt encumbering the Premises,
LESSEE will simultaneously give LESSOR'S mortgagee any default provided to
LESSOR, and LESSOR'S mortgagee may cure such default (and LESSEE will accept
such cure) on behalf of the LESSOR.
ARTICLE XVI
ENVIRONMENTAL MATTERS
---------------------
SECTION 16.01. DEFINITIONS. For purposes of this Article XVI:
-----------
(i) "Contamination" as used herein means the uncontained or
uncontrolled presence of or release of Hazardous Substances into any
environmental media and into or on any portion of the Premises or any part
thereof so as to require remediation, cleanup or investigation under any
applicable Environmental Law.
(ii) "Environmental Laws" as used herein means all federal,
state, and local laws, regulations, orders, permits, ordinances, and the
like concerning protection of human health and/or the environment.
(iii) "Hazardous Substances" as used herein means any hazardous
or toxic substance or waste as those terms are defined by any applicable
federal or state law or regulation (including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. 9601 et. sec. ("CERCLA") and the Resource Conservation and Recovery
Act, 42 U.S.C. 6901 et. sec. ["RCRA"]) and petroleum products and oil.
SECTION 16.02. COMPLIANCE. LESSEE warrants that all construction and
----------
activities on the Premises, during the course of this Lease will be conducted in
compliance with Environmental Laws. LESSEE, at LESSEE'S sole cost and expense,
shall be
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responsible for obtaining all permits or licenses or approvals under
Environmental Laws necessary for LESSEE'S operation of its business on the
Premises and shall make all notifications and registrations required by any
applicable Environmental Laws. LESSEE, at LESSEE'S sole cost and expense, shall
at all times comply with the terms and conditions of all such permits, licenses,
approvals, notifications and registrations and with any other applicable
Environmental Laws applicable to the construction of any improvements on the
Premises and the use occupancy and maintenance or repair of the Premises. LESSEE
warrants that it will obtain all such permits, licenses or approvals and made
all such notifications and registrations required by any applicable
Environmental Laws necessary for LESSEE'S operation of its business on the
Premises.
SECTION 16.03. HAZARDOUS SUBSTANCES. Except in compliance with all
--------------------
laws and/or regulations and the requirements of any insurance carrier insuring
the Premises, LESSEE shall not cause or permit any Hazardous Substances to be
brought upon, kept or used in or about the Premises. Except in compliance with
all laws and/or regulations and the requirements of any insurance carrier
insuring the Premises, LESSEE shall not cause or permit the release of any
Hazardous Substances into any environmental media such as air, water or land, or
into or on the Premises. If such release shall occur during the Term or any
extension thereof, LESSEE shall (i) immediately take all necessary steps to
contain, control and clean up such release and any associated Contamination,
(ii) notify LESSOR, and (iii) take any and all other action which may be
required by Environmental Laws or governmental agencies. LESSEE shall under no
circumstances whatsoever (i) treat, store or dispose of any Hazardous Waste (as
all such terms are defined by RCRA, and the regulations promulgated thereunder)
within the Premises, (ii) discharge Hazardous Substances into the storm sewer
system serving the Premises; or (iii) install any underground storage tank or
underground piping on or under the Premises,
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other than as shall be reasonably required in the use and occupancy of the
Premises and then only in full compliance with all laws and/or regulations.
SECTION 16.04. INDEMNITY BY LESSEE. LESSEE shall and hereby does
-------------------
indemnify LESSOR and hold LESSOR harmless from and against any and all expense,
loss, and liability suffered by LESSOR (with the exception of those expenses,
losses, and liabilities arising from LESSOR'S own negligence or willful act), by
reason of LESSEE'S improper storage, generation, handling, treatment,
transportation, disposal, or arrangement for transportation or disposal, of any
Hazardous Substances (whether accidental, intentional, or negligent) or by
reason of LESSEE'S breach of any warranty or of the provisions of this Article
XVI. Such expenses, losses and liabilities shall include, without limitation,
(i) any and all expenses that LESSOR may incur to comply with any Environmental
Laws as a result of LESSEE'S failure to comply therewith; (ii) any and all costs
that LESSOR may incur in studying or, if required by applicable law or
regulation, remedying any Contamination at or arising from the Premises, (iii)
any and all costs that LESSOR may incur in studying, and, if required by
applicable law or regulation removing and/or disposing or otherwise addressing
any Hazardous Substances that LESSEE improperly stored, generated, handled,
treated, transported or disposed of or failed to remove from the Premises; (iv)
any and all fines, penalties or other sanctions assessed upon LESSOR by reason
of LESSEE'S failure to comply with Environmental Laws; and (v) any and all legal
and professional fees and costs incurred by LESSOR in connection with the
foregoing. The indemnity contained herein shall survive the termination or
expiration of this Lease but only with regard to conditions or provisions which
LESSEE is obligated by this Lease to prevent, correct, or comply with during the
Term of this Lease and any extensions thereof.
SECTION 16.05. INDEMNITY BY LESSOR. LESSOR shall and hereby does
----------------------
indemnify LESSEE and hold LESSEE harmless from and against any and all expense,
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loss, and liability suffered by LESSEE (with the exception of those expenses,
losses, and liabilities arising from LESSEE'S own negligence or willful act), by
reason of LESSOR'S improper storage, generation, handling, treatment,
transportation, disposal, or arrangement for transportation or disposal, of any
Hazardous Substances (whether accidental, intentional, or negligent). Such
expenses, losses and liabilities shall include, without limitation, (i) any and
all expenses that LESSEE may incur to comply with any Environmental Laws as a
result of LESSOR'S failure to comply therewith; (ii) any and all costs that
LESSEE may incur in studying or, if required by applicable law or regulation,
remedying any Contamination at or arising from the Premises, (iii) any and all
costs that LESSEE may incur in studying, and, if required by applicable law or
regulation removing and/or disposing or otherwise addressing any Hazardous
Substances that LESSOR improperly stored, generated, handled, treated,
transported or disposed of or failed to remove from the Premises; (iv) any and
all fines, penalties or other sanctions assessed upon LESSEE by reason of
LESSOR'S failure to comply with Environmental Laws; and (v) any and all legal
and professional fees and costs incurred by LESSEE in connection with the
foregoing. The indemnity contained herein shall survive the termination or
expiration of this Lease but only with regard to conditions or provisions which
LESSOR is obligated by this Lease to prevent, correct, or comply with during the
Term of this Lease and any extensions thereof.
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ARTICLE XVII
BROKERAGE PROVISIONS
--------------------
SECTION 17.01. NO BROKER. LESSOR and LESSEE represent and warrant
---------
that no broker, commission agent, real estate agent or salesman, except for
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Properties, LLC, and CRE Services, L.L.C. who will be paid a
commission or otherwise compensated by LESSOR has participated in the
negotiation of this Lease, its procurement or in the procurement of LESSOR or
LESSEE and that no such person, firm or corporation is or shall be entitled to
the payment of any fee, commission, compensation or other form of remuneration
in connection herewith in any manner. LESSOR and LESSEE shall and do hereby
mutually indemnify and hold harmless each other from and against any and all
loss, cost, claim, damage or expense (including court costs and reasonable
attorneys' fees) arising from and out of or in any manner connected with this
Lease or any claim (meritorious or otherwise), demand or assertion which is in
the nature of a brokerage fee, commission or other compensation for services
rendered. The terms of this 17.01 shall survive any termination of this Lease.
ARTICLE XVIII
OPTION TO PURCHASE, RIGHTS OF FIRST REFUSAL
-------------------------------------------
SECTION 18.01. OPTION TO PURCHASE. LESSOR hereby grants to LESSEE the sole and
------------------
exclusive right and option to purchase LESSOR'S interest in the Premises during
the following periods (the "Option Periods"): (i) during the month of January in
the year 2019; (ii) during the month of January in the year 2029; (iii) during
the month of January in the year 2039; and (iv) at the end of the Term of this
Lease. To exercise this option to purchase, LESSEE must, during one of the
Option Periods, deliver to LESSOR, written notice of LESSEE'S exercise of the
Option to Purchase. Upon the exercise of this option,
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this Lease shall become a firm and binding contract of purchase and sale for the
LESSOR'S interest in the Premises on the terms and conditions herein set forth.
If LESSEE shall fail to timely exercise this option to purchase during any one
of the Option Periods, then, at the end of the fourth Option Period, this
Section 18.01 and the Option to Purchase granted hereby, shall automatically
become null and void.
A. The Purchase Price of the LESSOR'S interest in the Premises shall
be:
(i) in the year 2019 Nine Million and no/100 Dollars
($9,000,000.00);
(ii) in the year 2029 Eleven Million and no/100 Dollars
($11,000,000.00);
(iii) in the year 2039 Fifteen Million and no/100 Dollars
($15,000,000.00); and
(iv) at the end of the Term, a price determined by arbitration
conducted as follows:
(a) LESSOR and LESSEE shall each appoint an arbitrator, and the two
arbitrators so appointed shall select a third arbitrator. Each of the three
arbitrators must be thirty-five years of age or older, must have been engaged in
buying, selling, or brokering real property in Metropolitan Atlanta, Georgia for
a minimum of the ten years next preceding the date of selection, and must have
no direct or indirect affiliation with either LESSOR or LESSEE or an affiliate
of either LESSOR or LESSEE. If either LESSOR or LESSEE fails, within a
reasonable time, to appoint an arbitrator, the other party may petition the
court of original jurisdiction in ▇▇▇▇▇▇ County, Georgia, for such appointment.
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(b) LESSOR and LESSEE shall each submit to the panel of arbitrators a
proposed Purchase Price for the Premises, and both LESSOR and LESSEE shall be
entitled to present evidence to the panel in support of the price named by it.
(c) The arbitrators must, by unanimous decision, select either the
Purchase Price submitted by LESSOR or the Purchase Price submitted by LESSEE, as
the Purchase Price for the LESSOR'S interest in the Premises. In no event shall
the panel compromise or select a Purchase Price other than the Purchase Price
submitted by LESSOR or the Purchase Price submitted by LESSEE.
(d) Each party shall pay its own expenses of arbitration including the
fees and expenses of the arbitrator selected by (or for) it. The fees and
expenses of the third arbitrator shall be split between LESSOR and LESSEE.
The Purchase Price, as adjusted pursuant to the provisions provided for
in this Agreement, shall be paid by LESSEE to LESSOR at the Closing, by cash,
federal funds wire transfer or by any other source of immediately available
funds.
B. The costs and expenses of the purchase and sale shall be paid at
or before Closing as follows:
(a) LESSOR shall pay the following costs and expenses: (i) the
State of Georgia transfer tax due with respect to the transfer of the Land and
(ii) the fees and expenses of LESSOR'S attorneys.
(b) LESSEE shall pay the following costs and expenses: (i) the
recording and filing fees for the Limited Warranty Deed; (ii) any title
examination fees or charges incurred by LESSEE; (iii) all premiums for any
owner's and lender's title insurance policies obtained by LESSEE and relating to
the Premises; (iv) the cost of any survey; (v) the fees and expenses of LESSEE'S
attorneys; and (vi) any other costs and expenses actually incurred by LESSOR.
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C. The Closing shall be held within one hundred twenty (120) days of
the date of exercise of the Option at a time and place in Atlanta, Georgia
designated by LESSEE.
D. On the Closing Date, the Closing shall occur as follows, subject
to the satisfaction of all the terms and conditions of this Agreement, and with
all LESSEE'S deliveries to be made concurrently with LESSOR'S deliveries:
(a) LESSOR shall deliver to LESSEE a limited warranty deed in
recordable form, conveying the Premises to LESSEE free and clear of any
encumbrance except the Permitted Exceptions of this Lease and any encumbrances
created by LESSEE.
(b) LESSOR shall deliver to LESSEE a certification that LESSOR is
not a foreign person within the meaning of Sections 1445 and 7701 of the
Internal Revenue Code of 1986, as amended.
(c) LESSOR shall deliver to LESSEE a certification that LESSOR is
not a non-resident of Georgia within the meaning of O.C.G.A. Section 48-7-128,
as amended.
(d) LESSOR shall deliver to LESSEE'S title insurer a title
affidavit stating (with such exceptions as are necessary to make the facts
stated therein true and correct to the best of LESSOR'S knowledge at the time
(i) that LESSOR has no knowledge of any boundary line disputes with respect to
the Premises; (ii) that there are no parties in, or having any right or claim
to, possession of the Premises other than LESSEE and those in possession under
LESSEE; and (iii) that no improvements or repairs have been made by, or for the
account of, or at the instance of, LESSOR to or on the Premises within three (3)
months preceding the Closing Date for which payment has not been made.
(e) LESSOR shall deliver appropriate evidence of LESSOR'S
authority to consummate the sale of the Premises as contemplated by this
Section.
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(f) LESSEE shall pay to LESSOR the Purchase Price in the manner
specified above.
(g) In addition to all documents, instruments and agreements
expressly provided for in this Section, LESSOR and LESSEE shall each execute
and/or provide such other documents as may be reasonably and customarily
required at the time to effectuate the purposes of this Lease.
E. In the event that LESSOR defaults in the sale of its interest in
the Premises to LESSEE, LESSEE shall be entitled to specific performance of its
rights under this Section 18.01, LESSOR hereby acknowledging that LESSEE'S
damages in the event of such default would be difficult to ascertain. If LESSEE
shall default in the purchase of the Premises after exercising its option to
purchase, LESSEE shall forfeit any subsequent options to purchase hereunder.
▇. ▇▇▇▇▇▇ may desire to accomplish a sale of the Premises by means of
an exchange of "like-kind" property which will qualify as such under Section
1031 of the Internal Revenue Code of 1954 and all regulations issued thereunder
or any successor provisions of the Internal Revenue Code permitting tax free
exchanges of land. LESSEE is willing to cooperate with LESSOR in an exchange,
provided LESSEE incurs no additional expenses or liability, is not delayed in
its acquisition of the Property, and does not take title to the exchange
property. LESSEE agrees that LESSEE will, at the direction of LESSOR or a third
party intermediary acting at LESSOR'S direction, pay all proceeds of the sale of
the Property to the third party intermediary who will facilitate the like-kind
exchange for LESSOR pursuant to an intermediary agreement between LESSOR and
such third party intermediary. LESSOR acknowledges that, upon payment of such
proceeds by LESSEE to such third party intermediary, LESSEE will have fulfilled
its obligation under this Agreement.
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SECTION 18.02. FIRST REFUSAL. If, at anytime during the Term of this
-------------
Lease, either LESSOR or LESSEE receives an offer to purchase the Premises, in
the case of the LESSOR, or this Lease and/or the building on the Premises, in
the case of the LESSEE, and LESSOR or LESSEE (whichever receives such offer),
and intends to accept such offer, then it shall, prior to accepting such offer,
give the other party (the electing party) a copy of such offer. The LESSEE, if
it is the electing party, shall have ninety (90) days from receipt of such offer
and the LESSOR, if it is the electing party, shall have one hundred eighty (180)
days from receipt of such offer in which to elect, by written notice to the
party initially receiving such offer, to purchase the Premises, or this Lease
and/or the building on the Premises, on the exact terms and conditions (except
for the closing date) contained in such offer.
If the electing party elects to purchase, then the purchase and sale shall
be consummated within sixty (60) days from the date of delivery of the electing
party's notice that it will accept such offer, such closing to be at the time
and place designated by such electing party by a second notice delivered to the
first party at lease twenty (20) days prior to the Closing. At the Closing,
LESSOR and LESSEE shall consummate the transaction in accordance with the
initial offer.
The provisions of this Section 18.02 shall not apply to a transfer (i) by
LESSOR or LESSEE to a "Permitted Transferee" (defined below), of (ii) or to any
transfer in connection with a foreclosure, by deed in lieu of foreclosure or by
a Leasehold Mortgagee, or (iii) to any transfer in connection with the
financing, by LESSEE, of improvements on the Premises(including, but not limited
to, a synthetic lease or a sale/leaseback transaction) or to the transfer in
connection with the exercise of any purchase options which may be contained in
the synthetic lease or sale/leaseback documents or (iv) any sale of more than
one property in a portfolio sale by ▇. ▇▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇, ▇▇. and/or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and/or Gwinnett ▇▇▇▇▇, ▇.▇. and/or any
entity owned by D. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. and/or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
As used herein, the term "Permitted Transferee" shall mean any entity into
which LESSEE is merged or consolidated, any entity acquiring substantially all
of the assets of LESSEE, and, as to LESSOR, any entity in which D. ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and/or their respective estates, and/or
Gwinnett ▇▇▇▇▇, ▇.▇. owns an interest, but in all events subject to Section
10.03, and as to LESSEE, any entity which is a parent corporation or subsidiary
corporation of Equifax Inc.
ARTICLE XIX
MISCELLANEOUS
-------------
SECTION 19.01. LESSOR LIABILITY. No owner of the Premises, whether
----------------
or not named herein, shall have liability hereunder after such owner ceases to
hold title to the Premises, except for obligations which may have theretofore
accrued. Neither LESSOR nor any officer, director, shareholder, partner or
principal, whether disclosed or undisclosed, of LESSOR shall be under any
personal liability with respect to any of the provisions of this Lease, and if
LESSOR is in breach or default with respect to LESSOR'S obligations or otherwise
under this Lease, LESSEE shall look solely to the equity of LESSOR in the
Premises for the satisfaction of LESSEE'S remedies. It is expressly understood
and agreed that LESSOR'S liability under the terms, covenants, conditions,
warranties and obligations of this Lease shall in no event exceed the loss of
LESSOR'S equity interest in the Premises.
SECTION 19.02. WAIVER. Failure of LESSOR to insist upon the strict
------
performance by LESSEE of any term, condition or covenant on LESSEE'S part to be
performed pursuant to the terms of this Lease or to exercise any option, right,
power, or remedy of LESSOR contained in this Lease shall not be deemed to be nor
be construed as
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a waiver of such performance or relinquishment of such right now or subsequent
hereto. The receipt by LESSOR of any Rent or Additional Rental required to be
paid by LESSEE hereunder with knowledge of any default by LESSEE hereunder shall
not be deemed a waiver of such default. No waiver by LESSOR of any provision of
this Lease shall be deemed to have been made unless expressed in writing and
signed by LESSOR.
SECTION 19.03. WAIVER OF REDEMPTION. LESSEE hereby waives and
--------------------
surrenders any right or privilege under any present or future constitution,
statute or law to redeem the Premises or to continue this Lease after the
termination of this Lease for any reason, and the benefits of any present or
future constitution, statute or rule of law which exempts property from
liability for debt or for distress for rent.
SECTION 19.04. ESTOPPEL CERTIFICATES. Upon written request of LESSOR,
---------------------
but no more frequently than once in any twelve (12) month period, LESSEE shall
from time to time execute, acknowledge and deliver to LESSOR and to any
mortgagee of or prospective purchaser from LESSOR, a written certificate
certifying (a) that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the Lease is in full force and effect as
modified, and stating the modifications), (b) the dates to which Rent and
Additional Rental payable by LESSEE hereunder have been paid, and (c) that no
notice has been received by LESSEE of any default by LESSEE hereunder which has
not been cured, except as to any default specified in said certificate.
Upon written request of LESSEE, but no more frequently than once in any
twelve (12) month period, LESSOR shall from time to time execute, acknowledge
and deliver to LESSEE and any Leasehold Mortgage a written certificate
certifying (d) that this Lease is unmodified and in full force and effect (or if
there have been modifications, that this Lease is in full force and effect as
modified, and stating the modifications), (e) the dates to which Rent and
Additional Rental payable by LESSEE hereunder have been paid,
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and (f) whether or not, to the knowledge of LESSOR, there is then existing a
default by LESSEE under this Lease (and if so, specifying the same).
SECTION 19.05. NO MERGER OF TITLE. There shall be no merger of the
------------------
leasehold estate created by this Lease with the fee estate of LESSOR by reason
of the fact that the same person may own or hold both the leasehold estate
created by this Lease or any interest therein and the fee estate in the Premises
or any interest therein; and no such merger shall occur unless and until all
persons or entities (including any mortgagee with respect to the fee estate of
LESSOR) and LESSEE'S Leasehold Mortgagee having any interest in the leasehold
estate created by this Lease or the fee estate in the Premises shall join in a
written instrument effecting such merger and shall duly record the same.
SECTION 19.06. SEPARABILITY. Each and every covenant and agreement
------------
contained in this Lease shall be for any and all purposes hereof construed as
separate and independent and the breach of any covenant by LESSOR shall not
discharge or relieve LESSEE from its obligation to perform each and every
covenant and agreement to be performed by LESSEE under this Lease. All rights,
powers and remedies provided herein may be exercised only to the extent that the
exercise thereof does not violate applicable law and shall be limited to the
extent necessary to render this Lease valid and enforceable. If any term,
provision or covenant of this Lease or the application thereof to any person or
circumstance shall be held to be invalid, illegal or unenforceable, by a court
of last resort having jurisdiction in the premises, the validity of the
remainder of this Lease shall not be affected; this Lease shall not terminate,
and there shall be substituted for such illegal, invalid or unenforceable
provision a like provision which is legal, valid and enforceable within the
limits established by such court's final opinion and which most nearly
accomplishes and reflects the original intention of the parties.
SECTION 19.07. NOTICES, DEMANDS AND OTHER INSTRUMENTS. All notices,
--------------------------------------
demands, requests, consents, and approvals desired, necessary, required or
permitted to be
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given pursuant to the terms of this Lease shall be in writing and shall be
deemed to have been properly given if personally delivered or sent, postage
prepaid, by first class registered or certified United States mail, return
receipt requested, addressed to each party hereto at the following address:
LESSOR: ▇▇▇▇▇▇ Center Property, L.L.C.
c/o Brogdon Consulting, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
LESSEE: Equifax Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
With a copy to: Equifax Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Director of Corporate Real Estate
or at such other address in the United States as LESSOR or LESSEE may from time
to time designate by like notice. Any such notice, demand, request or other
communication shall be considered given or delivered, as the case may be, on the
date delivery. Rejection or other refusal to accept or inability to deliver
because of changed address of which no notice was given shall be deemed to be
receipt of the notice, demand, request or other communication.
SECTION 19.08. SUCCESSORS AND ASSIGNS. Each and every covenant, term,
----------------------
condition and obligation contained in this Lease shall apply to and be binding
upon and inure to the benefit or detriment of the respective legal
representatives, heirs, successors and assigns of LESSOR and LESSEE. Whenever
reference to the parties hereto is made in this Lease, such reference shall be
deemed to include the legal representatives, successors, heirs and assigns of
said party the same as if in each case expressed. The term
-62-
"person" when used in this Lease shall mean any individual, corporation,
partnership, firm, trust, joint venture, business association, syndicate,
government or governmental organization or any other entity.
SECTION 19.09. HEADINGS. The headings to the various Articles and
--------
Sections of this Lease have been inserted for purposes of reference only and
shall not limit or define or otherwise affect the express terms and provisions
of this Lease.
SECTION 19.10. COUNTERPARTS. This Lease may be executed in any number
------------
of counterparts, each of which is an original, but all of which shall constitute
one instrument.
SECTION 19.11. APPLICABLE LAW. This Lease shall be construed under
--------------
and enforced in accordance with the laws of the State of Georgia.
SECTION 19.12. ENTIRE AGREEMENT; AMENDMENTS. This Lease sets forth
----------------------------
the entire understanding and agreement of LESSOR and LESSEE with respect to the
Premises; all courses of dealing, usage of trade and all prior representations,
promises, understandings and agreements, whether oral or written, are superseded
by and merged into this Lease. No modification or amendment of this Lease shall
be binding upon LESSOR and LESSEE, or either of them, unless in writing and
fully executed and consented to by LESSEE'S Leasehold Mortgagee.
SECTION 19.13. ALL GENDERS AND NUMBERS INCLUDED. Whenever the
--------------------------------
singular or plural number, or masculine, feminine, or neuter gender is used in
this Lease, it shall equally apply to, extend to, and include the other.
SECTION 19.14. TIME IS OF ESSENCE. Time is of the essence of this
------------------
Lease. Whenever a day certain is provided for the payment of any sum of money
or the performance of any act or thing, the same enters into and becomes a part
of the consideration for this Lease.
-63-
SECTION 19.15. ENCUMBRANCE BY LESSOR. In the event that LESSOR places
---------------------
any deed to secure debt, mortgage or other encumbrance on the Premises, such
deed to secure debt, mortgage or other encumbrance shall be expressly made
subject to and subordinate to the provisions of this Lease (including, without
limitation, the right of any Leasehold Mortgagee to enter a New Lease).
SECTION 19.16. SHORT FORM LEASE. LESSOR and LESSEE hereby agree that
----------------
this Lease shall not be recorded in the public records of ▇▇▇▇▇▇ County,
Georgia. LESSOR and LESSEE shall, contemporaneously with the execution hereof,
execute a Short Form Lease in the form attached hereto as Exhibit "C". The
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Short Form Lease shall be filed for record with the Clerk of the Superior Court
of ▇▇▇▇▇▇ County, Georgia. Any and all recording cost and tax, if any, required
in connection with the recording of the Short Form Lease shall be at the sole
cost and expense of LESSEE.
IN WITNESS WHEREOF, LESSOR and LESSEE have executed this Lease, have
affixed their seals hereunto and have delivered same, all in duplicate (or
triplicate) original, at Atlanta, Georgia as of the day and year first above
written.
"LESSOR"
▇▇▇▇▇▇ CENTER PROPERTY, L.L.C.
By: Gwinnett ▇▇▇▇▇, ▇.▇.,
Member
By: ▇▇▇▇▇ Manager, Inc., its
sole general partner
By: /s/ D. ▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Member
[Signatures continued on following page]
-64-
"LESSEE"
EQUIFAX INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Title: Vice President
---------------------------
[CORPORATE SEAL]
-65-
EXHIBITS
--------
Exhibit "A" Legal Description
Exhibit "B" Permitted Encumbrances
Exhibit "C" Short Form Lease
Exhibit "D" List of Prohibited Assignees
Exhibit "E" Subordination, Non-Disturbance and Attornment Agreement
EXHIBIT A
All that tract or parcel of land lying and being in Land Lots 108 and 109 of the
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, containing 1.913
acres (83,318 square feet), more or less, and being more particularly described
as follows:
BEGINNING at a point at the intersection of the Land Lot Line common to Land
Lots 108 and 109 and the westerly margin of the right-of-way of Peachtree Street
(right-of-way width varies) being the TRUE POINT OF BEGINNING; thence departing
the right-of-way of Peachtree Street, North 89 degrees 42' 15" West, 240.82 feet
along said Land Lot Line to a stone monument; thence South 00 degrees 32' 28"
West, 135.10 feet to a piont on the northerly margin of the right-of-way of
South ▇▇▇▇▇▇ Center, (right-of-way width varies); thence along the northerly
margin of said right-of-way, North 87 degrees 17' 06" inches West, 73.77 feet to
a point on the easterly margin of the right-of-way of Spring Street, (right-of-
way width varies); thence along the easterly margin of the right-of-way-of
Spring Street, North 01 degrees 51' 44" East, 407.25 feet to a point; thence
continuing along the margin of said right-of-way, 79.55 feet along the arc of a
curve to the right having a radius of 40.47 feet, chord bearing of North 58
degrees 30' 46" East and chord distance of 67.35 feet to a point on the westerly
margin of the right-of-way of Peachtree Street (right-of-way width varies);
thence along the westerly margin of the right-of-way of Peachtree Street the
following courses and distances; South 65 degrees 36' 50" East, 77.09 feet to a
point; thence 269.13 feet along the arc of a curve to the right having a radius
of 284.54 feet, chord bearing of South 37 degrees 46' 50" East and chord
distance of 259.21 feet to a point; South 09 degrees 47' 04" East, 76.25 feet to
the TRUE POINT OF BEGINNING, said property being more particularly shown as
Tract 1 on a plat of survey for D. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., prepared by Development
Consultants Group, dated November 14, 1997, last revised January 6, 1998.
(Tract 1)
EXHIBIT "B"
-----------
PERMITTED ENCUMBRANCES
1. Taxes and assessments for the year 1998 and subsequent years, not yet due
and payable.
2. Unrecorded Indemnity Agreement by D. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇., to The Georgia
Department of Transportation.
3. Right of Way Easement from The Citizens and Southern National Bank to
Georgia Power Company, dated March 22, 1972, recorded in Deed Book 5565,
page 467, ▇▇▇▇▇▇ County, Georgia records.
NOTE: By letter dated December 9, 1997, Georgia Power Company claims no
further interest in the above-mentioned easement, except the right to
operate, maintain, rebuild and renew its existing facilities and equipment
within its presently maintained right-of-way.
4. Declaration of Easement dated June 9, 1981, between the Citizens and
Southern National Bank, as Trustee under Agreement with ▇▇▇▇▇ ▇. ▇▇▇▇▇, et
al. and Metropolitan Atlanta Rapid Transit Authority, filed for record June
10, 1981, recorded in Deed Book 7869, page 70, aforesaid records.
5. Judgement and Decree No. C-83916 in case styled City of Atlanta, Condemnor,
vs. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.; ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, Tax Commissioner, ▇▇▇▇▇▇
County; ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Municipal Revenue Collector, City of Atlanta,
Condemnees, dated June 10, 1982, recorded in Deed Book 8153, page 110,
aforesaid records.
6. Sidewalk Easement Agreement from Intersection Park, Inc. to the City of
Atlanta, dated August 25, 1992, recorded in Deed Book 15660, page 12,
aforesaid records.
7. Easement Agreement from Intersection Park, Inc. to Atlanta Committee For
the Olympic Games, Inc., dated May 15, 1992, recorded in Deed Book 20734,
page 276, aforesaid records; as amended by Amendment No. 1 to Easement
Agreement dated December 15, 1993, recorded in Deed Book 20734, page 294,
aforesaid records, as affected by Agreement by and between Atlanta
Committee for The Olympic Games and the Hudgens Family Foundation, Inc.,
recorded in Deed Book 23473, Page 102, aforesaid records.
8. Conveyance of access rights contained in Right of Way Deed from D. ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇. to the Department of Transportation, dated September 27, 1993,
recorded in Deed Book 17853, page 210, aforesaid records.
9. Conveyance of Access Rights from D. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇. to the Department of
Transportation, dated July 7, 1992, recorded in Deed Book 15432, page 321,
aforesaid records.
10. Conveyance of access rights contained in Right of Way Deed from D. ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇. to the Department of Transportation, dated September 27, 1993,
recorded in Deed Book 17365, page 10, aforesaid records.
11. Those matters as disclosed by that certain survey entitled "ALTA/ACSM Land
Title Survey for D. ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇." prepared by Development Consultants
Group, bearing the seal and
certification of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Georgia Registered Land Surveyor No. 2637,
dated November 14, 1997, last revised January 6, 1998, as follows:
(a) Concrete paving, curbing and streetscape extends onto Peachtree Street,
South ▇▇▇▇▇▇ Center, N.W., and Spring Street an undetermined distance;
(b) Light poles, fire hydrants, water meters and valves and utility meters
located on subject premises, indicating the presence of underground
utilities in undisclosed locations;
(c) Sidewalk Easements located in the western and eastern portions of subject
property;
(d) MARTA Permanent Subsurface Easements in eastern portion of subject
property;
(e) Drainage lines, with catch basins and related drainage facilities, crossing
subject property and subject property boundary and appearing to direct the
flow of drainage across property boundaries;
(f) Conveyance of access rights along the rights-of-way of Spring Street and
Peachtree Street; and
(g) Forty foot front and twenty foot side setback lines.
EXHIBIT "C"
-----------
SHORT FORM LEASE
SHORT FORM LEASE
----------------
THIS SHORT FORM LEASE (this "Lease"), made and entered into this _____ day
of March, 1998, by and between ▇▇▇▇▇▇ CENTER PROPERTY, L.L.C. ("LESSOR"), and
EQUIFAX INC. ("LESSEE"), a Georgia corporation.
ARTICLE I
DEMISE OF PREMISES
------------------
Section 1.01. Demise. LESSOR does hereby demise and lease to LESSEE, and
------
LESSEE does hereby take and hire, upon and subject to the terms and conditions
herein contained, that certain tract of land lying and being in Land ▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ of Atlanta, ▇▇▇▇▇▇ County, Georgia and being
more particularly described in "Exhibit "A" hereof together with all buildings,
-----------
structures, and other improvements now or hereafter located thereon and all
appurtenances thereunto belonging (said land, improvements and appurtenances are
herein collectively referred to as the "Premises"), all subject to the
encumbrances set forth in Exhibit "B" hereof.
-----------
Section 1.02. Term of Lease. The term of this Lease (the "Term") shall
-------------
commence on the date hereof and, unless sooner terminated as provided in the
"Base Lease" (as hereinafter defined) shall continue until December 31, 2048.
Section 1.03. Option to Extend. LESSEE has the option to extend this Lease
----------------
for three (3) additional ten (10) year terms.
Section 1.04. BASE LEASE. This Lease is a short form lease executed,
----------
delivered and recorded to provide notice of LESSEE's leasehold estate in the
Premises as created pursuant to that certain Ground Lease between LESSOR and
LESSEE of even date herewith (the "Base Lease"), the terms and provisions of
which govern and control the obligations of LESSOR and LESSEE with respect to
the Premises and LESSEE's leasehold estate therein, which grants to LESSEE
certain options to purchase the Premises, and which limits LESSOR's rights to
assign the Lease to certain types of entities. The Base Lease further grants to
LESSOR and LESSEE certain first refusal rights in connection with transfers by
the other party. The Base Lease further grants to each "Leasehold Mortgagee" (as
defined in the Base Lease) the right to enter into a "New Lease" (as defined in
the Base Lease) with LESSOR upon the occurrence of certain events.
IN WITNESS WHEREOF, LESSOR and LESSEE have executed this Lease, have
affixed their seals hereunto and have delivered same, all in duplicate (or
triplicate) original, at Atlanta, Georgia as of the day and year first above
written.
LESSOR:
------
▇▇▇▇▇▇ CENTER PROPERTY, L.L.C., a Georgia
limited liability company, by all of its
members
Signed, sealed and delivered in the
presence of: By: Gwinnett ▇▇▇▇▇, ▇.▇., a Member and
Manager
_______________________________ By: ▇▇▇▇▇ Manager, Inc., its sole
Witness general partner
_______________________________ By: ___________________________
Notary Public President
My commission expires: [CORPORATE SEAL]
_______________________________ By: _______________________________[SEAL]
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, a Member and
Manager
-2-
LESSEE:
------
EQUIFAX INC.
Signed, sealed and delivered in the
presence of:
By:_______________________________
__________________________________ Name:__________________________
Witness Title:_________________________
__________________________________
Notary Public [CORPORATE SEAL]
My commission expires:
__________________________________
-3-
EXHIBIT "D"
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PROHIBITED ASSIGNEES
--------------------
All of the following and their respective directly owned subsidiaries:
TRW Information Services, Inc. (and TRW, Inc., its parent)
TransUnion (TU)
Computer Sciences Corporation (CSC)
Dun & Bradstreet (D&B)
First Financial Management Corp. (FFMC), (includes Telecheck NABANCO)
EDS (and General Motors Corp., its parent)
Total Systems Services, Inc.
First Data Resources (FDR)
Policy Management Systems Corp. (PMSC)
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
National Processing Co. (NPC)
Deluxe Check Printers (including SCAN)
Fair, ▇▇▇▇▇ & Co.
National Data Corp.
CYCARE, Inc.
ENVOY
DATEQ
Continuum
Creditel
EMSI
PAYCO American Corp.
Olsten's Temporary
CCN (and Great Universal Stores, its parent)
▇▇▇▇▇▇▇, PLC
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