EXHIBIT 10.1
LEASE AGREEMENT
by and between
WILDWOOD ASSOCIATES
("Landlord")
and
MANHATTAN ASSOCIATES, LLC
("Tenant")
dated
September 24, 1997
for
Suite Number 700
containing
51,148 square feet of Rentable Floor Area
Term: 62 months
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TABLE OF CONTENTS
Page
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1. Certain Definitions......................................................1
2. Lease of Premises........................................................3
3. Term.....................................................................3
4. Possession...............................................................3
5. Rental Payments..........................................................4
6. Base Rental..............................................................5
7. Rent Escalation..........................................................5
8. Additional Rental........................................................5
9. Operating Expenses.......................................................7
10. Tenant Taxes; Rent Taxes...............................................11
11. Payments...............................................................12
12. Late Charges...........................................................12
13. Use Rules..............................................................12
14. Alterations............................................................13
15. Repairs................................................................13
16. Landlord's Right of Entry..............................................14
17. Insurance..............................................................14
18. Waiver of Subrogation..................................................16
19. Default................................................................16
20. Waiver of Breach.......................................................19
21. Assignment and Subletting..............................................19
22. Destruction............................................................20
23. Landlord's Lien........................................................21
24. Services by Landlord...................................................21
25. Attorneys' Fees and Homestead..........................................21
26. Time...................................................................22
27. Subordination and Attornment...........................................22
28. Estoppel Certificates..................................................23
29. No Estate..............................................................23
30. Cumulative Rights......................................................24
31. Holding Over...........................................................24
32. Surrender of Premises..................................................24
33. Notices................................................................24
34. Damage or Theft of Personal Property...................................25
35. Eminent Domain.........................................................25
36. Parties................................................................26
37. Liability..............................................................26
38. Relocation of the Premises.............................................27
39. Force Majeure..........................................................27
40. Landlord's Liability...................................................27
41. Landlord's Covenant of Quiet Enjoyment.................................27
42. Security Deposit.......................................................27
43. Hazardous Substances...................................................28
44. Submission of Lease....................................................29
45. Severability...........................................................29
46. Entire Agreement.......................................................29
47. Headings...............................................................30
48. Broker.................................................................30
49. Governing Law..........................................................30
50. Special Stipulations...................................................30
51. Authority..............................................................30
52. Financial Statements...................................................31
53. Joint and Several Liability............................................31
54. ERISA Compliance.......................................................31
Rules and Regulations
Exhibit "A" - Legal Description of Land
Exhibit "B" - Floor Plan
Exhibit "C" - Supplemental Notice
Exhibit "D" - Landlord's Construction
Exhibit "D-1" - List of Items within Demised Premises
Exhibit "E" - Building Standard Services
Exhibit "F" - Guaranty - Intentionally Deleted
Exhibit "G" - Special Stipulations
Exhibit "H" - Operating Expenses
Exhibit "I" - Cleaning Specifications
LEASE AGREEMENT
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THIS LEASE AGREEMENT ("Lease"), is made and entered into this 24th day of
September, 1997, by and between Landlord and Tenant.
W I T N E S S E T H:
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1. Certain Definitions. For purposes of this Lease, the following terms
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shall have the meanings hereinafter ascribed thereto:
(a) Landlord: WILDWOOD ASSOCIATES, a Georgia general partnership
(b) Landlord's Address:
Wildwood Associates
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Attn: Corporate Secretary
(c) Tenant: Manhattan Associates, LLC
(d) Tenant's Address:
Suite 700
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(e) Building Address:
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(f) Suite Number: 700
(g) (A) Rentable Floor Area of Demised Premises: 51,148
square feet. The Rentable Floor Area for that portion of the Demised
Premises located on a floor on which Tenant leases some, but not all, of
the floor, shall be calculated by determining the usable square feet within
such Demised Premises, and multiplying said amount by 1.17. The Rentable
Floor Area for any portion of the Demised Premises located on a floor which
Tenant leases in its entirety shall be calculated by measuring the usable
square feet on such floor, and multiplying said amount by 1.1026.
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(B) Tenant shall have the right to review the Rentable Floor Area
within thirty (30) days after the date of this Lease, to confirm that such
measurement accurately reflects the exact number of Rentable Floor Area of the
Demised Premises (using only the factors set forth above, and measuring usable
square feet as cross-hatched on Exhibit "B"). If Tenant disagrees with the
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figure for the square feet of Rentable Floor Area set forth herein, Tenant shall
have the right, at Tenant's expense, to cause a measurement of the Demised
Premises to determine the square feet of Rentable Floor Area. Tenant shall
provide notice to Landlord of Tenant's calculations following Tenant's
completion thereof, and in any event within the thirty (30) day period set forth
above. If the parties do not agree on the final measurement for such space, then
such matter shall be submitted to and resolved by arbitration as provided
herein.
(C) Either party shall have the right to initiate such arbitration by
giving written notice thereof to the other party. Upon the initiation of such
arbitration, Landlord and Tenant shall promptly select a reputable,
disinterested architect having at least ten (10) years experience designing
office buildings and/or leasehold improvements for office buildings in the
Atlanta metropolitan area. If Landlord and Tenant fail to agree upon the
selection of such architect within twenty (20) days after the initiation of the
arbitration, either Landlord or Tenant, upon notice to the other, may request
the appointment of the aforesaid architect by the Chief Judge of the ▇▇▇▇
Superior Court. The arbitration shall be conducted, to the extent consistent
with this paragraph in accordance with the then prevailing commercial rules of
the American Arbitration Association (or any successor organization). After
reconciling any variances the third architect or engineer shall determine the
exact number of square feet of Rentable Floor Area of the Demised Premises, on
the basis as described herein. The arbitrator shall render his or her decision
in writing, and such decision shall be final, conclusive and binding on the
parties, and counterpart copies thereof shall be delivered to each of the
parties; provided, however, that if the number of square feet of Rentable Floor
Area determined by the third architect or engineer is more than the greater of
the prior two calculations, than the greater of the prior two calculations shall
be deemed to be the number of Rentable Floor Area; and if the number of square
feet of Rentable Floor Area determined by the third architect or engineer is
less than the lesser of the prior two calculations, then the lesser of the prior
two calculations shall be deemed to be the number of square feet of Rentable
Floor Area. Landlord and Tenant shall pay the fees and charges of their
respective architects and engineers, and each shall pay one-half of the fees and
charges of the third architect or engineer. In rendering such decision, the
arbitrator shall not add to, subtract from or otherwise modify the provisions of
this Lease.
(h) Rentable Floor Area of Building: 614,543 square feet.
(i) Lease Term: Sixty-two (62) months.
(j) Base Rental Rate: $14.70 per square foot of Rentable Floor Area of
Demised Premises per year, subject to adjustments as set forth in Article 7
below.
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(k) Rental Commencement Date: The earlier of (x) November 1, 1997, or
(y) the date upon which Tenant takes possession and occupies the Demised
Premises for the purpose of conducting business therein; provided that if the
Demised Premises are not ready for occupancy on the date set forth in (x) above
due to delays not caused by Tenant or its employees, agents or contractors, then
the date set forth in (x) above shall be postponed to the date on which the
Demised Premises are ready for occupancy.
(l) Rent Deposit: $90,361.47 (Article 5[c])
(m) Construction Allowance: $7.50 per square foot of Rentable Floor Area
(n) Security Deposit: $90,361.47 (Article 42[a])
(o) Broker(s): Cousins Properties Incorporated ("CPI") and
CB Commercial Real Estate Group.
2. Lease of Premises. Landlord, in consideration of the covenants and
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agreements to be performed by Tenant, and upon the terms and conditions
hereinafter stated, does hereby rent and lease unto Tenant, and Tenant does
hereby rent and lease from Landlord, certain premises (the "Demised Premises")
in the building (hereinafter referred to as "Building") located on that certain
tract of land (the "Land") more particularly described on Exhibit "A" attached
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hereto and by this reference made a part hereof, which Demised Premises are
outlined in red or crosshatched on the floor plan attached hereto as Exhibit "B"
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and by this reference made a part hereof, with no easement for light, view or
air included in the Demised Premises or being granted hereunder. The "Project"
is comprised of the Building, the Land, the Building's parking facilities, any
walkways, covered walkways, tunnels or other means of access to the Building and
the Building's parking facilities, all common areas, including any lobbies or
plazas, and any other improvements or landscaping on the Land. The Project is
located in the development known as "Wildwood Office Park".
3. Term. The term of this Lease ("Lease Term") shall commence on the date
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first hereinabove set forth, and, unless sooner terminated as provided in this
Lease, shall end on the expiration of the period designated in Article 1(i)
above, which period shall commence on the Rental Commencement Date, unless the
Rental Commencement Date shall be other than the first day of a calendar month,
in which event such period shall commence on the first day of the calendar month
following the month in which the Rental Commencement Date occurs. Promptly
after the Rental Commencement Date Landlord shall send to Tenant a Supplemental
Notice in the form of Exhibit "C" attached hereto and by this reference made a
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part hereof, specifying the Rental Commencement Date, the date of expiration of
the Lease Term in accordance with Article 1(i) above and certain other matters
as therein set forth.
4. Possession. The obligations of Landlord and Tenant with respect to the
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initial leasehold improvements to the Demised Premises are set forth in Exhibit
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"D" attached hereto and by this reference made a part hereof. Taking of
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possession by Tenant shall be deemed conclusively to establish that Landlord's
construction obligations with respect to the Demised Premises have been
completed in accordance with the plans and specifications approved by Landlord
and Tenant
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and that the Demised Premises, to the extent of Landlord's construction
obligations with respect thereto, are in good and satisfactory condition,
subject to completion of any incomplete or corrective items specified in a
"punch list" approved by Landlord and Tenant.
5. Rental Payments.
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(a) Commencing on the Rental Commencement Date, and continuing thereafter
throughout the Lease Term, Tenant hereby agrees to pay all Rent due and
payable under this Lease. As used in this Lease, the term "Rent" shall mean
the Base Rental, Tenant's Forecast Additional Rental, Tenant's Additional
Rental, and any other amounts that Tenant assumes or agrees to pay under the
provisions of this Lease that are owed to Landlord, including without
limitation any and all other sums that may become due by reason of any default
of Tenant or failure on Tenant's part to comply with the agreements, terms,
covenants and conditions of this Lease to be performed by Tenant. Base Rental
together with Tenant's Forecast Additional Rental shall be due and payable in
twelve (12) equal installments on the first day of each calendar month,
commencing on the Rental Commencement Date and continuing thereafter
throughout the Lease Term and any extensions or renewals thereof, and Tenant
hereby agrees to pay such Rent to Landlord at Landlord's address as provided
herein (or such other address as may be designated by Landlord from time to
time) monthly in advance. Tenant shall pay all Rent and other sums of money as
shall become due from and payable by Tenant to Landlord under this Lease at
the times and in the manner provided in this Lease, without demand, set-off or
counterclaim.
(b) If the Rental Commencement Date is other than the first day of a
calendar month or if this Lease terminates on other than the last day of a
calendar month, then the installments of Base Rental and Tenant's Forecast
Additional Rental for such month or months shall be prorated on a daily basis
and the installment or installments so prorated shall be paid in advance.
Also, if the Rental Commencement Date occurs on other than the first day of a
calendar year, or if this Lease expires or is terminated on other than the
last day of a calendar year, Tenant's Additional Rental shall be prorated for
such commencement or termination year, as the case may be, by multiplying such
Tenant's Additional Rental by a fraction, the numerator of which shall be the
number of days during the commencement or expiration or termination year, as
the case may be, and the denominator of which shall be 365, and the
calculation described in Article 8 hereof shall be made as soon as possible
after the expiration or termination of this Lease, Landlord and Tenant hereby
agreeing that the provisions relating to said calculation shall survive the
expiration or termination of this Lease.
(c) As security for Tenant's obligations to take possession of the
Demised Premises in accordance with the terms of this Lease and to comply with
all of Tenant's covenants, warranties and agreements hereunder, Tenant has
deposited with Landlord the sum set forth in Article 1(l) above. Such amount
shall be applied by Landlord to the first monthly installment(s) of Base
Rental as they become due hereunder. In the event Tenant fails to take
possession of the Demised Premises as aforesaid or otherwise fails to copy
with
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any of Tenant's covenants, warranties or agreements hereunder, said sum shall
be retained by Landlord for application in reduction, but not in satisfaction,
of damages suffered by Landlord as a result of such breach by Tenant. Landlord
shall not be required to keep such deposit separate from its general accounts.
6. Base Rental. Subject to adjustments in accordance with Article 7 below,
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from and after the Rental Commencement Date Tenant shall pay to Landlord a base
annual rental (herein called "Base Rental") equal to the Base Rental Rate set
forth in Article 1(j) above multiplied by the Rentable Floor Area of Demised
Premises set forth in Article 1(g) above.
7. Rent Escalation. Intentionally Deleted
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8. Additional Rental.
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(a) For purposes of this Lease, "Tenant's Forecast Additional Rental"
shall mean Landlord's reasonable estimate of Tenant's Additional Rental for
the coming calendar year or portion thereof. If at any time it appears to
Landlord that Tenant's Additional Rental for the current calendar year will
vary from Landlord's estimate by more than five percent (5%), Landlord shall
have the right to revise, by notice to Tenant, its estimate for such year, and
subsequent payments by Tenant for such year shall be based upon such revised
estimate of Tenant's Additional Rental. Failure to make a revision
contemplated by the immediately preceding sentence shall not prejudice
Landlord's right to collect the full amount of Tenant's Additional Rental.
Prior to the Rental Commencement Date and thereafter prior to the beginning of
each calendar year during the Lease Term, including any extensions thereof,
Landlord shall present to Tenant a statement of Tenant's Forecast Additional
Rental for such calendar year; provided, however, that if such statement is
not given prior to the beginning of any calendar year as aforesaid, Tenant
shall continue to pay during the next ensuing calendar year on the basis of
the amount of Tenant's Forecast Additional Rental payable during the calendar
year just ended until the month after such statement is delivered to Tenant.
(b) For purposes of this Lease, "Tenant's Additional Rental" shall mean
for each calendar year (or portion thereof) the Operating Expense Amount
(defined below) multiplied by the number of square feet of Rentable Floor Area
of Demised Premises. As used herein, "Operating Expense Amount" shall mean an
amount equal to (x) plus (y), where:
(x) equals the amount of Operating Expenses (as defined below) for such
calendar year divided by the greater of (i) 95% of the number of square
feet of Rentable Floor Area of the Building, or (ii) the total number of
square feet of Rentable Floor Area occupied in the Building for such
calendar year on an average annualized basis; provided, however, if the
Operating Expenses actually incurred by Landlord are lower than would be
incurred if at least 95% of the Building were occupied or if Landlord
shall not furnish any particular item(s) of work or services (the cost of
which would otherwise be included within Operating Expenses) to portions
of the
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Building because (A) such portions are not occupied, (B) such item of work
or services is not required or desired by the tenant of such portion, (C)
such tenant is itself obtaining such item of work or services, or (D) of
any other reason, then appropriate adjustments shall be made to determine
Operating Expenses for such calendar year as though the Building were
actually occupied to the extent of the greater of (i) or (ii) above and as
though Landlord had furnished such item of work or services to the greater
of (i) or (ii) above; and
(y) equals a management fee contribution equal to three percent (3%) of
Tenant's Base Rental (on a per square foot basis) plus three percent (3%)
of the per square foot amount described in (x).
(c) Within one hundred fifty (150) days after the end of calendar year
1998, and each calendar year thereafter during the Lease Term, or as soon
thereafter as practicable, Landlord shall provide Tenant a statement showing
the Operating Expenses for said calendar year, as prepared by a certified
public accounting firm in accordance with generally accepted accounting
principles, consistently applied ("GAAP"), (as such firm is designated by
Landlord), and a statement prepared by Landlord comparing Tenant's Forecast
Additional Rental with Tenant's Additional Rental. In the event Tenant's
Forecast Additional Rental exceeds Tenant's Additional Rental for said
calendar year, Landlord shall credit such amount against Rent next due
hereunder or, if the Lease Term has expired or is about to expire, refund such
excess to Tenant within thirty (30) days if Tenant is not in default under
this Lease (in the instance of a default such excess shall be held as
additional security for Tenant's performance, may be applied by Landlord to
cure any such default, and shall not be refunded until any such default is
cured). In the event that the Tenant's Additional Rental exceeds Tenant's
Forecast Additional Rental for said calendar year, Tenant shall pay Landlord,
within thirty (30) days of receipt of the statement, an amount equal to such
difference. The provisions of this Lease concerning the payment of Tenant's
Additional Rental shall survive the expiration or earlier termination of this
Lease.
(d) For so long as Tenant is not in default under this Lease, Landlord's
books and records pertaining to the calculation of Operating Expenses for any
calendar year within the Lease Term may be audited by an authorized
representative of Tenant at Tenant's expense, at any time within eighteen (18)
months after Tenant's receipt of the reconciliation statement; provided that
Tenant shall give Landlord not less than thirty (30) days' prior written
notice of any such audit. For purposes hereof, an authorized representative of
Tenant shall mean a bona fide employee of Tenant, any reputable accounting
firm, or any other party reasonably approved in writing by Landlord. In no
event shall an authorized representative of Tenant include the owner of any
office building in the metropolitan Atlanta, Georgia area or any affiliate of
such owner. Prior to the commencement of such audit, Tenant shall cause its
authorized representative to agree in writing for the benefit of Landlord that
such representative will keep the results of the audit confidential and that
such representative will not disclose or divulge the results of such audit
except to Tenant and Landlord and except in connection with any dispute
between Landlord and Tenant relating to Operating Expenses. Such audit shall
be conducted during reasonable business hours at
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Landlord's office where Landlord's books and records are maintained. Tenant
shall cause a written audit report to be prepared by its authorized
representative following any such audit and shall provide Landlord will a copy
of such report promptly after receipt thereof by Tenant. If Landlord's
calculation of Tenant's Additional Rental for the audited calendar year was
incorrect, then Tenant shall be entitled to a prompt refund of any overpayment,
and Landlord shall also pay the reasonable costs of Tenant's audit, if the
overpayment is ultimately determined to be greater than ten percent (10%) of the
sum due, or Tenant shall promptly pay to Landlord the amount of any
underpayment, as the case may be. If Tenant, in good faith and with reasonable
specificity and detail, protests any portion of Additional Rental due from
Tenant which is ultimately determined to be not due from Tenant, then Landlord
shall owe to Tenant the amount of such overcollection, plus interest on such
overcollected amount at the rate of twelve percent (12%) per annum, such
interest to accrue from July 1 of the year in which such protest is made by
Tenant. The provisions of this Lease concerning the payment or refund of
Tenant's Additional Rental shall survive the expiration or earlier termination
of this Lease.
(e) Attached hereto as Exhibit "H" and by this reference incorporated
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herein is a record of Operating Expenses for the Building for calendar years
1995, 1996, and the projected Operating Expenses for the Building for calendar
year 1997. Notwithstanding the terms of this Lease, Landlord and Tenant hereby
agree that the Operating Expenses for the Demised Premises for calendar year
1997 shall not be adjusted, and shall be fixed at Six and 50/100 Dollars ($6.50)
per square foot of Rentable Floor Area in the Demised Premises, per annum.
9. Operating Expenses.
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(a) For the purposes of this Lease, "Operating Expenses" shall mean all
reasonable and customary expenses, costs and disbursements (but not specific
costs billed to specific tenants of the Building) of every kind and nature,
computed on the accrual basis, relating to or incurred or paid in connection
with the ownership, management, operation, repair and maintenance of the
Project, including but not limited to, the following:
(1) wages, salaries and other costs of all on-site and off-site
employees engaged either full or part-time in the day-to-day operation,
management, maintenance or access control of the Project, including taxes,
insurance and benefits customarily provided by Landlord relating to such
employees, allocated based upon the time such employees are engaged directly in
providing such services;
(2) the cost of all supplies, tools, equipment and materials used in
the operation, management, maintenance and access control of the Project;
(3) the cost of all utilities for the Project, including but not
limited to the cost of electricity, gas, water, sewer services and power for
heating, lighting, air conditioning and ventilating;
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(4) the cost of all maintenance and service agreements for the
Project and the equipment therein, including but not limited to security
service, garage operators, window cleaning, elevator maintenance, HVAC
maintenance, janitorial service, waste recycling service, landscaping
maintenance and customary landscaping replacement;
(5) the cost of repairs and general maintenance of the Project;
(6) amortization (together with reasonable financing charges,
whether or not actually incurred) of the cost of acquisition and/or installation
of capital investment items (including security and energy management
equipment), amortized over their respective useful lives, which are installed
for the purpose of reducing operating expenses, promoting safety, complying with
governmental requirements, or maintaining the first-class nature of the Project,
but only to the extent such expenditures do accomplish such goal; provided,
however, that Landlord shall not be entitled to pass on any of Landlord's costs
which arise out of correcting a matter or item in the Building which is a
violation of a governmental requirement as of the date of this Lease (other than
expenditures to accomplish reasonable accommodations under the Americans With
Disabilities Act (the "ADA", 42 U.S.C. (S) 12.101 et seq.) and those ADA
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expenditures shall be amortized in accordance with GAAP and the portion of which
may be passed on to Tenant (on a pro-rata basis) as a part of the current
compliance program shall not exceed $40,000.00 in any one year);
(7) the cost of casualty, rental loss, liability and other insurance
applicable to the Project and Landlord's personal property used in connection
therewith;
(8) the cost of trash and garbage removal, air quality audits
(except air quality audits specifically for the benefit of a single tenant, that
do not include analysis or testing of common areas air quality or do not
otherwise benefit the Building), vermin extermination, and snow, ice and debris
removal;
(9) the cost of legal and accounting services incurred by Landlord
in connection with the management, maintenance, operation and repair of the
Project, excluding the owner's or Landlord's general accounting, such as
partnership statements and tax returns, and excluding services described in
Article 9(b)(14) below;
(10) all taxes, assessments and governmental charges, whether or not
directly paid by Landlord, whether federal, state, county or municipal and
whether they be by taxing districts or authorities presently taxing the Project
or by others subsequently created or otherwise, and any other taxes and
assessments attributable to the Project or its operation (and the costs of
contesting any of the same), including business license taxes and fees,
excluding, however, taxes and assessments imposed on the personal property of
the tenants of the Project, federal and state taxes on income, death taxes,
franchise taxes, and any taxes (other than business license taxes and fees)
imposed or measured on or by the income of Landlord from the operation of the
Project; and it is agreed that Tenant will be responsible for ad valorem taxes
on its personal property and on the value of the leasehold
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improvements in the Demised Premises to the extent that the same exceed Building
Standard allowances, if said taxes are based upon an assessment which includes
the cost of such leasehold improvements in excess of Building Standard
allowances (and if the taxing authorities do not separately assess Tenant's
leasehold improvements, Landlord may make an appropriate allocation of the ad
valorem taxes allocated to the Project to give effect to this sentence);
(11) the cost of operating the management office for the Project and
an equitable portion of the cost of operating the management office for Wildwood
Office Park but only such portion of said office that is devoted to managing or
operating the Wildwood Office Park, including in each case the cost of office
supplies, bulletins or newsletters distributed to tenants, postage, telephone
expenses, maintenance and repair of office equipment, non-capital investment
equipment, amortization (together with reasonable financing charges) of the cost
of capital investment equipment, and rent; and
(12) the pro rata share applicable to the Project of the sum of (i)
the costs of operation, maintenance, repair and replacement of the landscaping
and irrigation systems now or hereafter located along Windy Ridge Parkway, ▇▇▇▇▇
▇▇▇▇ Road, Wildwood Parkway, Wildwood Plaza, the right-of-way areas of Powers
Ferry Road adjoining Wildwood Office Park, and all future roadways, whether
public or, constructed in Wildwood Office Park, together with the landscaped
median strips and shoulders of such roadways (but not including the landscaping
and irrigation system located on the shoulder of any roadway contiguous to a
site upon which construction of improvements has commenced) and any and all
light systems located on or in any rights-of-way for roads; (ii) ad valorem
taxes on any roadways now or hereafter located within Wildwood Office Park and
on any medians adjacent to public roads if such medians are not included in
public road rights-of-way; (iii) the costs of ownership, operation, maintenance,
repair and replacement of office park signage for Wildwood Office Park and any
underground sanitary sewer lines, storm water drainage lines, electric lines,
gas lines, water lines, telephone lines and communication lines located across,
through and under any public or roadways now or hereafter located within
Wildwood Office Park, except for any such utility facilities serving solely
another project within Wildwood Office Park; (iv) the costs of ownership,
operation, maintenance, repair and replacement of any transportation system and
equipment from time to time provided or made available to the developed portions
of Wildwood Office Park, including but not limited to ad valorem taxes on
personal property or equipment, electricity, fuel, painting and cleaning costs;
(v) the costs and expenses of ownership and operation of any security patrols or
services, if any, from time to time provided to Wildwood Office Park in general,
but excluding any such security patrols or services provided solely to another
project within Wildwood Office Park; and (vi) such other costs and expenses
incurred by Landlord as "Owner" of the Project under and pursuant to that
certain Master Declaration of Covenants and Cross-Easements for Wildwood Office
Park dated as of January 23, 1991, recorded in Deed Book 5992, page 430, ▇▇▇▇
County, Georgia records, as modified, amended or supplemented from time to time
(the "Master Declaration"). The share of the foregoing costs which are
applicable to the Project shall be determined in accordance with the Master
Declaration.
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(b) For purposes of this Lease, and notwithstanding anything in any other
provision of this Lease to the contrary, "Operating Expenses" shall not
include the following:
(1) the cost of any special work or service performed for any tenant
(including Tenant) at such tenant's cost;
(2) the cost of installing, operating and maintaining any specialty
service, such as an observatory, broadcasting facility, luncheon club,
restaurant, cafeteria, retail store, sundry shop, newsstand, or concession, but
only to the extent such costs exceed those which would normally be expected to
be incurred had such space been general office space;
(3) the cost of correcting defects in construction;
(4) compensation paid to officers and executives of Landlord (but it
is understood that the office park manager, the on-site building manager and
other on-site employees below the grade of building manager may carry a title
such as vice president and the salaries and related benefits of these
officers/employees of Landlord would be allowable Operating Expenses under
Article 9[a][1] above, if they perform the same or similar functions as an
employee which has its salary included in Operating Expenses);
(5) the cost of any items for which Landlord is reimbursed by
insurance, condemnation or otherwise, except for costs reimbursed pursuant to
provisions similar to Articles 8 and 9 hereof;
(6) the cost of any additions, changes, replacements and other items
which are made in order to prepare for a new tenant's occupancy;
(7) the cost of repairs incurred by reason of fire or other casualty
reimbursed by insurance proceeds under policies maintained by Landlord;
(8) insurance premiums to the extent Landlord may be directly
reimbursed therefor, except for premiums reimbursed pursuant to provisions
similar to Articles 8 and 9 hereof;
(9) interest on debt or amortization payments on any mortgage or deed
to secure debt (except to the extent specifically permitted by Article 9[a]) and
rental under any ground lease or other underlying lease;
(10) any real estate brokerage commissions or other costs incurred in
procuring tenants or any fee in lieu of such commission;
10
(11) any advertising expenses incurred in connection with the
marketing of any rentable space;
(12) costs related to the sale or financing of the Project or
Building;
(13) rental payments for base building equipment such as HVAC
equipment and elevators;
(14) costs of repair that are attributable to and are the
responsibility of other, specifically identifiable tenants in the Building;
(15) any expenses for repairs or maintenance which are covered by
warranties and service contracts, to the extent such maintenance and repairs
are made at no cost to Landlord;
(16) costs reimbursed by insurance;
(17) legal expenses arising out of the construction of the
improvements on the Land or the enforcement of the provisions of any lease
affecting the Land or Building, including without limitation this Lease, and
any accounting and legal fees and related costs and expenses associated with
actions against specific tenants or governmental jurisdictions, unless such
actions affect all tenants equitably, and only if the projected benefit to the
tenants exceeds the projected costs;
(18) costs of any extraordinary cleanup, containment, abatement,
removal or remediation of "Hazardous Substances" (as hereinafter defined) to
the extent the introduction of such Hazardous Substances is attributed to and
is the responsibility of another identifiable tenant in the Building, or is
the result of a Hazardous Substance which exists on the Property as of the
date of this Lease;
(19) management fees (Tenant's obligation for a management fee
contribution is set forth in Article 8[b][y] above);
(20) costs to Tenant in excess of $5,000.00 (increased on a pro-rata
basis as the square feet of Rentable Floor Area in the Demised Premises is
increased, from the initial size thereof), to the extent related to any
repairs or replacements to the Building systems done to address the problem of
any computer's hardware or software failure or inability to properly function
because of the failure to properly process or store dates during the year 2000
and thereafter.
10. Tenant Taxes; Rent Taxes. Tenant shall pay promptly when due all taxes
------------------------
directly or indirectly imposed or assessed upon Tenant's gross sales, business
operations, machinery, equipment, trade fixtures and other personal property or
assets, whether such taxes are assessed against Tenant, Landlord or the
Building. In the event that such taxes are imposed or assessed against Landlord
or the Building, Landlord shall furnish Tenant with all applicable tax bills,
public
11
charges and other assessments or impositions and Tenant shall forthwith pay the
same either directly to the taxing authority or, at Landlord's option, to
Landlord. In addition, in the event there is imposed at any time a tax upon
and/or measured by the rental payable by Tenant under this Lease, whether by way
of a sales or use tax or otherwise, Tenant shall be responsible for the payment
of such tax and shall pay the same on or prior to the due date thereof;
provided, however, that the foregoing shall not include any inheritance, estate,
succession, transfer, gift or income tax imposed on or payable by Landlord.
11. Payments. All payments of Rent and other payments to be made to
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Landlord shall be made on a timely basis and shall be payable to Landlord or as
Landlord may otherwise designate. All such payments shall be mailed or
delivered to Landlord's Address designated in Article 1(b) above or at such
other place as Landlord may designate from time to time in writing. If mailed,
all payments shall be mailed in sufficient time and with adequate postage
thereon to be received in Landlord's account by no later than the due date for
such payment. Tenant agrees to pay to Landlord Fifty Dollars ($50.00) for each
check presented to Landlord in payment of any obligation of Tenant which is not
paid by the bank on which it is drawn, together with interest from and after the
due date for such payment at the rate of eighteen percent (18%) per annum on the
amount due.
12. Late Charges. Any Rent or other amounts payable to Landlord under this
------------
Lease, if not paid by the fifth day of the month for which such Rent is due, or
by the due date specified on any invoices from Landlord (none of which invoices
shall be due less than thirty (30) days after notice thereof is given to Tenant)
for any other amounts payable hereunder, shall incur a late charge of Fifty
Dollars ($50.00) for Landlord's administrative expense in processing such
delinquent payment and in addition thereto shall bear interest at the rate of
eighteen percent (18%) per annum from and after the due date for such payment;
provided, however, that the aforesaid late charge shall not be due the first
time in any calendar year that a payment due from Tenant is not made on a timely
basis, unless such payment is not made within ten (10) days of the date notice
of such late payment is given to Tenant. In no event shall the rate of interest
payable on any late payment exceed the legal limits for such interest
enforceable under applicable law.
13. Use Rules. The Demised Premises shall be used for executive, general
---------
administrative and office space purposes in accordance with all applicable laws,
ordinances, rules and regulations of governmental authorities and the Rules and
Regulations attached hereto and made a part hereof. In no event shall any
destination-end retail activities be conducted from the Demised Premises. The
average occupancy rate of the Demised Premises (measured during the "Building
Operating Hours" (as herein defined, and excluding times when employees are
typically not in the Demised Premises) shall in no event be more than one (1)
person per 150 square feet of Rentable Floor Area within the Demised Premises.
Tenant covenants and agrees to abide by the Rules and Regulations in all
respects as now set forth and attached hereto or as hereafter promulgated by
Landlord. Landlord shall have the right at all times during the Lease Term to
publish and promulgate and thereafter enforce such rules and regulations or
changes in the existing Rules and Regulations as it may reasonably deem
necessary in its sole discretion to protect the tenantability, safety,
operation, and welfare of the Demised Premises, the Project and Wildwood Office
Park, so long as such modifications do not materially, adversely impact upon
Tenant's use of
12
or access to the Demised Premises. Landlord acknowledges that Tenant is a
computer software company that requires that the employees have 24 hour access
to the Demised Premises, that the Demised Premises must have after hour air
conditioning and heat at the then standard rate for the Project (as set forth
herein), and that the computers of Tenant require stable, sufficient, continuous
and high quality electrical and telephone service.
14. Alterations. Except for any initial improvement of the Demised
-----------
Premises pursuant to Exhibit "D", which shall be governed by the provisions of
-----------
said Exhibit "D", Tenant shall not make, suffer or permit to be made any
-----------
alterations, additions or improvements to or of the Demised Premises or any part
thereof, or attach any fixtures or equipment thereto, without first obtaining
Landlord's written consent, which consent shall not be unreasonably withheld or
delayed; provided, however, that Tenant shall have the right, without obtaining
Landlord's consent, to move low voltage telephone lines and local area network
lines within and which serve the Demised Premises, so long as such actions do
not affect the service of any other tenant of the Building and do not affect the
Building Systems, and such work is done by an electrician (or other
professional, as appropriate, and which may be an employee of Tenant) consented
to by Landlord (with such consent as to the identity of such a person applying
to subsequent work of the same or similar type by such person). Any such
alterations, additions or improvements to the Demised Premises consented to by
Landlord shall be made by Landlord or under Landlord's supervision for Tenant's
account (at such reasonable rates as are typically charged for such work) and
Tenant shall reimburse Landlord for all costs thereof (including a reasonable
charge for Landlord's overhead), as Rent, within thirty (30) days after receipt
of a statement. All such alterations, additions and improvements shall become
Landlord's property at the expiration or earlier termination of the Lease Term
and shall remain on the Demised Premises without compensation to Tenant unless
Landlord elects by notice to Tenant, at the time Landlord responds to Tenant as
to whether or not such alterations may be constructed in or made to the Demised
Premises, to have Tenant remove such alterations, additions and improvements, in
which event, notwithstanding any contrary provisions respecting such
alterations, additions and improvements contained in Article 32 hereof, Tenant
shall promptly restore, at its sole cost and expense, the Demised Premises to
its condition prior to the installation of such alterations, additions and
improvements, normal wear and tear excepted.
15. Repairs.
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(a) Landlord shall maintain in good order and repair, subject to normal
wear and tear and subject to casualty and condemnation, the Building
(excluding the Demised Premises and other portions of the Building leased to
other tenants), and all plumbing, glass, HVAC, wiring and telephone which is a
part of the Building systems (and not a part of any improvements built as part
of any tenant's fit-up and finish work), the Building parking facilities, the
public areas and the landscaped areas; provided, however, that the cost of
maintaining such items shall be included as an Operating Expense in accordance
with and subject to Article 9 herein. Notwithstanding the foregoing
obligation, the cost of any repairs or maintenance to the foregoing
necessitated by the intentional acts or negligence of Tenant or its agents,
contractors, employees, invitees, licensees, tenants or assigns, shall be
borne solely by Tenant and shall be deemed Rent hereunder and shall be
reimbursed by Tenant to Landlord upon demand. Landlord shall not be required
to make
13
any repairs or improvements to the Demised Premises except structural repairs
and Building systems (as set forth above) necessary for safety and
tenantability.
(b) Tenant covenants and agrees that it will take good care of the Demised
Premises and all alterations, additions and improvements thereto and will keep
and maintain the same in good condition and repair, except for normal wear and
tear and casualty. Tenant shall at once report, in writing, to Landlord any
defective or dangerous condition known to Tenant. To the fullest extent
permitted by law, Tenant hereby waives all rights to make repairs at the
expense of Landlord or in lieu thereof to vacate the Demised Premises as may
be provided by any law, statute or ordinance now or hereafter in effect.
Landlord has no obligation and has made no promise to alter, remodel, improve,
repair, decorate or paint the Demised Premises or any part thereof, except as
specifically and expressly herein set forth.
16. Landlord's Right of Entry. (a) Landlord shall retain duplicate keys to
-------------------------
all doors of the Demised Premises and Landlord and its agents, employees and
independent contractors shall have the right to enter the Demised Premises at
reasonable hours to inspect and examine same, to make repairs, additions,
alterations, and improvements, so long as such entry does not substantially
interrupt Tenant's business, to exhibit the Demised Premises to mortgagees,
prospective mortgagees, purchasers or tenants, and to inspect the Demised
Premises to ascertain that Tenant is complying with all of its covenants and
obligations hereunder, all without being liable to Tenant in any manner
whatsoever for any damages arising therefrom; provided, however, that Landlord
shall, except in case of emergency, afford Tenant such prior notification of an
entry into the Demised Premises as shall be reasonably practicable under the
circumstances, and in all events (except in an emergency) on no less than
twenty-four (24) hours prior notice. Landlord shall only enter into contracts
with companies providing janitorial and security services for the Building which
require such parties to carry liability insurance and be bonded. Landlord shall
comply with any reasonable requests from Tenant related to safeguarding Tenant's
trade secrets in the Demised Premises; provided, however, that Landlord's only
liability with respect thereto shall arise under Article 37 hereunder.
(b) Landlord shall be allowed to take into and through the Demised
Premises any and all materials that may be required to make such repairs,
additions, alterations or improvements. During such time as such work is being
carried on in or about the Demised Premises, the Rent provided herein shall not
▇▇▇▇▇, and Tenant waives any claim or cause of action against Landlord for
damages by reason of interruption of Tenant's business or loss of profits
therefrom because of the prosecution of any such work or any part thereof.
Landlord will use its reasonable efforts to minimize such disruptions of
Tenant's business.
17. Insurance. Tenant shall procure at its expense and maintain throughout
---------
the Lease Term a policy or policies of special form/all-risk insurance insuring
the full replacement cost of its furniture, equipment, supplies, and other
property owned, leased, held or possessed by it and contained in the Demised
Premises, together with the excess value of the improvements to the Demised
Premises over the Construction Allowance, and worker's compensation insurance as
required by applicable law. Tenant shall also procure at its expense and
maintain throughout the
14
Lease Term a policy or policies of commercial general liability insurance,
insuring Tenant, Landlord and any other person designated by Landlord, against
any and all liability for injury to or death of a person or persons and for
damage to property occasioned by or arising out of any construction work being
done on the Demised Premises, or arising out of the condition, use, or occupancy
of the Demised Premises, or in any way occasioned by or arising out of the
activities of Tenant, its agents, contractors, employees, guests, or licensees
in the Demised Premises, or other portions of the Building, the Project or
Wildwood Office Park, the limits of such policy or policies to be in combined
single limits for both damage to property and personal injury and in amounts not
less than Three Million Dollars ($3,000,000) for each occurrence. Such insurance
shall, in addition, extend to any liability of Tenant arising out of the
indemnities provided for in this Lease. Tenant shall also carry such other types
of insurance in form and amount which Landlord shall reasonably deem to be
prudent for Tenant to carry, should the circumstances or conditions so merit
Tenant carrying such type of insurance, and if other owners of first-class
buildings in the area of the Building are generally requiring such coverage. All
insurance policies procured and maintained by Tenant pursuant to this Article 17
shall name Landlord and any additional parties designated by Landlord as
additional insured, shall be carried with companies licensed to do business in
the State of Georgia having a rating from Best's Insurance Reports of not less
than A-/X, and shall be non-cancelable and not subject to material change except
after thirty (30) days' written notice to Landlord. Such policies or duly
executed certificates of insurance with respect thereto, accompanied by proof of
payment of the premium therefor, shall be delivered to Landlord prior to the
Rental Commencement Date, and renewals of such policies shall be delivered to
Landlord at least thirty (30) days prior to the expiration of each respective
policy term.
Landlord shall procure and maintain at its expense (but with the expense to be
included in Operating Expenses) throughout the Lease Term a policy or policies
of special form/all-risk (including rent loss coverage) real and personal
property insurance covering the Project (including the leasehold improvements in
the Demised Premises up to the amount of the Construction Allowance, but
excluding Tenant's personal property and equipment), in an amount equal to the
full insurable replacement cost thereof as such may increase from time to time
(but such insurance may provide for a commercially reasonable deductible), and
in an amount sufficient to comply with any co-insurance requirements in such
policy, and a policy of workers' compensation insurance, if any, as required by
applicable law. In addition, Landlord shall procure and maintain at its expense
(but with the expense to be included in Operating Expenses) and shall thereafter
maintain throughout the Lease Term, a commercial general liability insurance
policy covering the Project with combined single limits for both damage to
property and personal injury of not less than Three Million Dollars ($3,000,000)
per occurrence, subject to annual aggregate limits of not less than Five Million
Dollars ($5,000,000). Landlord may also carry such other types of insurance in
form and amounts which Landlord shall determine to be appropriate from time to
time, and the cost thereof shall be included in Operating Expenses. All such
policies procured and maintained by Landlord pursuant to this Article 17 shall
be carried with companies licensed to do business in the State of Georgia. Any
insurance required to be carried by Landlord hereunder may be carried under
blanket policies covering other properties of Landlord and/or its partners
and/or their respective related or affiliated corporations so long as such
blanket policies provide insurance at all times for the Project as required by
this Lease.
15
18. Waiver of Subrogation. Landlord and Tenant shall each have included in
---------------------
all policies of fire, extended coverage, business interruption and loss of rents
insurance respectively obtained by them covering the Demised Premises, the
Building and contents therein, a waiver by the insurer of all right of
subrogation against the other in connection with any loss or damage thereby
insured against. Any additional premium for such waiver shall be paid by the
primary insured. To the full extent permitted by law, Landlord and Tenant each
waives all right of recovery against the other for, and agrees to release the
other from liability for, loss or damage to the extent such loss or damage is
covered by valid and collectible insurance in effect at the time of such loss or
damage or would be covered by the insurance required to be maintained under this
Lease by the party seeking recovery.
19. Default.
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(a) The following events shall be deemed to be events of default by
Tenant under this Lease: (i) Tenant shall fail to pay any installment of Rent
or any other charge or assessment against Tenant pursuant to the terms hereof
within five (5) days after the date notice of such late payment is received by
Tenant; provided, however, if more than two (2) payments due of Tenant
hereunder in any one (1) calendar year are not made until after notice of such
late payment is received by Tenant, then it shall be an event of default
hereunder by Tenant if any subsequent payment due of Tenant hereunder in the
same calendar year is not made within ten (10) days of the date when due; (ii)
Tenant shall fail to comply with any term, provision, covenant or warranty
made under this Lease by Tenant, other than the payment of the Rent or any
other charge or assessment payable by Tenant, and shall not cure such failure
within fifteen (15) business days after notice thereof to Tenant, or, if such
matter cannot be cured within fifteen (15) business days, if Tenant does not
commence to cure such matter within fifteen (15) business days and diligently
pursue such cure to completion (and in any event cure such matter within
ninety (90) days after notice thereof); (iii) Tenant or any guarantor of this
Lease shall make a general assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts as they become due, or shall
file a petition in bankruptcy, or shall be adjudicated as bankrupt or
insolvent, or shall file a petition in any proceeding seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law or
regulation, or shall file an answer admitting or fail timely to contest the
material allegations of a petition filed against it in any such proceeding;
(iv) a proceeding is commenced against Tenant or any guarantor of this Lease
seeking any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future
statute, law or regulation, and such proceeding shall not have been dismissed
within sixty (60) days after the commencement thereof; (v) a receiver or
trustee shall be appointed for the Demised Premises or for all or
substantially all of the assets of Tenant or of any guarantor of this Lease;
(vi) Tenant shall fail to take possession of the Demised Premises as provided
in this Lease; (vii) Tenant shall do or permit to be done anything which
creates a lien upon the Demised Premises or the Project and such lien is not
removed or discharged within fifteen (15) days after the filing thereof;
(viii) Tenant shall fail to return a properly executed instrument to Landlord
in accordance with the provisions of Article 27 hereof within the time period
provided for such return following Landlord's
16
request for same as provided in Article 27, and Tenant fails to deliver
such item within five (5) days after notice is given to Tenant that Tenant
has failed to deliver such item; or (ix) Tenant shall fail to return a
properly executed estoppel certificate to Landlord in accordance with the
provisions of Article 28 hereof within the time period provided for such
return following Landlord's request for same as provided in Article 28, and
Tenant fails to deliver such item within five (5) days after notice is
given to Tenant that Tenant has failed to deliver such item.
(b) Upon the occurrence of any of the aforesaid events of default,
Landlord shall have the option to pursue any one or more of the following
remedies without any notice or demand whatsoever, except as expressly
specified in Article 19(a) above: (i) terminate this Lease, in which event
Tenant shall immediately surrender the Demised Premises to Landlord and if
Tenant fails to do so, Landlord may without prejudice to any other remedy
which it may have for possession or arrearages in Rent, enter upon and take
possession of the Demised Premises and expel or remove Tenant and any other
person who may be occupying said Demised Premises or any part thereof
without being liable for prosecution or any claim of damages therefor;
Tenant hereby agreeing to pay to Landlord on demand the amount of all loss
and damage which Landlord may suffer by reason of such termination, whether
through inability to relet the Demised Premises on satisfactory terms or
otherwise; (ii) terminate Tenant's right of possession (but not this Lease)
and enter upon and take possession of the Demised Premises and expel or
remove Tenant and any other person who may be occupying said Demised
Premises or any part thereof, by entry, dispossessory suit or otherwise,
without thereby releasing Tenant from any liability hereunder, without
terminating this Lease, and without being liable for prosecution or any
claim of damages therefor and, if Landlord so elects, make such
alterations, redecorations and repairs as, in Landlord's reasonable
judgment, may be necessary to relet the Demised Premises, and Landlord may,
but shall be under no obligation to do so, relet the Demised Premises or
any portion thereof in Landlord's or Tenant's name, but for the account of
Tenant, for such term or terms (which may be for a term extending beyond
the Lease Term) and at such rental or rentals and upon such other terms as
Landlord may deem advisable, with or without advertisement, and by
negotiations, and receive the rent therefor, Tenant hereby agreeing to pay
to Landlord the deficiency, if any, between all Rent reserved hereunder and
the total rental applicable to the Lease Term hereof obtained by Landlord
re-letting, and Tenant shall be liable for Landlord's expenses in
redecorating and restoring the Demised Premises and all reasonable costs
incident to such re-letting, including broker's commissions and lease
assumptions, and in no event shall Tenant be entitled to any rentals
received by Landlord in excess of the amounts due by Tenant hereunder; or
(iii) enter upon the Demised Premises without being liable for prosecution
or any claim of damages therefor, and do whatever Tenant is obligated to do
under the terms of this Lease; and Tenant agrees to reimburse Landlord on
demand for any expenses including, without limitation, reasonable
attorneys' fees which Landlord may incur in thus effecting compliance with
Tenant's obligations under this Lease and Tenant further agrees that
Landlord shall not be liable for any damages resulting to Tenant from such
action, whether caused by negligence of Landlord or otherwise. If this
Lease is terminated by Landlord as a result of the occurrence of an event
of default, Landlord may declare to be due and payable
17
immediately, the present value (calculated with a discount factor of eight
percent [8%] per annum) of the difference between (x) the entire amount of
Rent and other charges and assessments which in Landlord's reasonable
determination would become due and payable during the remainder of the
Lease Term determined as though this Lease had not been terminated
(including, but not limited to, increases in Rent pursuant to Article 7
hereof), and (y) the then fair market rental value of the Demised Premises
for the remainder of the Lease Term. Upon the acceleration of such amounts,
Tenant agrees to pay the same at once, together with all Rent and other
charges and assessments theretofore due, at Landlord's address as provided
herein, it being agreed that such payment shall not constitute a penalty or
forfeiture but shall constitute liquidated damages for Tenant's failure to
comply with the terms and provisions of this Lease (Landlord and Tenant
agreeing that Landlord's actual damages in such event are impossible to
ascertain and that the amount set forth above is a reasonable estimate
thereof).
(c) Pursuit of any of the foregoing remedies shall not preclude
pursuit of any other remedy herein provided or any other remedy provided by
law or at equity, nor shall pursuit of any remedy herein provided
constitute an election of remedies thereby excluding the later election of
an alternate remedy, or a forfeiture or waiver of any Rent or other charges
and assessments payable by Tenant and due to Landlord hereunder or of any
damages accruing to Landlord by reason of violation of any of the terms,
covenants, warranties and provisions herein contained. No reentry or taking
possession of the Demised Premises by Landlord or any other action taken by
or on behalf of Landlord shall be construed to be an acceptance of a
surrender of this Lease or an election by Landlord to terminate this Lease
unless written notice of such intention is given to Tenant. Forbearance by
Landlord to enforce one or more of the remedies herein provided upon an
event of default shall not be deemed or construed to constitute a waiver of
such default. In determining the amount of loss or damage which Landlord
may suffer by reason of termination of this Lease or the deficiency arising
by reason of any reletting of the Demised Premises by Landlord as above
provided, allowance shall be made for the expense of repossession. Tenant
agrees to pay to Landlord all costs and expenses incurred by Landlord in
the enforcement of this Lease, including, without limitation, the fees of
Landlord's attorneys as provided in Article 25 hereof.
(d) The abandonment or vacation of the Demised Premises shall not be
an event of default by Tenant under this Lease, but in the event Tenant
shall abandon or vacate the Demised Premises, unless due to a casualty,
condemnation or remodeling (which remodeling is being diligently
prosecuted), Landlord may, at any time while such abandonment or vacation
of the Demised Premises is continuing, notify Tenant of Landlord's election
to terminate this Lease, in which event this Lease shall terminate on the
date so selected by Landlord in Landlord's written election to terminate
this Lease, and on the date so set forth in Landlord's written election,
this Lease shall terminate and come to an end as though the date selected
by Landlord were the last day of the natural expiration of the Lease Term;
provided, however, that no such termination shall affect or limit any
obligations or liabilities of Tenant arising or accruing under this Lease
prior to the effective date of any such termination; and provided further
that Tenant may rescind Landlord's
18
election by (i) notifying Landlord in writing, within ten (10) days after
receipt of Landlord's written election to terminate this Lease, that Tenant
will reoccupy the Demised Premises for business purposes and (ii) in fact,
so reoccupying the Demised Premises for business purposes within sixty (60)
days thereafter. For the purposes of this Lease, Tenant shall not have
abandoned the Demised Premises if Tenant has sublet the Demised Premises or
assigned its interest in the Lease.
20. Waiver of Breach. No waiver of any breach of the covenants,
----------------
warranties, agreements, provisions, or conditions contained in this Lease shall
be construed as a waiver of said covenant, warranty, provision, agreement or
condition or of any subsequent breach thereof, and if any breach shall occur and
afterwards be compromised, settled or adjusted, this Lease shall continue in
full force and effect as if no breach had occurred.
21. Assignment and Subletting. (a) Tenant shall not, without the prior
-------------------------
written consent of Landlord, such consent of Landlord not to be unreasonably
withheld or delayed, assign this Lease or any interest herein or in the Demised
Premises, or mortgage, pledge, encumber, hypothecate or otherwise transfer or
sublet the Demised Premises or any part thereof or permit the use of the Demised
Premises by any party other than Tenant. Consent to one or more such transfers
or subleases shall not destroy or waive this provision, and all subsequent
transfers and subleases shall likewise be made only upon obtaining the prior
written consent of Landlord. Without limiting the foregoing prohibition, in no
event shall Tenant assign this Lease or any interest herein, whether directly,
indirectly or by operation of law, or sublet the Demised Premises or any part
thereof or permit the use of the Demised Premises or any part thereof by any
party (i) if the proposed assignee or subtenant is a party who would (or whose
use would) detract from the character of the Building as a first-class building,
such as, without limitation, a dental, medical or chiropractic office or a
governmental office, (ii) if the proposed use of the Demised Premises shall
involve an occupancy rate of more than one (1) person per 150 square feet of
Rentable Floor Area within the Demised Premises, (iii) if the proposed
assignment or subletting shall be to a governmental subdivision or agency or any
person or entity who enjoys diplomatic or sovereign immunity, (iv) if such
proposed assignee or subtenant is an existing tenant of the Building, or (v) if
such proposed assignment, subletting or use would contravene any restrictive
covenant (including any exclusive use) granted to any other tenant of the
Building. Sublessees or transferees of the Demised Premises for the balance of
the Lease Term shall become directly liable to Landlord for all obligations of
Tenant hereunder, without relieving Tenant (or any guarantor of Tenant's
obligations hereunder) of any liability therefor, and Tenant shall remain
obligated for all liability to Landlord arising under this Lease during the
entire remaining Lease Term including any extensions thereof, whether or not
authorized herein. If Tenant is a partnership, a withdrawal or change, whether
voluntary, involuntary or by operation of law, of partners owning a controlling
interest in the Tenant shall be deemed a voluntary assignment of this Lease and
subject to the foregoing provisions, unless such involves a transaction in which
the successor or surviving entity, subject to and assuming this Lease, has a net
worth equal to or greater than the predecessor entity and will be utilizing the
Demised Premises for a purpose substantially similar to the use of the
predecessor, and in any event Tenant shall provide notice to, but does not have
to obtain the prior consent of Landlord, concerning such transaction. If Tenant
is a corporation (including a limited liability company), any dissolution,
merger, consolidation or other reorganization of Tenant, or the sale or transfer
of a
19
controlling interest in the capital stock of Tenant, shall be deemed a voluntary
assignment of this Lease and subject to the foregoing provisions, unless such
involves a transaction in which the successor or surviving entity, subject to
and assuming this Lease, has a net worth equal to or greater than the
predecessor entity and will be utilizing the Demised Premises for a purpose
substantially similar to the use of the predecessor, and in any event Tenant
shall provide notice to, but does not have to obtain the prior consent of
Landlord, concerning such transaction. Tenant may also have affiliated entities
conducting business within the Demised Premises with notice to, but without the
consent of Landlord, as long as there is no physical separation of or distinct
area for such other entities, and such other parties otherwise comply with the
terms of the Lease.
(b) Landlord may, as a prior condition to considering any request for
consent to an assignment or sublease, require Tenant to obtain and submit
current financial statements of any proposed subtenant or assignee. In the event
Landlord consents to an assignment or sublease, Tenant shall pay to Landlord a
fee to cover Landlord's accounting costs plus any legal fees incurred by
Landlord as a result of the assignment or sublease. Landlord may require a
reasonable additional security deposit from the assignee or subtenant as a
condition of its consent. Any consideration, in excess of the Rent and other
charges and sums due and payable by Tenant under this Lease, paid to Tenant by
any assignee of this Lease for its assignment, or by any sublessee under or in
connection with its sublease, or otherwise paid to Tenant by another party for
use and occupancy of the Demised Premises or any portion thereof, shall be
promptly remitted by Tenant to Landlord as additional rent hereunder and Tenant
shall have no right or claim thereto as against Landlord; provided, however,
that Tenant shall be entitled to deduct from such amounts due Landlord any
reasonable expenses actually incurred by Tenant in procuring such a sublease or
assignment. No assignment of this Lease consented to by Landlord shall be
effective unless and until Landlord shall receive an original assignment and
assumption agreement, in form and substance satisfactory to Landlord, signed by
Tenant and Tenant's proposed assignee, whereby the assignee assumes due
performance of this Lease to be done and performed for the balance of the then
remaining Lease Term of this Lease. No subletting of the Demised Premises, or
any part thereof, shall be effective unless and until there shall have been
delivered to Landlord an agreement, in form and substance satisfactory to
Landlord, signed by Tenant and the proposed sublessee, whereby the sublessee
acknowledges the right of Landlord to continue or terminate any sublease, in
Landlord's sole discretion, upon termination of this Lease, and such sublessee
agrees to recognize and attorn to Landlord in the event that Landlord elects
under such circumstances to continue such sublease.
22. Destruction.
-----------
(a) If the Demised Premises are damaged by fire or other casualty,
the same shall be repaired or rebuilt as speedily as practical under the
circumstances at the expense of the Landlord (subject to subparagraph [c]
below), unless this Lease is terminated as provided in this Article 22, and
during the period required for restoration, a just and proportionate part
of Base Rental shall be abated until the Demised Premises are repaired or
rebuilt.
20
(b) If the Demised Premises are (i) damaged to such an extent that repairs
cannot, in Landlord's reasonable judgment, be completed within one (1) year
after the date of the casualty or (ii) damaged or destroyed as a result of a
risk which is not insured under standard special form/all-risk insurance
policies, or (iii) damaged or destroyed during the last eighteen (18) months of
the Lease Term, or if the Building is damaged in whole or in part (whether or
not the Demised Premises are damaged), to such an extent that the Building
cannot, in Landlord's reasonable judgment, be operated economically as an
integral unit, then and in any such event Landlord may at its option terminate
this Lease by notice in writing to the Tenant within sixty (60) days after the
date of such occurrence. If the Demised Premises are damaged to such an extent
that repairs cannot, in Landlord's judgment, be completed within one (1) year
after the date of the casualty or if the Demised Premises are substantially
damaged during the last eighteen (18) months of the Lease Term, then in either
such event Tenant may elect to terminate this Lease by notice in writing to
Landlord within fifteen (15) days after the date of such occurrence. Unless
Landlord or Tenant elects to terminate this Lease as hereinabove provided, this
Lease will remain in full force and effect and Landlord shall repair such damage
at its expense to the extent required in this Article as expeditiously as
possible under the circumstances.
(c) If Landlord should elect or be obligated pursuant to subparagraph (a)
above to repair or rebuild because of any damage or destruction, Landlord's
obligation shall be limited to the original Building and any other work or
improvements in the Demised Premises (to the extent such leasehold improvements
can be restored for the amount of the Construction Allowance applicable thereto)
and shall not extend to any furniture, equipment, supplies or other personal
property owned or leased by Tenant, its employees, contractors, invitees or
licensees. If the cost of performing such repairs and restoration exceeds the
actual proceeds of insurance paid or payable to Landlord on account of such
casualty, or if Landlord's mortgagee or the lessor under a ground or underlying
lease shall require that any insurance proceeds from a casualty loss be paid to
it, Landlord may terminate this Lease unless Tenant, within thirty (30) days
after demand therefor, deposits with Landlord a sum of money sufficient to pay
the difference between the cost of repair and the proceeds of the insurance
available to Landlord for such purpose.
(d) In no event shall Landlord be liable for any loss or damage sustained
by Tenant by reason of casualties mentioned hereinabove or any other accidental
casualty.
23. Landlord's Lien. Intentionally Deleted.
--------------- ---------------------
24. Services by Landlord. Landlord shall provide the Building Standard
--------------------
Services described on Exhibit "E" attached hereto and by reference made a part
-----------
hereof.
25. Attorneys' Fees and Homestead. If any Rent or other debt owing by
-----------------------------
Tenant to Landlord hereunder is collected by or through an attorney-at-law,
Tenant agrees to pay an additional amount equal to Landlord's reasonable
attorney's fees actually incurred in connection with such action. If Landlord
or Tenant uses the services of any attorney in order to secure compliance with
any other provisions of this Lease, to recover damages for any breach or default
of
21
any other provisions of this Lease, or to terminate this Lease, the non-
prevailing party in any such matter shall reimburse the other party hereto upon
demand for any and all attorney's fees and expenses so incurred by the
prevailing party. Tenant waives all homestead rights and exemptions which it
may have under any law as against any obligation owing under this Lease, and
assigns to Landlord its homestead and exemptions to the extent necessary to
secure payment and performance of its covenants and agreements hereunder.
26. Time. Time is of the essence of this Lease and whenever a certain day
----
is stated for payment or performance of any obligation of Tenant or Landlord,
the same enters into and becomes a part of the consideration hereof.
27. Subordination and Attornment.
----------------------------
(a) Tenant agrees that this Lease and all rights of Tenant hereunder
are and shall be subject and subordinate to any ground or underlying lease
which may now or hereafter be in effect regarding the Project or any
component thereof, to any mortgage now or hereafter encumbering the Demised
Premises or the Project or any component thereof, to all advances made or
hereafter to be made upon the security of such mortgage, to all amendments,
modifications, renewals, consolidations, extensions, and restatements of
such mortgage, and to any replacements and substitutions for such mortgage.
The terms of this provision shall be self-operative and no further
instrument of subordination shall be required. Tenant, however, upon
request of any party in interest, shall execute promptly such instrument or
certificates as may be reasonably required to carry out the intent hereof,
whether said requirement is that of Landlord or any other party in
interest, including, without limitation, any mortgagee. Landlord is hereby
irrevocably vested with full power and authority as attorney-in-fact for
Tenant and in Tenant's name, place and stead, to subordinate Tenant's
interest under this Lease to the lien or security title of any mortgage and
to any future instrument amending, modifying, renewing, consolidating,
extending, restating, replacing or substituting any such mortgage.
(b) If any mortgagee or lessee under a ground or underlying lease
elects to have this Lease superior to its mortgage or lease and signifies
its election in the instrument creating its lien or lease or by separate
recorded instrument, then this Lease shall be superior to such mortgage or
lease, as the case may be. The term "mortgage", as used in this Lease,
includes any deed to secure debt, deed of trust or security deed and any
other instrument creating a lien in connection with any other method of
financing or refinancing. The term "mortgagee", as used in this Lease,
refers to the holder(s) of the indebtedness secured by a mortgage.
(c) In the event any proceedings are brought for the foreclosure of,
or in the event of exercise of the power of sale under, any mortgage
covering the Demised Premises or the Project, or in the event the interests
of Landlord under this Lease shall be transferred by reason of deed in lieu
of foreclosure or other legal proceedings, or in the event of termination
of any lease under which Landlord may hold title, Tenant shall, at the
option of the transferee or purchaser at foreclosure or under power of
sale, or the lessor of the
22
Landlord upon such lease termination, as the case may be (sometimes
hereinafter called "such person"), attorn to such person and shall
recognize and be bound and obligated hereunder to such person as the
Landlord under this Lease; provided, however, that no such person shall be
(i) bound by any payment of Rent for more than one (1) month in advance,
except prepayments in the nature of security for the performance by Tenant
of its obligations under this Lease (and then only if such prepayments have
been deposited with and are under the control of such person); (ii) bound
by any amendment or modification of this Lease made without the express
written consent of the mortgagee or lessor of the Landlord, as the case may
be; (iii) obligated to cure any defaults under this Lease of any prior
landlord (including Landlord); (iv) liable for any act or omission of any
prior landlord (including Landlord); (v) subject to any offsets or defenses
which Tenant might have against any prior landlord (including Landlord); or
(vi) bound by any warranty or representation of any prior landlord
(including Landlord) relating to work performed by any prior landlord
(including Landlord) under this Lease. Tenant agrees to execute any
attornment agreement not in conflict herewith requested by Landlord, the
mortgagee or such person. Tenant's obligation to attorn to such person
shall survive the exercise of any such power of sale, foreclosure or other
proceeding. Tenant agrees that the institution of any suit, action or other
proceeding by any mortgagee to realize on Landlord's interest in the
Demised Premises or the Building pursuant to the powers granted to a
mortgagee under its mortgage, shall not, by operation of law or otherwise,
result in the cancellation or termination of the obligations of the Tenant
hereunder. Landlord and Tenant agree that notwithstanding that this Lease
is expressly subject and subordinate to any mortgages, any mortgagee, its
successors and assigns, or other holder of a mortgage or of a note secured
thereby, may sell the Demised Premises or the Building, in the manner
provided in the mortgage and may, at the option of such mortgagee, its
successors and assigns, or other holder of the mortgage or note secured
thereby, make such sale of the Demised Premises or Building subject to this
Lease.
28. Estoppel Certificates. Within ten (10) days after request therefor by
---------------------
Landlord, Tenant agrees to execute and deliver to Landlord in recordable form an
estoppel certificate addressed to Landlord, any mortgagee or assignee of
Landlord's interest in, or purchaser of, the Demised Premises or the Building or
any part thereof, certifying (if such be the case) that this Lease is unmodified
and is in full force and effect (and if there have been modifications, that the
same is in full force and effect as modified and stating said modifications);
that there are no defenses or offsets against the enforcement thereof or stating
those claimed by Tenant; and stating the date to which Rent and other charges
have been paid. Such certificate shall also include such other information as
may reasonably be required by such mortgagee, proposed mortgagee, assignee,
purchaser or Landlord. Any such certificate may be relied upon by Landlord, any
mortgagee, proposed mortgagee, assignee, purchaser and any other party to whom
such certificate is addressed.
29. No Estate. This Lease shall create the relationship of landlord and
---------
tenant only between Landlord and Tenant and no estate shall pass out of
Landlord. Tenant shall have only an usufruct, not subject to levy and sale and
not assignable in whole or in part by Tenant except as herein provided.
23
30. Cumulative Rights. All rights, powers and privileges conferred
-----------------
hereunder upon the parties hereto shall be cumulative to, but not restrictive
of, or in lieu of those conferred by law.
31. Holding Over. If Tenant remains in possession after expiration or
------------
termination of the Lease Term with or without Landlord's written consent, Tenant
shall become a tenant-at-sufferance, and there shall be no renewal of this Lease
by operation of law. During the period of any such holding over, all provisions
of this Lease shall be and remain in effect except that the monthly rental shall
be one hundred fifty percent (150%) of the amount of Rent (including any
adjustments as provided herein) payable for the last full calendar month of the
Lease Term including renewals or extensions, for the first three (3) months of
the holdover, and then double the amount of such Rent thereafter. The inclusion
of the preceding sentence in this Lease shall not be construed as Landlord's
consent for Tenant to hold over.
32. Surrender of Premises. Upon the expiration or other termination of
---------------------
this Lease, Tenant shall quit and surrender to Landlord the Demised Premises and
every part thereof and all alterations, additions and improvements thereto,
broom clean and in good condition and state of repair, reasonable wear and tear
only excepted. If Tenant is not then in default, Tenant shall remove all
personalty and equipment not attached to the Demised Premises which it has
placed upon the Demised Premises, and Tenant shall restore the Demised Premises
to the condition immediately preceding the time of placement thereof. If Tenant
shall fail or refuse to remove all of Tenant's effects, personalty and equipment
from the Demised Premises upon the expiration or termination of this Lease for
any cause whatsoever or upon the Tenant being dispossessed by process of law or
otherwise, such effects, personalty and equipment shall be deemed conclusively
to be abandoned and may be appropriated, sold, stored, destroyed or otherwise
disposed of by Landlord without written notice to Tenant or any other party and
without obligation to account for them. Tenant shall pay Landlord on demand any
and all expenses incurred by Landlord in the removal of such property,
including, without limitation, the cost of repairing any damage to the Building
or Project caused by the removal of such property and storage charges (if
Landlord elects to store such property). The covenants and conditions of this
Article 32 shall survive any expiration or termination of this Lease.
33. Notices. All notices required or permitted to be given hereunder
-------
shall be in writing and may be delivered in person to either party or may be
sent by courier (including a recognized overnight courier service) or by United
States Mail, certified, return receipt requested, postage prepaid. Any such
notice shall be deemed received by the party to whom it was sent (i) in the case
of personal delivery or courier delivery, on the date of delivery to such party,
and (ii) in the case of certified mail, the date receipt is acknowledged on the
return receipt for such notice or, if delivery is rejected or refused or the
U.S. Postal Service is unable to deliver same because of changed address of
which no notice was given pursuant hereto, the first date of such rejection,
refusal or inability to deliver. All such notices shall be addressed to Landlord
or Tenant at their respective address set forth hereinabove or at such other
address as either party shall have theretofore given to the other by notice as
herein provided. Tenant hereby designates and appoints as its agent to receive
notice of all distraint proceedings and all other notices required under this
Lease, the person in charge of the Demised Premises at the time said notice is
given or occupying said Demised Premises at said time; and, if no person is in
charge of or occupying the said Demised Premises, then such service or
24
notice may be made by attaching the same, in lieu of mailing, on the main
entrance to the Demised Premises.
34. Damage or Theft of Personal Property. All personal property brought
------------------------------------
into Demised Premises by Tenant, or Tenant's employees or business visitors,
shall be at the risk of Tenant only, and Landlord shall not be liable for theft
thereof or any damage thereto occasioned by any act of co-tenants, occupants,
invitees or other users of the Building or any other person, unless arising out
of Landlord's gross negligence or willful misconduct. Landlord shall not at any
time be liable for damage to any property in or upon the Demised Premises, which
results from power surges or other deviations from the constancy of electrical
service or from gas, smoke, water, rain, ice or snow which issues or leaks from
or forms upon any part of the Building or from the pipes or plumbing work of the
same, or from any other place whatsoever, unless arising out of Landlord's gross
negligence or willful misconduct.
35. Eminent Domain.
--------------
(a) If all or part of the Demised Premises shall be taken for any
public or quasi-public use by virtue of the exercise of the power of
eminent domain or by purchase in lieu thereof, this Lease shall terminate
as to the part so taken as of the date of taking, and, in the case of a
partial taking, either Landlord or Tenant shall have the right to terminate
this Lease as to the balance of the Demised Premises by written notice to
the other within thirty (30) days after such date; provided, however, that
a condition to the exercise by Tenant of such right to terminate shall be
that the portion of the Demised Premises taken shall be of such extent and
nature as substantially to handicap, impede or impair Tenant's use of the
balance of the Demised Premises. If title to so much of the Building is
taken that a reasonable amount of reconstruction thereof will not in
Landlord's sole discretion result in the Building being a practical
improvement and reasonably suitable for use for the purpose for which it is
designed, then this Lease shall terminate on the date that the condemning
authority actually takes possession of the part so condemned or purchased.
(b) If this Lease is terminated under the provisions of this Article
35, Rent shall be apportioned and adjusted as of the date of termination.
Tenant shall have no claim against Landlord or against the condemning
authority for the value of any leasehold estate or for the value of the
unexpired Lease Term provided that the foregoing shall not preclude any
claim that Tenant may have against the condemning authority for the
unamortized cost of leasehold improvements, to the extent the same were
installed at Tenant's expense (and not with the proceeds of the
Construction Allowance), or for loss of business, moving expenses or other
consequential damages, in accordance with subparagraph (d) below.
(c) If there is a partial taking of the Building and this Lease is
not thereupon terminated under the provisions of this Article 35, then this
Lease shall remain in full force and effect, and Landlord shall, within a
reasonable time thereafter, repair or reconstruct the remaining portion of
the Building to the extent necessary to make the same a complete
architectural unit; provided that in complying with its obligations
hereunder Landlord shall
25
not be required to expend more than the net proceeds of the condemnation
award which are paid to Landlord.
(d) All compensation awarded or paid to Landlord upon a total or
partial taking of the Demised Premises or the Building shall belong to and
be the property of Landlord without any participation by Tenant. Nothing
herein shall be construed to preclude Tenant from prosecuting any claim
directly against the condemning authority for loss of business, for damage
to, and cost of removal of, trade fixtures, furniture and other personal
property belonging to Tenant, and for the unamortized cost of leasehold
improvements to the extent same were installed at Tenant's expense (and not
with the proceeds of the Construction Allowance), provided, however, that
no such claim shall diminish or adversely affect Landlord's award. In no
event shall Tenant have or assert a claim for the value of any unexpired
term of this Lease. Subject to the foregoing provisions of this
subparagraph (d), Tenant hereby assigns to Landlord any and all of its
right, title and interest in or to any compensation awarded or paid as a
result of any such taking.
(e) Notwithstanding anything to the contrary contained in this
Article 35, if, during the Lease Term, the use or occupancy of any part of
the Building or the Demised Premises shall be taken or appropriated
temporarily for any public or quasi-public use under any governmental law,
ordinance, or regulations, or by right of eminent domain, this Lease shall
be and remain unaffected by such taking or appropriation and Tenant shall
continue to pay in full all Rent payable hereunder by Tenant during the
Lease Term. In the event of any such temporary appropriation or taking,
Tenant shall be entitled to receive that portion of any award which
represents compensation for the loss of use or occupancy of the Demised
Premises during the Lease Term, and Landlord shall be entitled to receive
that portion of any award which represents the cost of restoration and
compensation for the loss of use or occupancy of the Demised Premises after
the end of the Lease Term.
36. Parties. The term "Landlord", as used in this Lease, shall include
-------
Landlord and its assigns and successors. It is hereby covenanted and agreed by
Tenant that should Landlord's interest in the Demised Premises cease to exist
for any reason during the Lease Term, then notwithstanding the happening of such
event, this Lease nevertheless shall remain in full force and effect, and Tenant
hereby agrees to attorn to the then owner of the Demised Premises. The term
"Tenant" shall include Tenant and its heirs, legal representatives and
successors, and shall also include Tenant's assignees and sublessees, if this
Lease shall be validly assigned or the Demised Premises sublet for the balance
of the Lease Term or any renewals or extensions thereof. In addition, Landlord
and Tenant covenant and agree that Landlord's right to transfer or assign
Landlord's interest in and to the Demised Premises, or any part or parts
thereof, shall be unrestricted, and that in the event of any such transfer or
assignment by Landlord which includes the Demised Premises, Landlord's
obligations to Tenant hereunder shall cease and terminate, and Tenant shall look
only and solely to Landlord's assignee or transferee for performance thereof.
37. Liability. Tenant hereby indemnifies Landlord from and agrees to hold
---------
Landlord harmless against, any and all liability, loss, cost, damage or expense,
including, without limitation, court costs and reasonable attorney's fees,
imposed on Landlord by any person whomsoever, by the
26
gross negligence or willful misconduct of Tenant, or any of its employees,
contractors, servants, agents, subtenants, assignees or representatives acting
within the scope of their respective authority. Landlord hereby indemnifies
Tenant from and agrees to hold Tenant harmless against, any and all liability,
loss, cost, damage or expense, including, without limitation, court costs and
reasonable attorney's fees, imposed on Tenant by any person whomsoever, by the
gross negligence or willful misconduct of Landlord, or any of its employees,
contractors, servants, agents, subtenants, assignees or representatives acting
within the scope of their respective authority. The provisions of this Article
37 shall survive any termination of this Lease.
38. Relocation of the Premises. Intentionally Omitted.
-------------------------- ---------------------
39. Force Majeure. In the event of strike, lockout, labor trouble, civil
-------------
commotion, Act of God, or any other cause beyond a party's control (collectively
"force majeure") resulting in the Landlord's inability to supply the services or
perform the other obligations required of Landlord hereunder, this Lease shall
not terminate and Tenant's obligation to pay Rent and all other charges and sums
due and payable by Tenant shall not be affected or excused and Landlord shall
not be considered to be in default under this Lease. If, as a result of force
majeure, Tenant is delayed in performing any of its obligations under this
Lease, other than Tenant's obligation to take possession of the Demised Premises
on or before the Rental Commencement Date and to pay Rent and all other charges
and sums payable by Tenant hereunder, Tenant's performance shall be excused for
a period equal to such delay and Tenant shall not during such period be
considered to be in default under this Lease with respect to the obligation,
performance of which has thus been delayed.
40. Landlord's Liability. Landlord shall have no personal liability with
--------------------
respect to any of the provisions of this Lease. If Landlord is in default with
respect to its obligations under this Lease, Tenant shall look solely to the
equity of Landlord in and to the Building and the Land described in Exhibit "A"
-----------
hereto for satisfaction of Tenant's remedies, if any. It is expressly
understood and agreed that Landlord's liability under the terms of this Lease
shall in no event exceed the amount of its interest in and to said Land and
Building. In no event shall any partner of Landlord nor any joint venturer in
Landlord, nor any officer, director or shareholder of Landlord or any such
partner or joint venturer of Landlord be personally liable with respect to any
of the provisions of this Lease.
41. Landlord's Covenant of Quiet Enjoyment. Provided Tenant performs the
--------------------------------------
terms, conditions and covenants of this Lease, and subject to the terms and
provisions hereof, Landlord covenants and agrees to take all necessary steps to
secure and to maintain for the benefit of Tenant the quiet and peaceful
possession of the Demised Premises, for the Lease Term, without hindrance, claim
or molestation by Landlord or any other person lawfully claiming under Landlord.
42. Security Deposit.
----------------
(a) As security for the faithful performance by Tenant throughout the
Lease Term, and any extensions or renewals thereof, of all the terms and
conditions of this Lease on the part of Tenant to be performed, Tenant has
deposited with Landlord the sum set forth in Article 1(n) above. Such
amount shall be returned to Tenant, without interest, on the day
27
set for the expiration of the Lease Term, or any extension or renewal
thereof, provided Tenant has fully and faithfully observed and performed
all of the terms, covenants, agreements, warranties and conditions hereof
on its part to be observed and performed. Landlord shall have the right to
apply all or any part of said deposit toward the cure of any default of
Tenant. If all or any part of said security deposit is so applied by
Landlord, then Tenant shall immediately pay to Landlord an amount
sufficient to return said security deposit to the balance on deposit with
Landlord prior to said application.
(b) In the event of a sale or transfer of Landlord's interest in the
Demised Premises or the Building or a lease by Landlord of the Building,
Landlord shall have the right to transfer the within described security
deposit to the purchaser or lessee, as the case may be, and Landlord shall
be relieved of all liability to Tenant for the return of such security
deposit. The Tenant shall look solely to the new owner or lessor for the
return of said security deposit. The security deposit shall not be
mortgaged, assigned or encumbered by Tenant. In the event of a permitted
assignment or subletting under this Lease by Tenant, the security deposit
shall be held by Landlord as a deposit made by the permitted assignee or
subtenant and the Landlord shall have no further liability with respect to
the return of said security deposit to the original Tenant.
(c) Landlord shall not be required to keep the security deposit
separate from its general accounts.
43. Hazardous Substances. (a) Tenant hereby covenants and agrees that
--------------------
Tenant shall not cause or permit any Hazardous Substances to be generated,
placed, held, stored, used, located or disposed of at the Project or any part
thereof, except for Hazardous Substances as are commonly and legally used or
stored as a consequence of using the Demised Premises for general office and
administrative purposes, but only so long as the quantities thereof do not pose
a threat to public health or to the environment or would necessitate a "response
action", as that term is defined in CERCLA (as hereinafter defined), and so long
as Tenant strictly complies or causes compliance with all applicable
governmental rules and regulations concerning the use, storage, production,
transportation and disposal of such Hazardous Substances. Promptly upon receipt
of Landlord's request, Tenant shall submit to Landlord true and correct copies
of any reports filed by Tenant with any governmental or quasi-governmental
authority regarding the generation, placement, storage, use, treatment or
disposal of Hazardous Substances on or about the Demised Premises. For purposes
of this Article 43, "Hazardous Substances" shall mean and include those elements
or compounds which are contained in the list of Hazardous Substances adopted by
the United States Environmental Protection Agency (EPA) or in any list of toxic
pollutants designated by Congress or the EPA or which are defined as hazardous,
toxic, pollutant, infectious or radioactive by any other federal, state or local
statute, law, ordinance, code, rule, regulation, order or decree regulating,
relating to or imposing liability (including, without limitation, strict
liability) or standards of conduct concerning, any hazardous, toxic or dangerous
waste, substance or material, as now or at any time hereinafter in effect
(collectively "Environmental Laws"). Tenant hereby agrees to indemnify Landlord
and hold Landlord harmless from and against any and all losses, liabilities,
including strict liability, damages, injuries, expenses, including reasonable
attorneys' fees, costs of settlement or judgment and claims of any and every
kind whatsoever paid, incurred or suffered by,
28
or asserted against, Landlord by any person, entity or governmental agency for,
with respect to, or as a direct or indirect result of, the presence in, or the
escape, leakage, spillage, discharge, emission or release from, the Demised
Premises of any Hazardous Substances (including, without limitation, any losses,
liabilities, including strict liability, damages, injuries, expenses, including
reasonable attorneys' fees, costs of any settlement or judgment or claims
asserted or arising under the Comprehensive Environmental Response, Compensation
and Liability Act ["CERCLA"], any so-called federal, state or local "Superfund"
or "Superlien" laws or any other Environmental Law); provided, however, that the
foregoing indemnity is limited to matters arising solely from Tenant's violation
of the covenant contained in this Article. The obligations of Tenant under this
Article shall survive any expiration or termination of this Lease.
(b) To the best of Landlord's knowledge and belief, but without any
independent investigation or inquiry of any kind or nature whatsoever, there are
no Hazardous Substances in the Demised Premises other than "Permitted Hazardous
Substances", as that term is defined below. Landlord has not been given a notice
of any violation of law arising out of Hazardous Substances in the Building.
Landlord covenants and agrees that if any Hazardous Substances other than
Permitted Hazardous Substances are found in the Project in such amounts and
locations as would require Landlord to remove such materials as a matter of law,
then Landlord shall remove or cause to be removed such Hazardous Substances.
Such removal shall be accomplished in a manner that does not cause an
unreasonable disruption to Tenant's operations in the Demised Premises. The cost
of such removal shall not be an Operating Expense to Tenant, unless the
substance in question became a Hazardous Substance as a result of or in
connection with a law which was passed after the date of this Lease.
(c) The term "Permitted Hazardous Substances" shall mean such Hazardous
Substances as are commonly and legally used or stored as a consequence of using,
maintaining or operating the Project, but only so long as the quantities thereof
do not pose a threat to public health or to the environment or would necessitate
a "response action" as that term is defined in CERCLA, and so long as Landlord
strictly complies or causes compliance with all applicable governmental rules
and regulations concerning the use, storage, production, transportation and
disposal of such Hazardous Substances.
44. Submission of Lease. The submission of this Lease for examination
-------------------
does not constitute an offer to lease and this Lease shall be effective only
upon execution hereof by Landlord and Tenant.
45. Severability. If any clause or provision of this Lease is illegal,
------------
invalid or unenforceable under present or future laws, the remainder of this
Lease shall not be affected thereby, and in lieu of each clause or provision of
this Lease which is illegal, invalid or unenforceable, there shall be added as a
part of this Lease a clause or provision as nearly identical to the said clause
or provision as may be legal, valid and enforceable.
46. Entire Agreement. This Lease contains the entire agreement of the
----------------
parties and no representations, inducements, promises or agreements, oral or
otherwise, between the parties not embodied herein shall be of any force or
effect. No failure of Landlord to exercise any power given
29
Landlord hereunder, or to insist upon strict compliance by Tenant with any
obligation of Tenant hereunder, and no custom or practice of the parties at
variance with the terms hereof, shall constitute a waiver of Landlord's right to
demand exact compliance with the terms hereof. This Lease may not be altered,
waived, amended or extended except by an instrument in writing signed by
Landlord and Tenant. This Lease is not in recordable form, and Tenant agrees not
to record or cause to be recorded this Lease or any short form or memorandum
thereof.
47. Headings. The use of headings herein is solely for the convenience of
--------
indexing the various paragraphs hereof and shall in no event be considered in
construing or interpreting any provision of this Lease.
48. Broker. CPI HAS REPRESENTED LANDLORD IN THIS TRANSACTION, AND CB
------
COMMERCIAL REAL ESTATE GROUP HAS REPRESENTED TENANT IN THIS TRANSACTION.
BROKER(S) (AS DEFINED IN ARTICLE 1[O]) IS (ARE) ENTITLED TO A LEASING COMMISSION
FROM LANDLORD BY VIRTUE OF THIS LEASE, WHICH LEASING COMMISSION SHALL BE PAID BY
LANDLORD TO BROKER(S) IN ACCORDANCE WITH THE TERMS OF A SEPARATE AGREEMENT
BETWEEN LANDLORD AND BROKER(S). Tenant hereby authorizes Broker(s) and Landlord
to identify Tenant as a tenant of the Building and to state the amount of space
leased by Tenant in advertisements and promotional materials relating to the
Building. Tenant represents and warrants to Landlord that (except with respect
to any Broker[s] identified in Article 1[o] hereinabove) no broker, agent,
commission salesperson, or other person has represented Tenant in the
negotiations for and procurement of this Lease and of the Demised Premises and
that (except with respect to any Broker[s] identified in Article 1[o]
hereinabove) no commissions, fees, or compensation of any kind are due and
payable in connection herewith to any broker, agent, commission salesperson, or
other person as a result of any act or agreement of Tenant. Tenant agrees to
indemnify and hold Landlord harmless from all loss, liability, damage, claim,
judgment, cost or expense (including reasonable attorneys' fees and court costs)
suffered or incurred by Landlord as a result of a breach by Tenant of the
representation and warranty contained in the immediately preceding sentence or
as a result of Tenant's failure to pay commissions, fees, or compensation due to
any broker who represented Tenant, whether or not disclosed, or as a result of
any claim for any fee, commission or similar compensation with respect to this
Lease made by any broker, agent or finder (other than the Broker[s] identified
in Article 1[o] hereinabove) claiming to have dealt with Tenant, whether or not
such claim is meritorious. Tenant shall cause any agent or broker representing
Tenant to execute a lien waiver to and for the benefit of Landlord, waiving any
and all lien rights with respect to the Building and Land which such agent or
broker has or might have under Georgia law.
49. Governing Law. The laws of the State of Georgia shall govern the
-------------
validity, performance and enforcement of this Lease.
50. Special Stipulations. The special stipulations attached hereto as
--------------------
Exhibit "G" are hereby incorporated herein by this reference as though fully set
-----------
forth.
51. Authority. If Tenant executes this Lease as a corporation, each of
---------
the persons executing this Lease on behalf of Tenant does hereby personally
represent and warrant that Tenant
30
is a duly incorporated or a duly qualified (if a foreign corporation)
corporation and is fully authorized and qualified to do business in the State in
which the Demised Premises are located, that the corporation has full right and
authority to enter into this Lease, and that each person signing on behalf of
the corporation is an officer of the corporation and is authorized to sign on
behalf of the corporation. If Tenant signs as a partnership, joint venture, or
sole proprietorship or other business entity (each being herein called
"Entity"), each of the persons executing on behalf of Tenant does hereby
covenant and warrant that Tenant is a duly authorized and existing Entity, that
Tenant has full right and authority to enter into this Lease, that all persons
executing this Lease on behalf of the Entity are authorized to do so on behalf
of the Entity, and that such execution is fully binding upon the Entity and its
partners, joint venturers, or principal, as the case may be. Upon the request of
Landlord, Tenant shall deliver to Landlord documentation satisfactory to
Landlord evidencing Tenant's compliance with this Article, and Tenant agrees to
promptly execute all necessary and reasonable applications or documents as
reasonably requested by Landlord, required by the jurisdiction in which the
Demised Premises is located, to permit the issuance of necessary permits and
certificates for Tenant's use and occupancy of the Demised Premises.
52. Financial Statements. Upon Landlord's written request therefor, but
--------------------
not more often than once per year, Tenant shall promptly furnish to Landlord a
financial statement with respect to Tenant for its most recent fiscal year
prepared in accordance with generally accepted accounting principles and
certified to be true and correct by Tenant, which statement Landlord agrees to
keep confidential and not use except in connection with proposed sale or loan
transactions.
53. Joint and Several Liability. If Tenant comprises more than one
---------------------------
person, corporation, partnership or other entity, the liability hereunder of all
such persons, corporations, partnerships or other entities shall be joint and
several.
54. ERISA Compliance. Tenant represents to Landlord that Tenant is not an
----------------
"employee benefit plan", a "plan" or a "governmental plan" as defined below or
an entity whose assets constitute "plan assets" as defined below. The term
"employee benefit plan" means an "employee benefit plan" as defined in Section
3(3) of the Employment Retirement Income Security Act of 1974, as amended
("ERISA"), which is subject to Title I of ERISA. The term "plan" means a "plan"
as defined in Section 4975(e)(i) of the Internal Revenue Code of 1986, as
amended. The term "governmental plan" means a "governmental plan" within the
meaning of Section 3(32) of ERISA. The term "plan assets" means "plan assets"
of one or more plans within the meaning of 2a C.F.R. 2510.3-101.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as
of the day, month and year first above written.
"LANDLORD":
WILDWOOD ASSOCIATES,
a Georgia general partnership
31
By: Cousins Properties Incorporated,
Managing General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Its: S.R.V.P.
--------------------------
(CORPORATE SEAL)
"TENANT":
MANHATTAN ASSOCIATES, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Its: Chief Operating Officer
--------------------------------
Attest:
-------------------------------
Its:
-------------------------------
(CORPORATE SEAL)
32
RULES AND REGULATIONS
1. No sign, picture, advertisement or notice visible from the exterior of the
Demised Premises shall be installed, affixed, inscribed, painted or
otherwise displayed by Tenant on any part of the Demised Premises or the
Building unless the same is first approved by Landlord. Any such sign,
picture, advertisement or notice approved by Landlord shall be painted or
installed for Tenant at Tenant's cost by Landlord or by a party approved by
Landlord. No awnings, curtains, blinds, shades or screens shall be
attached to or hung in, or used in connection with any window or door of
the Demised Premises without the prior consent of the Landlord, including
approval by the Landlord of the quality, type, design, color and manner of
attachment. In the event of any breach of the foregoing, Landlord may
remove the applicable item, and Tenant agrees to pay the cost and expense
of such removal.
2. Tenant agrees that its use of electrical current shall never knowingly
exceed the capacity of existing feeders, risers or wiring installation.
3. The Demised Premises shall not be used for storage of merchandise held for
sale to the general public. Tenant shall not do or permit to be done in or
about the Demised Premises or Building anything which shall increase the
rate of insurance on said Building or obstruct or interfere with the rights
of other lessees of Landlord or annoy them in any way, including, but not
limited to, using any musical instrument, making loud or unseemly noises,
or singing, etc. The Demised Premises shall not be used for sleeping or
lodging. No cooking or related activities shall be done or permitted by
Tenant in the Demised Premises except with permission of Landlord. Tenant
will be permitted to use for its own employees within the Demised Premises,
vending machines, water coolers, a small microwave oven and/or
refrigerator, Underwriters' Laboratory approved equipment for brewing
coffee, tea, hot chocolate and similar beverages, provided that such use is
in accordance with all applicable federal, state, county and city laws,
codes, ordinances, rules and regulations, and provided that such use shall
not result in the emission of odors from the Demised Premises into the
common area of the Building. No part of said Building or Demised Premises
shall be used for gambling, immoral or other unlawful purposes. No
intoxicating beverage shall be sold in said Building or Demised Premises
without prior written consent of the Landlord. No area outside of the
Demised Premises shall be used for storage purposes at any time.
4. No birds or animals of any kind shall be brought into the Building (other
than trained assist dogs required to be used by the visually impaired). No
bicycles, motorcycles or other motorized vehicles shall be brought into the
Building.
5. The sidewalks, entrances, passages, corridors, halls, elevators, and
stairways in the Building shall not be obstructed by Tenant or used for any
purposes other than those for which same were intended as ingress and
egress. No windows, floors or skylights that reflect or admit
33
light into the Building shall be covered or obstructed by Tenant, and no
articles shall be placed on the window ▇▇▇▇▇ of the Building. Toilets, wash
basins and sinks shall not be used for any purpose other than those for
which they were constructed, and no sweeping, rubbish, or other obstructing
or improper substances shall be thrown therein. Any damage resulting to
them, or to heating apparatus, from misuse by Tenant or its employees,
shall be borne by Tenant.
6. Only one key for each office in the Demised Premises will be furnished
Tenant without charge. Landlord may make a reasonable charge for any
additional keys. No additional lock, latch or bolt of any kind shall be
placed upon any door nor shall any changes be made in existing locks
without written consent of Landlord and Tenant shall in each such case
furnish Landlord with a key for any such lock. At the termination of the
Lease, Tenant shall return to Landlord all keys furnished to Tenant by
Landlord, or otherwise procured by Tenant, and in the event of loss of any
keys so furnished, Tenant shall pay to Landlord the cost thereof.
7. Landlord shall have the right to prescribe the weight, position and manner
of installation of heavy articles such as safes, machines and other
equipment brought into the Building. Tenant shall not allow the building
structure within the Demised Premises, nor shall Tenant cause the elevators
of the Building, to be loaded beyond rated capacities. No safes,
furniture, boxes, large parcels or other kind of freight shall be taken to
or from the Demised Premises or allowed in any elevator, hall or corridor
except at times allowed by Landlord. Tenant shall make prior arrangements
with Landlord for use of freight elevator for the purpose of transporting
such articles and such articles may be taken in or out of said Building
only between or during such hours as may be arranged with and designated by
Landlord. The persons employed to move the same must be approved by
Landlord. Landlord reserves the right to inspect and, where deemed
appropriate by Landlord, to open all freight coming into the Building and
to exclude from entering the Building all freight which is in violation of
any of these Rules and Regulations and all freight as to which inspection
is not permitted. No hand trucks shall be used in passenger elevators.
All hand trucks used by Tenant or its service providers for the delivery or
receipt of any freight shall be equipped with rubber tires.
8. Tenant shall not cause or permit any gases, liquids or odors to be produced
upon or permeate from the Demised Premises, and no flammable, combustible
or explosive fluid, chemical or substance shall be brought into the
Building. Smoking shall not be permitted in any common areas of the
Building or the Project or in any premises within the Building; provided,
however, smoking shall be permitted in any premises of the Building where
the tenant of such premises makes arrangements with Landlord for the
installation at such tenant's cost of filtration or other equipment which
in Landlord's judgment is adequate to prevent smoke from leaving such
premises and entering the common areas or other premises of the Building.
Until such approved equipment is installed, smoking shall not be permitted
in a tenant's premises. If Tenant shall assert that the air quality in the
Demised Premises is unsatisfactory or if Tenant shall request any air
quality testing within the
34
Demised Premises, Landlord may elect to cause its consultant to test the
air quality within the Demised Premises and to issue a report regarding
same. If the report from such tests indicates that the air quality within
the Demised Premises is comparable to the air quality of other first-class
office buildings in the market area of the Building, or if the report from
such tests indicates that the air quality does not meet such standard as a
result of the activities caused or permitted by Tenant in the Demised
Premises, Tenant shall reimburse Landlord for all costs of the applicable
tests and report. Additionally, in the event Tenant shall cause or permit
any activity which shall adversely affect the air quality in the Demised
Premises, in the common area of the Building or in any premises within the
Building, Tenant shall be responsible for all costs of remedying same.
9. Every person, including Tenant, its employees and visitors, entering and
leaving the Building may be questioned by a watchman as to that person's
business therein and may be required to sign such person's name on a form
provided by Landlord for registering such person; provided that, except for
emergencies or other extraordinary circumstances, such procedures shall not
be required between the hours of 7:00 a.m. and 7:00 p.m., on all days
except Saturdays, Sundays and Holidays. Landlord may also implement a card
access security system to control access to the Building during such other
times. Landlord shall not be liable for excluding any person from the
Building during such other times, or for admission of any person to the
Building at any time, or for damages or loss for theft resulting therefrom
to any person, including Tenant.
10. Unless agreed to in writing by Landlord, Tenant shall not employ any person
other than Landlord's contractors for the purpose of cleaning and taking
care of the Demised Premises. The Building's cleaning specifications are
as set forth in Exhibit "I", by this reference incorporated herein.
-----------
Cleaning service will not be furnished on nights when rooms are occupied
such that the cleaning service is precluded from entry, unless, by
agreement in writing, service is extended to a later hour for specifically
designated rooms. Landlord shall not be responsible for any loss, theft,
mysterious disappearance of or damage to, any property, however occurring.
Only persons authorized by the Landlord may furnish ice, drinking water,
towels, and other similar services within the Building and only at hours
and under regulations fixed by Landlord.
11. No connection shall be made to the electric wires or gas or electric
fixtures, without the consent in writing on each occasion of Landlord. All
glass, locks and trimmings in or upon the doors and windows of the Demised
Premises shall be kept whole and in good repair. Tenant shall not injure,
overload or deface the Building, the woodwork or the walls of the Demised
Premises, nor permit upon the Demised Premises any noisome, noxious, noisy
or offensive business.
12. If Tenant requires wiring for a ▇▇▇▇ or buzzer system, such wiring shall be
done by the electrician of the Landlord only, and no outside wiring men
shall be allowed to do work of this kind unless by the written permission
of Landlord or its representatives, except as provided elsewhere herein.
If telegraph or telephonic service is desired, the wiring for same
35
shall be approved by Landlord, and no boring or cutting for wiring shall be
done unless approved by Landlord or its representatives, as stated. The
electric current shall not be used for heating unless written permission to
do so shall first have been obtained from Landlord or its representatives
in writing, and at an agreed cost to Tenant.
13. Tenant and its employees and invitees shall observe and obey all parking
and traffic regulations as imposed by Landlord. All vehicles shall be
parked only in areas designated therefor by Landlord.
14. Canvassing, peddling, soliciting and distribution of handbills or any other
written materials in the Building are prohibited, and Tenant shall
cooperate to prevent the same.
15. Tenant agrees to participate in the waste recycling programs implemented by
Landlord for the Building, including any programs and procedures for
recycling writing paper, computer paper, shipping paper, boxes, newspapers
and magazines and aluminum cans. If Landlord elects to provide collection
receptacles for recyclable paper and/or recyclable aluminum cans in the
Demised Premises, Tenant shall designate an appropriate place within the
Demised Premises for placement thereof, and Tenant shall request its
employees to place their recyclable papers and/or cans into the applicable
such receptacles on a daily basis.
16. Any special work or services requested by Tenant to be provided by Landlord
shall be provided by Landlord only upon request received at the Project
management office. Building personnel shall not perform any work or
provide any services outside of their regular duties unless special
instructions have been issued from Landlord or its managing agent.
17. Landlord shall have the right to change the name of the Building and to
change the street address of the Building, provided that in the case of a
change in the street address, Landlord shall give Tenant not less than 180
days' prior notice of the change, unless the change is required by
governmental authority.
18. The directory of the Building will be provided for the display of the name
and location of the tenants. Any additional name which Tenant shall desire
to place upon said directory must first be approved by Landlord, and if so
approved, a reasonable charge will be made therefor.
19. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular lessee, but no such waiver by Landlord shall be
construed as a waiver of such Rules and Regulations in favor of any other
lessee, nor prevent Landlord from thereafter enforcing any such Rules and
Regulations against any or all of the other lessees of the Building.
36
20. These Rules and Regulations are supplemental to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of any lease of any premises in the Building.
21. Landlord reserves the right to make such other and reasonable Rules and
Regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Building, the Land and Wildwood Office
Park, and for the preservation of good order therein, so long as such
modifications do not materially, adversely impact upon Tenant's use of or
access to the Demised Premises.
37
EXHIBIT "A"
-----------
Legal Description of Land
The following is a description of a tract of land lying and being in Land Lots
941, 985 and ▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ County, Georgia, and being
more particularly described as follows:
To find the TRUE POINT OF BEGINNING, begin at the corner common to Land Lots
941, 940, 987, and 986 of the 17th District, 2nd Section, ▇▇▇▇ County, Georgia,
and running thence along the north land lot line of said Land Lot 941, (being
the south land lot line of said Land Lot 940) North 89 degrees 36 minutes West,
a distance of 527.94 feet to a point on said common land lot line; thence
leaving said common land lot line dividing said Land Lots 941 and 940 and
running South 11 degrees 36 minutes East, a distance of 730.0 feet to a point
located on the northwesterly right-of-way line of ▇▇▇▇▇ ▇▇▇▇ Road; thence South
07 degrees 01 minutes 30 seconds East, a distance of 119.65 feet to a point on
the southwesterly right-of-way line of said ▇▇▇▇▇ ▇▇▇▇ Road; thence, continuing
along said right-of-way South 88 degrees 33 minutes 25 seconds East, a distance
of 86.59 feet to a point; thence along an arc of curve to the left (which has a
radius of 525.00 feet and a chord distance of 305.17 feet along a chord bearing
of North 74 degrees 32 minutes 48 seconds East), an arc distance of 309.64 feet
to a point, said point being THE TRUE POINT OF BEGINNING. Thence, continuing
along said ▇▇▇▇▇ ▇▇▇▇ Road right-of-way (having a variable right-of-way width)
along an arc of curve to the left (which has a radius of 525.00 feet and a chord
distance of 218.51 feet along a chord bearing of North 45 degrees 38 minutes 22
seconds East), an arc distance of 220.11 feet to a point; thence, North 33
degrees 37 minutes 44 seconds East, a distance of 152.45 feet to a point;
thence, North 50 degrees 57 minutes East, a distance of 134.42 feet to a point;
thence, leaving said right-of-way of ▇▇▇▇▇ ▇▇▇▇ Road South 62 degrees 57 minutes
East, a distance of 735.00 feet to a point; thence, South 44 degrees 03 minutes
West, a distance of 295.00 feet to a point; thence, South 09 degrees 03 minutes
West, a distance of 395.00 feet to a point ;thence, South 53 degrees 57 minutes
East, a distance of 210.00 feet to a point; thence, South 42 degrees 28 minutes
East, a distance of 100.00 feet to a point; thence, South 03 degrees 11 minutes
06 seconds West, a distance of 101.72 feet to a point on the north right-of-way
of Windy Ridge Parkway (having a variable right-of-way width); thence,
continuing along said right-of-way along an arc of curve to the right (which
curve has a radius of 301.00 feet and a chord distance of 92.15 feet along a
chord bearing of North 70 degrees 52 minutes 19 seconds West) an arc distance of
92.52 feet to a point; thence, North 62 degrees 04 minutes West, a distance of
92.52 feet to a point; thence, North 62 degrees 04 minutes West, a distance of
74.71 feet to a point on the intersection of said right-of-way with the
northeast right-of-way of Windy Ridge Parkway extension (having a varying right-
of-way width); thence, continuing along said right-of-way along an arc of curve
to the right (which has a radius
38
of 200.00 feet and a chord distance of 158.69 feet along a chord bearing of
North 38 degrees 41 minutes 37 seconds West), an arc distance of 163.17 feet to
a point; thence, North 15 degrees 19 minutes 15 seconds West, a distance of
67.75 feet to a point; thence, along an arc of curve to the left (which has a
radius of 290.00 feet and a chord distance of 266.21 feet along a chord bearing
of North 42 degrees 38 minutes 33 seconds West), an arc distance of 276.58 feet
to a point; thence North 69 degrees 57 minutes 51 seconds West, a distance of
261.61 feet to a point; thence, along an arc of curve to the right (which has a
radius of 425.00 feet and a chord distance of 331.65 feet along a chord bearing
of North 46 degrees 59 minutes 56 seconds West), an arc distance of 340.70 feet
to a point; thence North 24 degrees 02 minutes West, a distance of 83.26 feet to
a point; thence, North 16 degrees 48 minutes 29 seconds East, a distance of
30.08 feet to a point on the southwesterly right-of-way of ▇▇▇▇▇ ▇▇▇▇ Road, and
THE TRUE POINT OF BEGINNING.
Said tract containing 536.631 square feet or 12.319 acres more or less.
39
EXHIBIT "B"
-----------
Floor Plan
40
EXHIBIT "C"
-----------
SUPPLEMENTAL NOTICE
Re: Lease dated as of September 24, 1997, by and between WILDWOOD
ASSOCIATES, as Landlord, and MANHATTAN ASSOCIATES, LLC, as Tenant.
Dear Sirs:
Pursuant to Article 3 of the captioned Lease, please be advised as follows:
1. The Rental Commencement Date is the _______ day of _________________,
199__, and the expiration date of the Lease Term is the _______ day of
________________, _____, subject however to the terms and provisions of the
Lease.
2. Terms denoted herein by initial capitalization shall have the meanings
ascribed thereto in the Lease.
"LANDLORD":
WILDWOOD ASSOCIATES,
a Georgia general partnership
By: Cousins Properties Incorporated,
Managing General Partner
By:
---------------------------------
Its:
--------------------------------
(CORPORATE SEAL)
41
EXHIBIT "D"
-----------
LANDLORD'S CONSTRUCTION
1. Tenant, at Tenant's sole cost and expense, shall cause to be prepared by
Tenant's architect and/or designer the following:
(a) Based upon Tenant's requirements, a schematic partition layout
sufficient in detail for the Tenant's approval of the location of
partitions.
(b) One (1) modification of the schematic partition plan noted above.
2. Tenant, at Tenant's sole cost and expense, shall cause to be prepared by
Tenant's architect and/or designer and/or engineer the following:
(a) Any additional modification requested by Tenant to the schematic
partition plan described in Paragraph 1 above.
(b) Complete, finished, detailed architectural drawings and specifications
for Tenant's partition layout, reflected ceiling and other
installations for the work to be done under Paragraph 4 hereof, which
shall be prepared by Tenant's designer or architect.
(c) Complete mechanical and electrical plans and specifications where
necessary for installation of air conditioning system and ductwork,
heating, electrical, plumbing and other mechanical plans for the work
to be done under Paragraph 4 hereof, which shall be prepared by
Tenant's architect and/or designer.
(d) Any subsequent modifications to the drawings and specifications
requested by Tenant.
All such plans and specifications are expressly subject to Landlord's
approval and shall comply with all applicable laws, rules and regulations.
Tenant covenants and agrees to cause said plans and specifications to be
delivered to Landlord on or before September 30, 1997, and, upon approval
by Landlord, such approval of Landlord not to be unreasonably withheld or
delayed, Landlord will cause said plans to be filed at Tenant's sole cost
and expense with the appropriate governmental agencies in such form
(building notice, alteration or other form) as Landlord may direct.
Landlord hereby consents to the preliminary floor plan of the Demised
Premises of ▇▇▇▇▇▇ Design Associates, Inc., dated August 8th, 1997, job
#97027, which reflects a preliminary lay-out of the Demised Premises.
42
3. Landlord will deliver Demised Premises in its "as is" condition; provided,
however, that Landlord shall install the demising wall necessary to convert
the floor to a multi-tenant floor (with the exception of the sheetrock in
the Demised Premises), at no additional cost to Tenant. Landlord will also
build out the multi-tenant corridor on such floor in a manner in compliance
with all applicable codes, using Building standard materials, and shall
install magnetic door-stops on the common area doors on the 7th floor, to
work in connection with the Building's fire control system. Tenant may
reuse any leasehold improvements to complete its construction work, and
included within the Demised Premises is the list of items set forth on
Exhibit "D-1", by this reference incorporated herein (which items shall in
-------------
all events remain with the Demised Premises at the end of the Term). The
existing air conditioning system shall be provided in its current, "as is"
condition, including diffusers and returns, capable of maintaining 76
degrees F or less (summer) when outside temperature is 92 degrees F or less
and 70 degrees F or more when outside temperature is 17 degrees F or more
(winter). Air conditioning design basis is 3.0 ▇▇▇▇▇ per rentable square
foot lighting and power load, based upon an occupancy rate of seven (7)
persons per 1,000 rentable square feet (per ASRAE Standard 62-1989) and
venetian blinds drawn with slats tilted against the sun at not less than 45
degrees from horizontal.
4. Tenant shall perform all tenant fit-up and finish work in the Demised
Premises ("Tenant's Work"), and Landlord shall have no responsibility therefor.
In connection therewith:
1. Tenant's Work shall be performed in a first-class manner, using new
and first-class, quality materials. Tenant's Work shall be
constructed and installed in accordance with all applicable laws,
ordinances, codes and rules and regulations of governmental
authorities. Tenant shall promptly correct any of Tenant's Work which
is not in conformance therewith.
2. The entry by Tenant and/or its contract parties into the Demised
Premises for the performance of Tenant's Work shall be subject to all
of the terms and conditions of the Lease except the payment of Rent.
If Landlord allows Tenant and/or its contract parties to enter the
Demised Premises and to commence the performance of Tenant's Work,
such entry by Tenant shall be at Tenant's sole risk.
3. Tenant's Work shall be coordinated and conducted to maintain
harmonious labor relations and not (a) to interfere unreasonably with
or to delay the completion of any work being performed by any other
tenant in the Building; or (b) to interfere with or disrupt the use
and peaceful enjoyment of other tenants in the Building.
4. Tenant and Tenant's contract parties shall perform their work,
including any storage for construction purposes, within the Demised
Premises only. Tenant shall be responsible for removal, as needed,
from the Demised Premises and the Building of all trash, rubbish, and
surplus materials resulting from any work being performed in the
Demised Premises. Tenant shall exercise extreme care and diligence in
removing such trash, rubbish, or surplus materials from the Demised
43
Premises to avoid littering, marring, or damaging any portion of the
Building. If any such trash, rubbish, or surplus materials are not
promptly removed from the Building in accordance with the provisions
hereof or if any portion of the Building is littered, marred, or
damaged, Landlord may cause same to be removed or repaired, as the
case may be, at Tenant's cost and expense. If Landlord incurs any
costs or expenses in performing the above, Tenant shall pay Landlord
the amount of any such cost and expenses within thirty (30) days after
demand therefor. Tenant or its representative(s) may enter upon the
Demised Premises during construction of the Tenant's Work for purposes
of conducting all such activities as are necessary, appropriate or
desirable with respect to completing Tenant's Work without being
deemed thereby to have taken possession.
5. Tenant shall provide or cause to be provided with respect to all such
work to be performed by Tenant with respect to the Demised Premises
the following types of insurance:
(a) At all times during the period between the commencement of such
work and the date such work is completed and Tenant commences
occupancy of the Demised Premises, Tenant shall maintain or cause
to be maintained, casualty insurance in "Builders Risk" form,
covering Landlord and Landlord's agents, architects, and Tenant
and Tenant's contractors and subcontractors, as their interest
may appear, against all perils normally insured under an "all
risk" builder's risk policy, including earth movement and flood
(and containing such exclusions as would also normally be
excluded from such a policy) covering the work to be performed by
Tenant and all materials at the work-site to be incorporated into
such work. Said Builder's Risk insurance shall contain an
express waiver of any right of subrogation by the insurer against
Landlord, its agents, employees and contractors;
(b) Liability insurance as required by the Lease; and
(c) Statutory Workers' Compensation as required by the State of
Georgia or the local municipality having jurisdiction.
All insurance policies procured and maintained pursuant to this
Paragraph shall name Landlord as additional insured, shall be carried with
companies licensed to do business in the State of Georgia reasonably
satisfactory to Landlord and shall be non-cancelable except after twenty
(20) days written notice to Landlord. Such policies or duly executed
certificates of insurance with respect thereto shall be delivered to
Landlord before the commencement of the work, and renewals thereof as
required shall be delivered to Landlord at least thirty (30) days prior to
the expiration of each respective policy term.
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6. Tenant shall indemnify and hold harmless Landlord, and any of Landlord's
contractors, agents and employees from and against any and all losses,
damages, costs (including costs of suits and attorneys' fees), liabilities,
or causes of action arising out of or relating to the performance of the
work to be performed by Tenant with respect to the Demised Premises,
including but not limited to mechanics', materialmen's or other liens or
claims (and all costs or expenses associated therewith) asserted, filed or
arising out of any such work, subject to the limitation of Tenant's
liability under the Lease. All materialmen, contractors, artisans,
mechanics, laborers and other parties hereafter contracting with Tenant or
Tenant's contractor for the furnishing of any labor, services, materials,
suppliers or equipment with respect to the work are hereby charged with
notice that they must look solely to Tenant for payment of same. Without
limiting the generality of the foregoing, Tenant shall repair or cause to
be repaired at its expense all damage caused by Tenant's contractor, its
subcontractors or their employees acting within the scope of their
employment or agency. Tenant shall promptly pay to Landlord, upon notice
thereof from Landlord, any costs incurred by Landlord to repair any such
damage caused by Tenant's contractor or any costs incurred by Landlord in
requiring the Tenant's contractor's compliance with the Rules and
Regulations. In connection with any and all claims against Landlord or any
of its agents, contractors or employees by any employee of Tenant's
contractor, any subcontractor, anyone directly or indirectly employed by
any of them, or anyone for whose acts Tenant's contractor or any
subcontractor may be liable, the indemnification obligations of Tenant's
contractor and any subcontractor under the agreements hereinabove referred
to in this subparagraph shall not he limited in any way by any limitation
on the amount or type of damages, compensation or benefits payable by or
for Tenant's contractor or subcontractor under worker's compensation acts,
disability benefit acts, or other employee benefit acts.
7. At the request of Landlord, Tenant shall, at Tenant's sole cost and
expense, provide evidence in form and content approved by Landlord, which
approval shall not be unreasonably withheld or delayed (and if not
disapproved within ten (10) days of request, shall be deemed approved)
(including, but not limited to, certificates and affidavits of Tenant,
Tenant's contractor or such other persons as Landlord may reasonably
require) showing:
(a) That all outstanding claims for labor, materials and fixtures
have been paid;
(b) That there are no liens outstanding against the Demised Premises
or the Project arising out of or in connection with Tenant's
work; and
(c) That all construction prior to the date thereof has been done
substantially in accordance with Tenant's space plans, consented
to by Landlord.
8. Landlord will provide the Construction Allowance to Tenant within thirty
(30) days after Tenant provides Landlord reasonable evidence of the
expenditure of such funds in
45
connection with the improvement to (or equipment, furniture or fixtures
within) the Demised Premises, and the material required under Article 7 of
this Exhibit "D" has been furnished to Landlord in connection therewith.
-----------
Tenant agrees to pay promptly upon invoice therefor the cost of the work
described in Paragraphs 1, 2 and 4 hereof, less the amount of the
Construction Allowance, if any, stated in Article 1(m) of this Lease.
Tenant may use the Construction Allowance on any improvements to or
equipment, furniture or fixtures within the Demised Premises. Tenant agrees
that costs not covered by the Construction Allowance shall be paid directly
by Tenant.
9. Tenant shall not make any alterations, additions or improvements in or to
the Demised Premises, except as set forth herein, without Landlord's prior
written consent, which consent shall not be unreasonably withheld or
delayed. Except for construction as provided in Paragraphs 1, 2 and 4
hereof, the Demised Premises are delivered to Tenant "as is" without any
warranty or representation whatsoever. Any alterations, additions or
improvements requested by Tenant and approved by Landlord shall be
performed (i) by Landlord's contractor or another contractor approved by
Landlord, (ii) in a good and workmanlike manner, and (iii) in accordance
with all applicable codes, laws, ordinances, rules and regulations of
governmental authorities having jurisdiction over the Demised Premises.
10. Any approval by Landlord of or consent by Landlord to any plans,
specifications or other items to be submitted to and/or reviewed by
Landlord pursuant to this Lease shall be deemed to be strictly limited to
an acknowledgment of approval or consent by Landlord thereto and, whether
or not the work is performed by Landlord or by Tenant's contractor, such
approval or consent shall not constitute the assumption by Landlord of any
responsibility for the accuracy, sufficiency or feasibility of any plans,
specifications or other such items and shall not imply any acknowledgment,
representation or warranty by Landlord that the design is safe, feasible,
structurally sound or will comply with any legal or governmental
requirements, and Tenant shall be responsible for all of the same.
46
EXHIBIT "E"
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BUILDING STANDARD SERVICES
Landlord shall furnish the following services to Tenant during the Lease
Term (the "Building Standard Services"):
(a) Common-use restrooms (with cold and tempered domestic water) and
toilets at locations provided for general use and as reasonably deemed by
Landlord to be in keeping with the first-class standards of the Building.
(b) Subject to curtailment as required by governmental laws, rules or
mandatory regulations and subject to the design conditions set forth in
paragraph 3(a) of Exhibit "D" attached hereto, central heat and air conditioning
-----------
in season, at such temperatures and in such amounts as are reasonably deemed by
Landlord to be in keeping with the first-class standards of the Building. Such
heating and air conditioning shall be furnished between 8:00 a.m. and 6:00 p.m.
on weekdays (from Monday through Friday, inclusive) and between 8:00 a.m. and
1:00 p.m. on Saturdays, all exclusive of Holidays, as defined below (the
"Building Operating Hours"). Such heating and air conditioning service shall be
furnished after such Building Operating Hours at an initial cost of Thirty-Five
and No/100 Dollars ($35.00) per floor per hour, as such amount may be increased
from time to time by Landlord based upon increases in the costs of electricity
and otherwise providing such service. Such services shall be available to Tenant
provided that it gives Landlord reasonable prior oral notification of its need
for such services.
(c) Electric lighting service for all public areas and special service
areas of the Building in the manner and to the extent reasonably deemed by
Landlord to be in keeping with the first-class standards of the Building.
(d) Janitor service shall be provided five (5) days per week, exclusive of
Holidays (as hereinbelow defined), in a manner that Landlord reasonably deems to
be consistent with the first-class standards of the Building.
(e) Security services for the Building comparable as to coverage, control
and responsiveness (but not necessarily as to means for accomplishing same) to
other similarly sized first-class, multi-tenant office buildings in suburban
Atlanta, Georgia; provided, however, Landlord shall have no responsibility to
prevent, and shall not be liable to Tenant for, any liability or loss to Tenant,
its agents, employees and visitors arising out of losses due to theft, burglary,
or damage or injury to persons or property caused by persons gaining access to
the Building and/or the Demised Premises, and Tenant hereby releases Landlord
from all liability for such losses, damages or injury, except as set forth in
Article 37 of the Lease.
(f) Sufficient electrical capacity at the building core electrical panels
to operate (i) incandescent lights, typewriters, personal computers, calculating
machines, photocopying
47
machines and other machines of the same low voltage electrical consumption
(120/208 volts), provided that the total rated electrical design load for said
lighting and machines of low electrical voltage shall not exceed 2.0 ▇▇▇▇▇ per
square foot of rentable area; and (ii) lighting (277/480 volts), provided that
the total rated electrical design load for said lighting shall not exceed 1.54
▇▇▇▇▇ per square foot of rentable area (each such rated electrical design load
to be hereinafter referred to as the "Building Standard Rated Electrical Design
Load").
Should Tenant's total rated electrical design load exceed the Building
Standard Rated Electrical Design Load for either low or high voltage electrical
consumption, or if Tenant's electrical design requires low voltage or high
voltage circuits in excess of Tenant's share of the Building Standard circuits,
Landlord will (at Tenant's expense) install such additional circuits and
associated high voltage panels and/or additional low voltage panels with
associated transformers (which additional circuits, panels and transformers
shall be hereinafter referred to as the "Additional Electrical Equipment"). If
the Additional Electrical Equipment is installed because Tenant's low or high
voltage rated electrical design load exceeds the applicable Building Standard
Rated Electrical Design Load, then a meter shall also be added (at Tenant's
expense) to measure the electricity used through the Additional Electrical
Equipment.
The design and installation of any Additional Electrical Equipment (or any
related meter) required by Tenant shall be subject to the prior approval of
Landlord (which approval shall not be unreasonably withheld). All expenses
incurred by Landlord in connection with the review and approval of any
Additional Electrical Equipment shall also be reimbursed to Landlord by Tenant.
Tenant shall also pay on demand the actual metered cost of electricity consumed
through the Additional Electrical Equipment (if applicable), plus any actual
accounting expenses incurred by Landlord in connection with the metering
thereof.
Tenant agrees that if Tenant uses data processing or other electronic
equipment which incorporates the use of switched mode power supplies or any
other type device causing harmonic distortion on Landlord's power distribution
system, Tenant shall install filters at Tenant's cost to eliminate the harmonic
distortion. In addition, any damage to Landlord's equipment resulting from
harmonic distortion caused by Tenant's electronic equipment shall be repaired at
Tenant's expense. Total harmonic distortion shall not exceed thirteen percent
(13%).
If any of Tenant's electrical equipment requires conditioned air in excess
of Building Standard air conditioning, the same shall be installed by Landlord
(on Tenant's behalf), and Tenant shall pay all design, installation, metering
and operating costs relating thereto.
If Tenant requires that certain areas within Tenant's Demised Premises must
operate in excess of the normal Building Operating Hours (as hereinabove
defined), the electrical service to such areas shall be separately circuited and
metered (at Tenant's expense) such that Tenant shall be billed the costs
associated with electricity consumed during hours other than Building Operating
Hours.
48
(g) All Building Standard fluorescent bulb replacement in all areas and all
incandescent bulb replacement in public areas, toilet and restroom areas, and
stairwells.
(h) Non-exclusive multiple cab passenger service to the floor(s) of the
Demised Premises during Building Operating Hours (as hereinabove defined) and at
least one (1) cab passenger service to the floor(s) on which the Demised
Premises are located twenty-four (24) hours per day and non-exclusive freight
elevator service during Building Operating Hours (all subject to temporary
cessation for ordinary repair and maintenance and during times when life safety
systems override normal building operating systems) with such freight elevator
service available at other times upon reasonable prior notice and the payment by
Tenant to Landlord of any additional expense actually incurred by Landlord in
connection therewith.
To the extent the services described above require electricity and water
supplied by public utilities, Landlord's covenants thereunder shall only impose
on Landlord the obligation to use its reasonable efforts to cause the applicable
public utilities to furnish same. Except for deliberate and willful acts of
Landlord, failure by Landlord to furnish the services described herein, or any
cessation thereof, shall not render Landlord liable for damages to either person
or property, nor be construed as an eviction of Tenant, nor work an abatement of
rent, nor relieve Tenant from fulfillment of any covenant or agreement hereof.
In addition to the foregoing, should any of the equipment or machinery, for any
cause, fail to operate, or function properly, Tenant shall have no claim for
rebate of rent or damages on account of an interruption in service occasioned
thereby or resulting therefrom; provided, however, Landlord agrees to use
reasonable efforts to promptly repair said equipment or machinery and to restore
said services during normal business hours.
The following dates shall constitute "Holidays" as that term is used in
this Lease: New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas, and any other holiday generally recognized as such
by landlords of office space in the metropolitan Atlanta office market, as
determined by Landlord in good faith. If in the case of any specific holiday
mentioned in the preceding sentence, a different day shall be observed than the
respective day mentioned, then that day which constitutes the day observed by
national banks in Atlanta, Georgia on account of said holiday shall constitute
the Holiday under this Lease.
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EXHIBIT "F"
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GUARANTY
50
EXHIBIT "G"
-----------
Special Stipulations
1. Renewal Option.
--------------
(a) Provided this Lease is then in full force and effect without any
existing uncured default of Tenant hereunder of which Tenant has
received notice in accordance with this Lease, Landlord hereby grants
unto Tenant the right and option to extend and renew the Lease Term
for one (1) period of either three (3) or five (5) years, at Tenant's
election, with such renewal term to commence on the day following the
expiration date of the initial Lease Term. In order to exercise such
renewal option, Tenant shall notify Landlord in writing no later than
March 31, 2002, of Tenant's desire to so extend and renew the Lease
Term, and the period of time for which Tenant desires to renew the
Lease Term. If Tenant exercises its option to renew this Lease for
five (5) years, the Base Rental Rate for the first year of the five
(5) year period shall be at Nineteen and No/100 Dollars ($19.00) per
annum per square foot of Rentable Floor Area within the Demised
Premises. If Tenant exercises its opinion to renew this Lease for
three (3) years, the Base Rental Rate for the first year of the three
(3) year period shall be at Twenty and No/100 Dollars ($20.00) per
annum per square foot of Rentable Floor Area within the Demised
Premises. If Tenant does not exercise such renewal option on or
before March 31, 2002, the renewal option shall be deemed terminated.
(b) During such renewal term, all of the terms, conditions and provisions
of this Lease shall remain in effect; provided, however, there shall
be no allowances granted during any such renewal period.
(c) If Tenant exercises its option to renew this Lease as provided herein,
the Base Rental Rate for the second and each succeeding year of the
renewal term shall increase to an amount equal to one hundred three
percent (103%) of the Base Rental Rate in effect for the preceding
year of such renewal term. Such increase shall take place on January
1 of each such year during the renewal term.
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2. Right of First Refusal. Provided this Lease is then in full force and
----------------------
effect and Tenant is in full compliance with the terms and conditions of
this Lease, and there is no sublease of any portion of the Demised Premises
or assignment of any of Tenant's interest in the Lease, Landlord hereby
grants Tenant the right to lease the remainder of the space on the 7th
floor not leased by Tenant (the "Expansion Space"), in accordance with the
within terms and conditions. Each time during the Lease Term that Landlord
receives an offer from an unaffiliated third party to lease the Expansion
Space or a portion thereof, upon terms and conditions and at a rental rate
acceptable to Landlord, Landlord shall notify Tenant thereof in writing
setting forth the terms and conditions of such offer, and offering to lease
the portion of the Expansion Space in question to Tenant upon the financial
terms contained in the third party offer. Tenant shall have five (5)
business days to accept or reject such offer. If Tenant rejects such offer
or fails to respond within said five (5) business day period, then Landlord
shall be entitled to rent said space to such third party on such terms and
conditions not materially more favorable than the terms and conditions
offered to Tenant. If Tenant accepts said offer, then Tenant shall have
leased such space upon the financial terms contained in said offer (with
the Rent due from Tenant being the effective rate of rent (on a per square
foot of Rentable Floor Area per annum basis) payable under the third-party
offer), and upon the other terms and conditions as contained in this Lease
and for a term co-terminus with the Lease, except that the space shall be
leased "as is, where is", and any allowances provided for in the third-
party offer being pro-rated to reflect that the proposed term of the third-
party offer may be shorter or longer than the term for which Tenant leases
the Expansion Space in question. The Rent for said Expansion Space shall
commence on the earlier to occur of (i) the date specified in the third-
party offer as the commencement of the term of lease thereof, or (ii) on
the date Tenant occupies said Expansion Space.
3. Tenant's Right to Install Satellite Antenna
-------------------------------------------
(a) Subject to the terms and conditions as described below, Tenant shall
have the right to place on the roof of the Building one (1) satellite
antenna module not to exceed 3' by 3' (the "Antenna") and related
hardware and cabling, connected to the Premises, to service and serve
the Premises and communications to and from the Premises. Tenant must
obtain and pay for all permits and license fees which may be required
to be paid for the erection and maintenance of any and all such
Antenna. The right of Tenant to install such Antenna is expressly
conditioned upon Tenant's Antenna not interfering with any antennae
presently existing on or within the Project, and Tenant hereby
covenants and agrees that this Antenna will not so interfere.
(b) Tenant shall furnish detailed plans and specifications for such
Antenna systems to Landlord for Landlord's consent, which consent
shall not be unreasonably
52
withheld, conditioned or delayed, provided Landlord may condition its
consent by requiring that such systems be installed in the least
conspicuous of all acceptable locations on which the systems might be
located and that all components and elements thereof (except the
terminal devices and structures) be concealed from view from within
and without the Building. Upon the giving of such consent, such
systems shall be installed, at Tenant's expense, by a contractor
selected by Tenant and approved by Landlord, such approval not to be
unreasonably withheld, conditioned or delayed. In the installation of
such systems, Tenant shall comply with all applicable laws, and keep
the Premises, Building and Property free and clear from liens arising
from or related to Tenant's installation, and shall provide all
insurance with respect to or in connection with the Antenna as
Landlord in Landlord's reasonable judgment, deems appropriate or
necessary. Tenant shall be entitled to use such portions of the
Building as may be reasonably necessary for the installation,
operation and maintenance of the Antenna, and Tenant shall have
reasonable access to such portions of the Building at all times
throughout the term of this Lease for such purposes; provided however,
that except for the roof, any cables, conduits or other physical
connections between such Antenna and the Premises shall be concealed
underground or within permanent walls, floors, columns and ceilings of
the Building and in the shafts of the Building provided for such
installations, not damaging the appearance of the Building or reducing
the usable or rentable space of the Building; and provided further,
that except for the roof and Premises, any installation or maintenance
work performed by Tenant or at Tenant's direction shall be performed
without unreasonably interfering with Landlord's or any other tenant's
use of the Building, and upon completion of such installation and
maintenance (initially and from time to time) Tenant shall restore
such portions of the Building to a condition reasonably comparable to
that existing prior to such installation or maintenance. Tenant shall
be responsible for procuring whatever licenses or permits may be
required for the use of such systems or operation of any equipment
served thereby, and Landlord shall cooperate with Tenant, at Tenant's
expense, in procuring such licenses or permits, to the extent required
by applicable laws. Landlord makes no warranties whatsoever as to the
permissibility of such systems under applicable laws. Tenant's Antenna
shall not constitute a nuisance, or unreasonably interfere with the
operations of other tenant of the Building or with the normal use of
the area surrounding the Building by occupants thereof. Upon
termination or expiration of this Lease, Tenant shall remove the
Antenna installed by it pursuant to this Paragraph, at its expense,
and shall repair and restore the Building to a condition comparable to
that existing prior to such installation, normal wear and tear
excepted.
(c) Landlord reserves the right to relocate said Antenna at any time, at
Landlord's sole expense, provided such relocation shall have no
adverse impact on the operations
53
of such Antenna as a service to the Premises. Tenant hereby covenants
and agrees that such Antenna is designed and shall be installed in a
manner so that it is relocatable without extraordinary or unreasonable
trouble, effort or expense.
5. Reserved Parking Spaces. Landlord agrees to provide Tenant with ten (10)
-----------------------
reserved parking spaces in the parking lot, at no additional charge to
Tenant. Such reserved parking spaces shall be in a location determined by
Landlord and such location for the reserved parking spaces may be moved
from time to time by Landlord, in Landlord's reasonable judgment, to
another location determined by Landlord.
6. Common Facility Use. So long as Landlord continues to permit tenants of
-------------------
the Project to utilize the common meeting facility located in the Building
(which Landlord has no obligation to do), then Tenant may utilize the
facility for its reasonable business use, in accordance with the standard
reservations and use procedures imposed by Landlord with respect to said
facility from time to time; provided, however, that there shall be no fee
due from Tenant for such use (other than reimbursing Landlord for any and
all out-of-pocket costs associated or incurred in connection with such
use). Landlord may also, at any time, reconfigure or reduce the size of
the common meeting facility.
7. No Other Rights. No third-party tenant other than Tenant has a current
---------------
interest in or rights to the Demised Premises.
54