EXHIBIT 10.43
GALLERIA
ATLANTA
OFFICE LEASE AGREEMENT
PRG-▇▇▇▇▇▇▇ INTERNATIONAL, INC.
-------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
PARAGRAPH 1 TERM AND POSSESSION 1
2 MONTHLY RENTAL 2
3 SECURITY DEPOSIT 7
4 OCCUPANCY AND USE 7
5 COMPLIANCE WITH LAWS 7
6 ALTERATIONS 8
7 REPAIR 8
8 LIENS 9
9 ASSIGNMENT AND SUBLETTING 9
10 INSURANCE AND INDEMNIFICATION 10
11 WAIVER OF SUBROGATION 11
12 SERVICE AND UTILITIES 11
13 ESTOPPEL CERTIFICATE 12
14 HOLDING OVER 12
15 SUBORDINATION 13
16 RE-ENTRY BY LANDLORD 13
17 INSOLVENCY OR BANKRUPTCY 13
18 DEFAULT AND REMEDIES 14
19 DAMAGE BY FIRE 16
20 CONDEMNATION 17
21 SALE BY LANDLORD 17
22 RIGHT OF LANDLORD TO PERFORM 17
23 SURRENDER OF PREMISES 17
24 WAIVER 17
25 NOTICES 18
26 CERTAIN RIGHTS RESERVED TO LANDLORD 18
27 ABANDONMENT 18
28 SUCCESSORS AND ASSIGNS 19
29 ATTORNEY'S FEES 19
30 CORPORATE AUTHORITY 19
31 MORTGAGE APPROVALS 19
32 MISCELLANEOUS 19
33 LANDLORD'S LIEN 20
34 QUIET ENJOYMENT 20
35 LANDLORD'S LIABILITY 20
36 RIGHT TO RELOCATE 20
37 NO ESTATE 20
38 LEASE EFFECTIVE DATE 20
39 RULES AND REGULATIONS 20
40 SPECIAL STIPULATIONS 21
41 GUARANTY 21
42 CONDITION 21
43 BROKERAGE COMMISSIONS 21
44 EXCULPATION 21
EXHIBIT A RULES AND REGULATIONS
B WORK LETTER AGREEMENT
C TENANT LEASE ESTOPPEL CERTIFICATE
D FLOOR PLAN OF DEMISED PREMISES
E SPECIAL STIPULATIONS
F GUARANTY
G INSURANCE
GALLERIA
ATLANTA
OFFICE LEASE AGREEMENT
THIS LEASE is made as of the day of February 18, 2002 between Galleria
600, LLC, a Georgia limited liability company (hereinafter called "Landlord")
and PRG-▇▇▇▇▇▇▇ International, Inc., a Georgia corporation (hereinafter called
"Tenant").
WITNESSETH:
Landlord hereby leases to Tenant and Tenant hereby leases from
Landlord those premises (hereinafter called "Premises") shown on Exhibit "D"
attached hereto (outlined in red) and made a part thereof, being located in
Atlanta Galleria Office Tower No. 600, a multistory office building (the
"Building") constructed on a parcel of land (the "Property") bounded by I-285
on the North, I-75 on the East, U.S. 41 on the West and ▇▇▇▇▇ Mill Road on the
South. Tenant's Federal Tax Identification Number is ▇▇-▇▇▇▇▇▇▇.
PREMISES: Atlanta ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇
Square Feet: 107,016
Suite Numbers: 100, 200, 300, 400 and 500
Floors: 1st (8,565 square feet)
2nd (24,540 square feet)
3rd (24,637 square feet)
4th (24,637 square feet)
5th (24,637 square feet)
However, at any time after final plans are approved in accordance with the
"Work Letter Agreement" attached hereto as Exhibit "D" and made a part hereof,
but prior to the commencement of Landlord's work in the Premises pursuant to
such plans, Tenant shall have the right, at its sole option exercised by
written notice to Landlord, to (a) decrease the size of the Premises by up to
ten percent (10%) of the total rentable square feet thereof, the precise
location of such rentable square feet being subject to the reasonable approval
of Landlord as to location and configuration of the reduction in the Premises,
or (b) increase the size of the Premises by up to 49,274 rentable square feet
(approximately forty-six percent (46%) of the total rentable square feet in the
Premises), such additional rentable square feet to be on the sixth (6th) floor
and, if applicable, seventh (7th) floor of the Building and to be subject to
the reasonable approval of Landlord as to location and configuration if it is
less than the entire sixth (6th) floor or, if applicable, seventh (7th) floor.
1. TERM AND POSSESSION.
(a) The term of the Lease shall be for one hundred forty four
(144) months (or until sooner terminated as herein provided) (the "Lease
Term"), beginning on (i) January 1, 2003 or (ii) the "Commencement Date" (as
hereinafter defined), whichever shall first occur, except that if the
Commencement Date is other than the first day of a calendar month, the term
hereof shall be extended for the remainder of that calendar month.
(b) The Commencement Date shall be the earlier of (i) the date
upon which the Premises have been substantially completed in accordance with
the plans and specifications of Landlord (other than any work which cannot be
completed on such date provided such incompletion will not substantially
interfere with Tenant's use of the Premises or any material portion or part
thereof), or (ii) the date on which Tenant takes possession of a portion of or
all of the Premises for business purposes; provided, however, that if Landlord
shall be delayed in such substantial completion solely as a result of any of
the foregoing (each a "Tenant Delay"): (1) Tenant's failure to agree to plans,
specifications, or cost estimates, or to otherwise fail to take the required
actions, before the dates referred to in the Work Letter Agreement (including
any schedules thereto) attached hereto as Exhibit "B" and made a part hereof;
(2) Tenant's request for materials, finishes or installations other than
Landlord's standard, which materials, finishes or installations have or are
likely to have long lead times or other characteristics that are likely to
cause delay, and as to which Landlord notifies Tenant of the estimated period
of delay during the approval of such requests; (3) Tenant's changes in plans,
provided that such changes actually cause a delay and Landlord notifies Tenant
of the estimated period prior to approval of such changes; or (4) the
performance or completion by a party employed by Tenant, the Commencement Date
and the payment of rent hereunder shall be accelerated by the number of days of
such delay. Notwithstanding the foregoing, if Tenant first takes possession of
all or any portion of the Premises for business purposes on or after October 1,
2002, then Tenant shall not be required to pay monthly installments of rent
under Paragraph 2(a) of this Lease or Direct Operating Expenses under Paragraph
2(c) of this Lease for any period prior to January 1, 2003.
(c) Landlord agrees to perform the "Building Standard Work" and
"Building Nonstandard Work" in the Premises as provided in the Work Letter
Agreement with diligence, subject to events and delays due to causes beyond its
reasonable control. The Premises shall be deemed substantially completed and
possession delivered when Landlord has substantially completed the work to be
constructed or installed pursuant to the provisions of the Work Letter
Agreement, subject only to the completion of items on Landlord's punch list
(and exclusive of the installation of all telephone and other communications
facilities and equipment and other finish work to be performed by or for
Tenant). Such punch list shall be prepared based upon a joint walk-through
inspection of the Premises by Landlord and Tenant performed not earlier than
ten (10) business days and not later than two (2) business days prior to the
target date for substantial completion of the Premises. Such punch list items
shall be completed by Landlord within sixty (60) days after the Commencement
Date.
(d) The taking of possession for business purposes by Tenant
shall be deemed conclusively to establish that the Building, other
improvements, and the Premises have been completed in accordance with the plans
and specifications and are in good and satisfactory condition as of when
possession was so taken, except for punch-list work, and except for latent
defects, all of which shall be promptly corrected, repaired or completed by
Landlord at its sole cost and expense with reasonable diligence following
notice thereof from Tenant.
(e) Notwithstanding the foregoing provisions to the contrary, if
the Commencement Date does not occur prior to January 1, 2003 as a result of
any Landlord Delay (as hereinafter defined), then the Lease Term and Tenant's
obligation to pay rent hereunder shall not occur until the occurrence of the
Commencement Date. For purposes of this Lease, "Landlord Delay" shall mean any
of the following: (i) Landlord's failure to perform its obligations under
Paragraph 1 of this Lease, the Work Letter Agreement, or any other provisions
hereof relating to Landlord's duty to construct the initial improvements to the
Premises; or (ii) Landlord's failure to take any other action required to be
taken by Landlord under any other provision of this Lease or the Work Letter
Agreement within the period specified therefor; provided, however, that any
such failure is not a result of Tenant Delay or an event of default by Tenant
under this Lease.
2. MONTHLY RENTAL.
(a) Tenant shall pay to Landlord throughout the term of this
Lease annual rental in the amounts set below, payable in equal monthly rental
installments, and payable in advance on the first day of each month during
every year of the term hereby demised in lawful money of the United States,
without deduction or offset whatsoever, to Landlord or to such other firm as
Landlord may from time to time designate in writing. The annual and monthly
rental shall be as follows, based upon the Premises in fact containing 107,016
square feet of area (and subject to adjustment to reflect the actual number of
square feet of area leased if the Premises do not contain 107,016 square feet
due to Tenant's election to decrease or increase the size of the Premises
pursuant to the provisions preceding Paragraph 1 of this Lease):
Monthly
Rate per Rentable Annual Installment
Lease Year Square Foot Rental of Rent
---------- ----------------- ------------- ------------
One $10.00 $1,070,160.00 $89,180.00
Two $12.00 $1,284,192.00 $107,016.00
Three $26.50 $2,835,924.00 $236,327.00
Four $27.16 $2,906,554.56 $242,212.88
Five $27.85 $2,980,395.60 $248,366.30
Six $28.55 $3,055,306.80 $254,608.90
Seven $29.26 $3,131,288.16 $260,940.68
Eight $29.99 $3,209,409.84 $267,450.82
Nine $30.74 $3,289,671.84 $274,139.32
Ten $31.51 $3,372,074.16 $281,006.18
Eleven $32.30 $3,456,616.80 $288,051.40
Twelve $33.11 $3,543,299.76 $295,274.98
Until notified otherwise, Tenant shall submit all payments using the following
Electronic Fund Transfer (wire transfer) method:
ACCOUNT NAME: GALLERIA 600, LLC
BANK NAME: FIRST UNION NATIONAL BANK, ATLANTA, GEORGIA
ROUTING & TRANSIT: ▇▇▇▇▇▇▇▇▇
ACCOUNT NUMBER: 2000010375480
Tenant must notify Landlord of wire using one of the following methods:
Fax: Childress ▇▇▇▇▇ Properties, Attn: ▇▇▇▇▇ ▇▇▇▇▇, (▇▇▇) ▇▇▇-▇▇▇▇ or
E-mail: ▇▇▇▇▇_▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Wiring instructions are subject to change upon not less than ten (10) days'
prior notification from Landlord.
Said rental is subject to adjustments as provided hereinbelow. If this Lease
commences on a day other than the first day of a calendar month, the monthly
rental for the fractional month shall be appropriately prorated.
(b) Tenant recognizes that late payment of any rent or other sum
due hereunder from Tenant to Landlord will result in administrative expense to
Landlord, the extent of which additional expense is extremely difficult and
economically impractical to ascertain. Tenant therefore agrees that if rent or
any other payment due hereunder from Tenant to Landlord remains unpaid five (5)
days after notice thereof from Landlord to Tenant
2
(provided, however, Landlord shall not be required to give such notice to
Tenant more than two (2) times in any consecutive twelve (12) month period, and
after Landlord shall have given two (2) such notices in any consecutive twelve
(12)-month period, Tenant shall not be entitled to any notice with respect to
any subsequent failure to pay rent when due during the remainder of such
consecutive twelve (12) month period, and the late charge set forth herein
shall be due and owing by Tenant if any payment is not made by Tenant during
the remainder of such consecutive twelve (12) month period within five (5) days
after said amount is due), the amount of such unpaid rent or other payment
shall be increased by a late charge to be paid to Landlord by Tenant in an
amount equal to five percent (5%) of the amount of the delinquent rent or other
payment. The amount of the late charge to be paid to Landlord by Tenant for any
month shall be computed on the aggregate amount of delinquent rents and other
payments, including all accrued late charges then outstanding, and shall be
deemed to be rental for all purposes hereunder. Tenant agrees that such amount
is a reasonable estimate of the loss and expense to be suffered by Landlord as
a result of such late payment by Tenant and may be charged by Landlord to
defray such loss and expense. The provisions of this paragraph in no way
relieve Tenant of the obligation to pay rent or other payments on or before the
date on which they are due, nor do the terms of this paragraph in any way
affect Landlord's remedies pursuant to Paragraph 18 of this Lease in the event
said rent or other payment is unpaid after the date due.
(c) The monthly rental payable hereunder shall be subject to
adjustment each calendar year during the term of this Lease, commencing January
1, 2004, in the following manner:
(i) Tenant shall pay to Landlord as additional rent
Tenant's proportionate share of the amount by which the Direct
Operating Expenses (as hereinafter defined) incurred by Landlord in
the operation of the Building during each calendar year of the Lease
Term exceeds the Direct Operating Expenses for the base year 2003
(hereinafter called the "Base Year"). Tenant's Proportionate Share of
Direct Operating Expenses (as hereinafter defined) shall be prorated
on a daily basis using a 365-day calendar year, as necessary for any
year during which this Lease is in effect for less than the full
twelve month calendar year. Direct Operating Expenses shall be
calculated on an accrual basis. For the purpose of estimating the
Direct Operating Expenses during each subsequent year after the Base
Year, Landlord shall reasonably estimate such expenses (assuming
ninety-five percent (95%) occupancy of the Building if the actual
occupancy is less than ninety-five percent) based on the actual Direct
Operating Expenses for the preceding year, any then-known cost changes
or additional expenses which can be reasonably anticipated to occur
within the year for which such expenses are estimated, Landlord's
experience with similar office buildings, the costs of contracts
already entered, quotes obtained, representations of providers of the
services and equipment, consultation with specialists such as
insurers, and other factors a prudent landlord would use to make a
fair and accurate estimate of operating costs. Notwithstanding
anything contained in this Lease to the contrary, for purposes of
determining Direct Operating Expenses for the Base Year and each
calendar year subsequent to the Base Year, in the event actual
occupancy of the Building is less than ninety-five percent (95%)
during any calendar year, the actual Direct Operating Expenses for
such calendar year shall be increased to the amount which Landlord
reasonably estimates would have been incurred for such calendar year
had the occupancy of the Building been ninety-five percent (95%)
throughout such year, and the amount so estimated shall be deemed to
be the Direct Operating Expenses for such calendar year.
(ii) "Tenant's Proportionate Share of Direct Operating
Expenses" shall mean, for each calendar year (or portion thereof), the
product of (i) the Operating Expense Amount (defined below) multiplied
by (ii) a fraction, the numerator of which is the number of square
feet contained in the Premises (107,016) and the denominator of which
is the number of rentable square feet contained in the Building
(430,017). As used herein, the "Operating Expense Amount" shall mean,
for each calendar year (or portion thereof), the amount by which the
Direct Operating Expenses (defined below) exceeds the Base Year's
Direct Operating Expenses. Notwithstanding any provisions herein to
the contrary, for purposes of calculating Tenant's Proportionate Share
of Direct Operating Expenses for any given calendar year, the
Controllable Expenses (as hereinafter defined) for such calendar year
shall not exceed by more than five percent (5%) on an annual,
cumulative basis (i.e., the 5% annual limit shall be applied
cumulatively from the initial calendar year of the Lease Term) the
amount of Controllable Expenses in the immediately preceding calendar
year (on an annualized basis). For example, the total permitted
increase in Controllable Expenses for the first three calendar years
is fifteen percent (15%) on a cumulative basis, and increases of 2%
for the first calendar year, 6% for the second calendar year, and 7%
for the third calendar year would not exceed the applicable limits for
such calendar years. Controllable Expenses shall be deemed to mean all
operating expenses set forth in Section 2(c)(iii) of this Lease,
except Impositions, utilities expenses and insurance expenses.
(iii) For purposes of this Lease, the term "Direct
Operating Expenses" shall consist of all "operating costs" (as
hereinafter defined) for the Building, and the Building's share of all
operating costs for any parking area and common area serving the
Building, and the Property (the Building, such parking area, common
area and the Property being hereinafter referred to collectively as
the "Project"). For purposes of this Lease, the term "operating costs"
shall mean all reasonable expenses, costs and disbursements computed
on the accrual basis, relating to or incurred or paid in connection
with the operation, maintenance and repair of the Project, including,
but not limited to the following:
a. Building personnel costs, including, but
not limited to, salaries, wages, fringe benefits, social
security taxes and other direct and indirect costs of Senior
Property Manager, Engineering Manager, Building Managers,
Accounting Manager, Construction Manager, Promotions Manager,
Security Manager, and each department's supporting personnel
and administrative assistants, engineers, construction
department, superintendents, watchmen, porters and any other
personnel engaged in the operation and maintenance of the
Project and associated
3
overhead; provided, however, that such personnel costs shall
be allocated among buildings in the Galleria complex,
including, without limitation, the Building, to the extent
that any such personnel are engaged in the operation,
maintenance or repair of buildings in addition to the
Building and/or other portions of the Project.
b. The cost of all supplies, tools, equipment
and materials used in the operation and maintenance of the
Project.
c. The cost of water, sewer, gas, heating,
lighting, ventilation, electricity, air conditioning, and any
other utilities supplied or paid for by Landlord for the
Project and the costs of maintaining the systems supplying
the same, including, but not limited to, any utility and
service costs incurred by Landlord, but excluding any costs
or expenses for any such utilities provided to and payable by
tenants or lessees in the Building and/or Project (other than
as payment of Direct Operating Expenses).
d. The cost of all agreements for maintenance
and service of the Project and the equipment therein,
including, but not limited to, agreements relating to
security service, window cleaning, elevator maintenance,
chiller maintenance, Building management, janitorial service,
pest control and landscaping maintenance.
e. The cost of maintaining sprinkler systems,
fire extinguishers and fire hoses, emergency systems and
equipment that may be now or hereafter required by the
Americans With Disabilities Act, and the cost of all security
services and protective services or devices rendered to or in
connection with the Project or any part thereof; any costs
incurred in order to comply with any law, statute, ordinance,
or governmental rule, regulation or requirement now in force
or which may hereafter be enacted or promulgated; and the
costs incurred in order to comply with requirements of any
insurer or mortgagee, where such requirements concern safety
or structural features of the Building and are commercially
reasonable in light of requirements generally imposed in the
insurance or real estate lending industries with respect to
similar buildings; provided, however, that with respect to
any of the foregoing costs identified in this subparagraph
e., the cost of any such new or additional systems,
equipment, devices and/or safety or structural features shall
be capitalized to the extent required by and in accordance
with the standard accounting principles used by Landlord in
the operation of the Building and amortized over the useful
life of the asset in question, so that only the portion
thereof attributable to the current calendar year may be
included in operating costs for such calendar year.
f. Insurance premiums for insurance for the
Project required to be maintained by Landlord hereunder or
which a prudent owner would carry, including, but not limited
to, premiums for property insurance (customary for similar
Class "A" office buildings in the Northwest Atlanta office
submarket) maintained by Landlord, business interruption or
rental abatement insurance, garage keeper's insurance, and
commercial general liability insurance.
g. The cost of repairs and general maintenance
of the Project (excluding repairs, alterations and general
maintenance paid by proceeds of insurance or attributable
solely to tenants of the Project other than Tenant, but
including deductibles paid by Landlord, subject to
amortization as required hereunder based on the nature of the
damage in question and the repairs or replacements required
after a casualty to cause the asset in question to be
functional or operable), including, but not limited to: any
management fees charged by Landlord; promotional or seasonal
expenses; maintenance and cleaning of common areas and
facilities; lawn mowing, gardening, landscaping, and
irrigation of landscaped areas; line painting, pavement
repair and maintenance, sweeping, and sanitary control;
removal of snow, trash, rubbish, garbage, and other refuse;
the cost of personnel to implement such services, to direct
parking, and to patrol the common areas; the cost of exterior
and interior painting of common areas; all maintenance and
repair costs; and the cost of maintenance of sewers and
utility lines.
h. The amortization amount (including interest
at a market rate) necessary to amortize the cost of
capitalized alterations or improvements, including, but not
limited to, the replacement of existing furniture, fixtures,
equipment or systems that have become obsolete or do not
function efficiently and effectively or as they were
originally intended for a first class office building. The
amortization period selected by the Landlord shall reflect
the useful life of the alteration or improvement.
i. All taxes, assessments, and governmental or
other charges, general or special, ordinary or extraordinary,
foreseen or unforeseen (including, but not limited to,
Community Improvement District assessments), which are
levied, assessed, or otherwise imposed against the Project,
street lights, personal property or rents, or on the right or
privilege of leasing the Project, collecting rents therefrom
or parking vehicles thereon, by any federal, state, county,
or municipal government or by any special sanitation district
or by any other governmental or quasi-governmental entity
that has taxing or assessment authority, and any other taxes
and assessments, together with any interest and penalties
thereon, attributable to the Project or its operation (herein
collectively called the "Impositions"), but exclusive of
federal, state and local income taxes of Landlord,
inheritance taxes, estate taxes, gift taxes, transfer taxes,
intangibles mortgage taxes, excess profit taxes and any taxes
imposed in lieu of such taxes. If at any time during the
Lease
4
Term, the present method of taxation or assessment shall be
so changed that the whole or any part of the Impositions now
levied, assessed or imposed on real estate and the
improvements thereon shall be discontinued and as a
substitute therefor, or in lieu of and in addition thereof,
taxes, assessments, levies, impositions or charges shall be
levied, assessed and/or imposed wholly or partially as a
capital levy or otherwise on the rents received from the
Project or the rents reserved herein or any part thereof,
then such substitute or additional taxes, assessments,
levies, impositions or charges, to the extent so levied,
assessed or imposed, shall be deemed to be included within
the Impositions and the operating costs. Tenant will be
responsible for ad valorem taxes on its personal property
and, provided that all other tenants or lessees of the
Building are treated similarly, on the value of the leasehold
improvements in the Premises to the extent the same exceed
building standard allowances (and if the taxing authorities
do not separately assess Tenant's leasehold improvements,
Landlord may make a reasonable allocation of the ad valorem
taxes allocated to the Project to give effect to this
sentence).
j. All assessments (if any) assessed against
the Project during the Lease Term pursuant to any protective
covenants, easement agreements or common area maintenance
agreements now or hereafter of record against the Project
including, but not limited to, any common area maintenance
charges assessed pursuant to that certain Common Area
Maintenance Agreement dated July 2, 1985, as said Agreement
has been and may be amended from time to time.
k. Fees of accountants, attorneys and other
consultants, professionals or advisors incurred by Landlord
with respect to operational issues at the Project.
l. Any other costs or expenses incurred by
Landlord in the operation of the Project that would be
considered an expense of maintaining, operating or repairing
the Project, all such costs and expenses being recorded on an
accrual basis in accordance with accepted principles of sound
management and accounting practices applicable to first class
office building complexes and consistently applied.
Direct Operating Expenses shall not include the following
items:
Leasing commissions, finders' fees, brokerage fees, and costs
incurred with the negotiation of leases (but not management fees);
Rent under any ground leases; Costs of furnishing services to other
tenants or occupants to the extent that such services are materially
and substantially in excess of services Landlord offers to all tenants
at Landlord's expense; Lease takeover costs incurred by Landlord in
connection with new leases at the Property; Costs and expenses of the
sale of all or any portion of the Property; Costs incurred by Landlord
with respect to repairs, goods and services (including utilities sold
and supplied to tenants and occupants of the Property) to the extent
that Landlord is entitled to reimbursement for such costs from the
tenants; Costs incurred by Landlord due to the violation by Landlord
of the terms and conditions of any lease of space in the Property;
Interest, points and fees on debt or amortization or for any mortgage
or mortgages encumbering the Property, or any part thereof, and all
principal, escrow deposits and other sums paid on or in respect to any
indebtedness (whether or not secured by a mortgage lien) and on any
equity participations of any lender or landlord, and all costs
incurred in connection with any financing, refinancing or syndication
of the Property, or any part thereof; Costs of the original
construction of the Property; Income, franchise, transfer,
inheritance, capital stock, estate, profit, gift, gross receipts or
succession taxes; Costs of repairs or replacements incurred by reason
of fire or other casualty or condemnation in excess of the insurance
deductible; Costs for performing tenant installations for any
individual tenant or for performing work or furnishing services to or
for individual tenant at such tenant's expense and any other
contribution by Landlord to the cost of tenant improvements to the
extent such work is reimbursed or capitalized.
The following items shall also be excluded from Direct
Operating Expenses:
A. any cost or expense to the extent to which Landlord
is paid or reimbursed or is entitled to payment or reimbursement from
any person (other than as a payment for Direct Operating Expenses),
including but not necessarily limited to, (1) work or service
performed for any tenant (including without limitation Tenant) at such
tenant's cost, (2) the cost of any item for which Landlord is paid or
reimbursed by insurance proceeds (or is entitled to be paid or
reimbursed by insurance proceeds), warranties, service contracts,
condemnation proceeds (or is entitled to be paid or reimbursed from
condemnation proceeds) or otherwise, (3) increased insurance or taxes
assessed specifically to any tenant of the Building, (4) charges
(including without limitation applicable taxes) for heat, air
conditioning, electricity, water or other utilities for which Landlord
is entitled to direct reimbursement from any tenant, and (5) the cost
of items furnished to a tenant to a materially greater extent or in a
materially more favorable manner than that furnished generally to the
tenants and other occupants of the Building (including without
limitation Tenant);
B. the cost of installing, operating and maintaining
any special facilities, such as an observatory, cafeteria, luncheon
club, athletic club, locker room, showers or other similar facilities
(provided that the net cost of operating and maintaining a conference
facility in the Building shall be included in Direct Operating
Expenses);
C. the cost of correcting initial defects in the
design, construction or equipment of the Building, any leased premises
(including without limitation the Premises) or Project;
5
D. salaries and bonuses of any employee of Landlord
above the level of Senior Property Manager;
E. any severance pay paid to any company or business
providing services, materials or supplies to the Building, the cost of
which services, materials or supplies is a component of Direct
Operating Expenses hereunder terminated by Landlord;
F. Direct Operating Expenses attributable to any work
or services performed for any building other than the Building;
G. any fees, costs, and commissions incurred in
procuring or attempting to procure other Tenants including, but not
necessarily limited to brokerage commissions, finders fees, attorneys'
fees and expenses, entertainment costs, travel expenses and
advertising and production costs;
H. any cost included in Direct Operating Expenses
representing an amount paid to a person, firm, corporation or other
entity related to Landlord which is in excess of the amount which
would have been paid to a third party on an arms length basis in the
absence of such relationship;
I. any costs of painting or decorating of any interior
parts of the Building other than the Building's common areas;
J. Landlord's general overhead except as it relates
specifically to the actual management of the Building;
K. the cost of the initial landscaping of the Building,
Property or Project;
L. attorneys' fees, costs and other expenditures
incurred in connection with financing, refinancing or sale activities
pertaining to the Building, Property or Project, or to the leasing of
premises in the Building, leasing disputes with Tenants or occupants
of the Building or with other third persons and/or claims by such
Tenants or occupants or third parties;
M. the cost of leasing or acquiring sculptures,
paintings and other objects of art;
N. the cost of curing any violation of any law,
ordinance or regulation applicable to the Building and existing as of
the commencement of the Lease Term, or of remediating any
environmental condition existing as of the commencement of the Lease
Term, including the removal of, or other steps taken with respect to,
asbestos located in the Building, unless such condition was caused by
Tenant or Tenant's agents, employees or contractors;
O. any property insurance deductible in excess of
$25,000; and
P. any earthquake or terrorism insurance deductible.
(d) (i) In the event the Direct Operating Expenses for the
Project (excluding Impositions, utilities expenses and insurance expenses)
increase by more than three and five-tenths percent (3.5%) in any calendar
year, Tenant shall be entitled to review such supporting documentation of the
Direct Operating Expenses as Tenant shall reasonably request. Tenant may, at
Tenant's sole cost and expense, audit Landlord's books and records pertaining
to its Direct Operating Expenses in order to verify the accuracy of such
expenses; provided, however, that:
Tenant notifies Landlord in writing, within sixty (60) days
after receipt of Landlord's annual statement of Direct Operating
Expenses, of its intent to audit such Direct Operating Expenses and
completes the audit and provides Landlord with the audit results
within 180 days of such notification; and
Such audit shall be conducted only during regular business
hours at the office in metropolitan Atlanta, Georgia, where Landlord
maintains the Direct Operating Expense records and only after Tenant
gives Landlord at least thirty (30) days prior written notice; and
Such audit shall be conducted by an independent,
nationally-recognized certified public accounting firm that is not
being compensated by Tenant on a contingency fee basis, an authorized
representative of Tenant with no less than five (5) years of
experience in real estate auditing, or any other party reasonably
acceptable to Landlord; and
Tenant shall reimburse Landlord for the cost of reproducing
any records requested by Tenant or its auditors.
(ii) No such audit shall be conducted if Landlord or any
other tenant has conducted a comprehensive audit by an independent,
nationally recognized certified public accounting firm that is not
being compensated by such tenant on a contingency fee basis for the
time period Tenant intends to audit, and Landlord, at its sole option,
furnishes to Tenant a copy of the results of such audit, which shall
be the basis on which any reimbursements are made by Landlord. If, as
a result of any audit by Landlord or any
6
tenant, Direct Operating Expenses are reduced, then Tenant's
Percentage Share of Direct Operating Expenses for the year in question
shall be reduced accordingly for the year in question.
(iii) No audit shall be conducted at any time when Tenant
is in uncured default of any of the monetary terms of the Lease, and
no subtenant shall have any right to conduct an audit. No assignee of
Tenant shall be entitled to conduct any audit for any period during
which such assignee was not in possession of the Premises.
(iv) In the event that Tenant shall request an audit of
any such Direct Operating Expenses, then pending resolution of such
audit, Tenant shall nevertheless continue to make payments as required
by Landlord.
(v) If the amount of Direct Operating Expenses for the
Project (excluding Impositions, utilities expenses and insurance
expenses) set forth in Landlord's annual statement exceeds by more
than eight percent (8%) of the amount of Direct Operating Expenses for
the Project (excluding real estate taxes) as determined by such audit,
then the reasonable cost of such audit shall be borne by Landlord, and
Landlord shall reimburse Tenant for such cost.
(vi) Nothing contained in this Section shall imply any
duty on the part of Landlord to pay any expense or provide any service
not otherwise imposed by the express terms of this Lease.
(vii) On or about December 31 of each calendar year during
the Lease Term, Landlord shall estimate the amount of Direct Operating
Expenses and Tenant's Proportionate Share of Direct Operating Expenses
for the ensuing calendar year or (if applicable) fractional part
thereof and notify Tenant in writing of such estimate. Such estimate
shall be made by Landlord in the exercise of its discretion, and shall
not be subject to dispute by Tenant. The amount of additional rent
specified in such notification shall be paid by Tenant to Landlord in
equal monthly installments in advance on the first day of each month
of such ensuing calendar year, at the same time and in the same manner
as base rent.
(viii) Within One Hundred Eighty (180) days after December
31 of any calendar year during the Lease Term for which additional
rent is due under this Section, Landlord shall advise Tenant in
writing, of the amount of actual Direct Operating Expenses for such
calendar year. If the Direct Operating Expenses for such calendar year
prove to be greater than the amount previously estimated, Landlord
shall invoice Tenant for the deficiency as soon as practicable after
the amount of underpayment has been determined, and Tenant shall pay
such deficiency to Landlord within thirty (30) days following its
receipt of such invoice. If, however, Direct Operating Expenses for
such calendar year are lower than the amount previously estimated,
Tenant shall receive a credit (or in the event the term of this Lease
has then expired, Tenant shall receive a cash refund) toward the next
ensuing monthly payment or payments of the estimated amount of
Tenant's Proportionate Share of Direct Operating Expenses in the
amount of such overpayment until depleted, but in no event shall
Tenant's Proportionate Share of Direct Operating Expenses be deemed to
be less than zero.
3. SECURITY DEPOSIT.
Tenant hereby deposits with Landlord on the date hereof the sum of
zero and 00/100 Dollars ($0.00), which sum shall be held by Landlord, without
obligation for interest, as security for the full, timely and faithful
performance of Tenant's covenants and obligations under this Lease. It is
understood and agreed that such deposit is not an advance rental deposit or
prepayment of the last month's rent due hereunder, and is not a measure of
Landlord's damages in case of Tenant's default. Upon the occurrence of any
default or event of default by Tenant, Landlord may, from time to time, without
prejudice to any other remedy provided herein or provided by law, use such
funds to the extent necessary to make good any arrears of rent or other
payments due Landlord hereunder, and any other damage, injury, expense or
liability caused by any event of Tenant's default; and Tenant shall pay to
Landlord on demand the amount so applied in order to restore the security
deposit to its original amount. Although the security deposit shall be deemed
the property of Landlord, any remaining balance of such deposit shall be
returned by Landlord to Tenant or Tenant's last permitted assignee at such time
after termination of this Lease when Landlord shall have determined that all
Tenant's obligations under this Lease have been fulfilled. Landlord shall not
be required to keep any security deposit separate from its general funds. Upon
the occurrence of any events of default or default as described in this Lease,
said security deposit shall become due and payable to Landlord. Subject to the
other terms and conditions contained in this Lease, if the Building is conveyed
by Landlord, said deposit may be turned over to Landlord's grantee, and if so,
Tenant hereby releases Landlord from any and all liability with respect to said
deposit and its application or return.
4. OCCUPANCY AND USE.
(a) Tenant shall use and occupy the Premises for general office
purposes, and for other lawful purposes incidental and related thereto in
connection with Tenant's business, and for no other use or purpose without the
prior written consent of Landlord.
(b) Tenant shall not do or permit anything to be done in or about
the Premises which will in any way obstruct or interfere with the rights of
other tenants or occupants of the Building or injure or annoy them, nor use or
allow the Premises to be used for any improper, immoral, unlawful, or
objectionable purposes or for any business, use or purpose deemed to be
disreputable or inconsistent with the operation of a first class office
building, nor shall Tenant cause or maintain or permit any nuisance in, on, or
about the Premises. Tenant shall not commit or suffer the
7
commission of any waste in, on, or about the Premises. Landlord shall comply
with Landlord's maintenance and repair obligations set forth in Paragraph 12(a)
of this Lease
5. COMPLIANCE WITH LAWS.
(a) Tenant shall not use the Premises or permit anything to be
done in or about the Premises which will in any way conflict with any law,
statute, ordinance, or governmental rule, regulation or requirement now in
force or which may hereafter be enacted or promulgated. Tenant shall not do or
permit anything to be done on or about the Premises or bring or keep anything
therein which will in any way increase the rate of any insurance upon the
Building in which the Premises are situated or any of its contents or cause a
cancellation of said insurance or otherwise affect said insurance in any
manner, and Tenant shall at its sole cost and expense promptly comply with all
laws, statutes, ordinances, and governmental rules, regulations, or
requirements now in force or which may hereafter be in force and with the
requirements of any board of fire underwriters or other similar body now or
hereafter constituted relating to or affecting the condition, use, or occupancy
of the Premises. Notwithstanding anything contained in this paragraph to the
contrary, the parties hereby acknowledge and confirm that Landlord, and not
Tenant, shall be responsible for ensuring that the common areas of the
Building, Property and Project comply with applicable laws, and, as between
Landlord and Tenant, Landlord shall be responsible for any liability resulting
from such non-compliance (and the costs relating to such liability shall not be
passed through to Tenant as Direct Operating Expenses).
(b) Tenant shall not use, handle, store, deal in, discharge, or
fabricate any Hazardous Materials (as herein defined) on or about the Premises.
Tenant shall indemnify Landlord (and anybody claiming by, through, or under
Landlord) from and against any and all claims, damages, losses, costs, and
expenses (including reasonable actual attorneys' fees and court costs) incurred
by Landlord or anybody claiming by, through, or under Landlord as a result of
the existence of any Hazardous Materials on or about the Premises or any
environmental problems relating to the Premises which are caused by or related
to the delivery, deposit or creation of Hazardous Materials on or about the
Premises during the term of this Lease. As used herein, "Hazardous Materials"
means any petroleum or chemical liquids or solids, liquid or gaseous products,
contaminants, oils, radioactive materials, asbestos, PCB's, urea-formaldehyde,
or any toxic or hazardous waste or hazardous substances, as those terms are
used in (A) the Resources Conservation Recovery Act, as amended by the
Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. ▇▇.▇▇. 6901 et seq.;
(B) the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended by the Superfund Amendments and Reauthorization Act of
1986, 42 U.S.C. ▇▇.▇▇. 9601 et seq.; (C) the Clean Water Act, 33 U.S.C. ▇▇.▇▇.
1251 et seq.; (D) the Toxic Substances and Control Act, 15 U.S.C. ▇▇.▇▇. 2601
et seq.; (E) the Clean Air Act, 42 U.S.C. ▇▇.▇▇. 7401 et seq.; (F) any and all
applicable environmental laws and regulations of the State of Georgia; and (G)
any and all other applicable federal, state or local law or regulation
governing hazardous substances or workplace health or safety, as such laws may
be amended from time to time. Notwithstanding anything contained in this
paragraph to the contrary, the parties hereby acknowledge and confirm that
Landlord, and not Tenant, shall be responsible for insuring that the common
areas of the Building, property and Project comply with applicable
environmental laws, and, as between Landlord and Tenant, Landlord shall be
responsible for any liability resulting from such non-compliance (and the costs
relating to such liability shall not be passed through to Tenant as Direct
Operating Expenses).
6. ALTERATIONS.
Tenant shall not make or suffer to be made any alterations, additions,
or improvements in, on, or to the Premises or any part thereof without the
prior written consent of Landlord, and no such alterations, additions or
improvements shall be made without the supervision of Landlord's designated
agent or representative. Landlord's consent shall not be unreasonably withheld,
conditioned or delayed, and shall not be necessary or required with any
alterations or additions that satisfy the following criteria ("Cosmetic
Alterations"): (1) is of a cosmetic nature such as painting, wallpapering,
hanging pictures, installing carpeting, and installing or rearranging cubicle
systems or furniture; (2) is not visible from the exterior of the Premises or
Building; (3) will not adversely affect the systems or structure of the
Building; and (4) does not require work to be performed inside the demising
walls of the Premises. However, even though consent is not required, the
performance of Cosmetic Alterations shall be subject to all other applicable
provisions of this Paragraph 6, and Tenant shall give Landlord written notice
of any Cosmetic Alterations at least ten (10) days prior to commencement of
such Cosmetic Alterations. In the event Landlord consents to the making of any
such alterations, additions, or improvements by Tenant, the same shall be made
by Tenant, at Tenant's sole cost and expense, in accordance with all applicable
laws, ordinances, and regulations and all requirements of Landlord's and
Tenant's insurance policies. All work shall be performed in accordance with
plans and specifications approved by Landlord, and each contractor and
subcontractor must first be approved in writing by Landlord, or, at Landlord's
option, the alteration, addition or improvement (other than Cosmetic
Alterations) shall be made by Landlord for Tenant's account, and Tenant shall
reimburse Landlord for the cost thereof upon demand. Tenant agrees that
Landlord shall have the right to charge a reasonable fee for any and all
construction supervision provided by Landlord's designated agents or
representatives in connection with any alterations, additions, or improvements
(other than Cosmetic Alterations) to the Premises by Tenant. Such fee, at
Landlord's option, shall be either a fixed fee or a fee calculated on an hourly
basis, considering the time expended by Landlord's agents or representatives in
supervising Tenant's construction.
7. REPAIR.
By taking possession of the Premises, Tenant accepts the Premises as
being in the condition in which Landlord is obligated to deliver them and
otherwise in good order, condition and repair, subject, however, to the
requirements and limitations of Paragraph 1 above and Exhibit "D" hereto.
Tenant shall, at all times during the term hereof at Tenant's sole cost and
expense, keep the Premises and every part thereof in good order, condition and
8
repair, excepting ordinary wear and tear, damage thereto by fire, earthquake,
act of God or the elements, condemnation, or the acts or omissions of Landlord,
its agents, employees or contractors. Tenant shall upon the expiration or
sooner termination of the term hereof, unless Landlord demands otherwise as in
Paragraph 23 hereof provided, surrender to Landlord the Premises and all
repairs, changes, alterations, additions and improvements thereto in the same
condition as when received, or when first installed, ordinary wear and tear,
damage by fire, earthquake, act of God, or the elements, condemnation, or the
acts or omissions of Landlord, its agents, employees or contractors excepted.
It is hereby understood and agreed that Landlord has no obligation to alter,
remodel, improve, repair, decorate, or paint the Premises or any part thereof
except as specified in the Work Letter Agreement, and that no representations
respecting the condition of the Premises or the Building have been made by
Landlord to Tenant, except as specifically set forth in this Lease, including,
without limitation, the exhibits hereto.
8. LIENS.
Tenant shall keep the Premises free from any liens arising out of any
work performed, material furnished, or obligations incurred by Tenant. In the
event that Tenant shall not, within ten (10) business days following Tenant
obtaining knowledge of the recordation of any such lien, cause the same to be
released of record by payment or posting of a proper bond, Landlord shall have,
in addition to all other remedies provided herein and by law, the right, but
not the obligation, to cause the same to be released by such means as it shall
deem proper, including payment of the claim giving rise to such lien. All such
sums paid by Landlord and all expenses incurred by it in connection therewith
shall be considered additional rent and shall be payable to Landlord by Tenant
on demand and with interest at the rate of four percentage points higher than
the prime commercial lending rate from time to time of SunTrust Bank in
Atlanta, Georgia, provided, however, that if such rate exceeds the maximum rate
permitted by law, the maximum lawful rate shall apply; the interest rate so
determined is hereinafter called the "Agreed Interest Rate". Landlord shall
have the right at all times to post and keep posted on the Premises any notices
permitted or required by law, or which Landlord shall deem proper, for the
protection of Landlord, the Premises, the Building, and any other party having
an interest therein, from mechanics' and materialmen's liens, and Tenant shall
give to Landlord at least five (5) business days prior notice of commencement
of any construction on the Premises.
9. ASSIGNMENT AND SUBLETTING.
(a) Tenant shall not sell, assign, encumber or otherwise transfer
by operation of law or otherwise this Lease or any interest herein, sublet the
Premises or any portion thereof, or suffer any other person to occupy or use
the Premises or any portion thereof, without the prior written consent of
Landlord as provided herein, which consent shall not be unreasonably withheld,
conditioned or delayed, nor shall Tenant permit any lien to be placed on the
Tenant's interest by operation of law. Tenant shall, by written notice, advise
Landlord of its desire from and after a stated date (which shall not be less
than thirty (30) days nor more than ninety (90) days after the date of Tenant's
notice) to sublet the Premises or any portion thereof for any part of the term
hereof; and supply Landlord with such information, financial statements,
verifications and related materials as Landlord may reasonably request or
desire to evaluate the written request to sublet; and in such event (but only
if the request is for approval to assign this Lease or to sublease the entire
Premises other than in connection with an "Affiliate Transfer" as defined
below) Landlord shall have the right, to be exercised by giving written notice
to Tenant within ten (10) days after receipt of Tenant's notice and all said
information, financial statements, verifications and related materials
requested by Landlord, to terminate this Lease and such notice shall, if given,
terminate this Lease of the date stated in Tenant's notice. Said notice by
Tenant shall state the name and address of the proposed subtenant, and Tenant
shall deliver to Landlord a true and complete copy of the proposed sublease
with said notice. If Landlord shall give said termination notice, this Lease
shall terminate on the date stated in Tenant's notice. If Landlord, upon
receiving said notice by Tenant with respect to the Premises, shall not
exercise its right to terminate, or if Landlord does not have such right,
Landlord may withhold or grant its consent to Tenant's subletting the Premises
specified in said notice, which consent shall not be unreasonably withheld,
conditioned or delayed. Tenant shall, at Tenant's own cost and expense,
discharge in full any commissions which may be due and owing as a result of any
proposed assignment or subletting, whether or not the Lease is terminated
pursuant hereto and rented by Landlord to the proposed subtenant or any other
tenant. Tenant agrees to pay to Landlord, promptly after request therefor, (i)
the amount of all reasonable attorneys' fees and expenses actually incurred by
Landlord in connection with any assignment or subletting issues or review of
documentation relating thereto, and (ii) $1,000.00 as an administrative fee for
Landlord's time and effort in connection with any assignment or subletting
issues.
(b) Any subletting or assignment hereunder by Tenant shall not
result in Tenant being released or discharged from any liability under this
Lease unless (and then only to the extent) Landlord elects to terminate this
Lease as provided in Paragraph 9(a) above. As a condition to Landlord's prior
written consent as provided for in this paragraph, the assignee or subtenant
shall agree in writing to comply with and be bound by all of the terms,
covenants, conditions, provisions and agreements of this Lease, and Tenant
shall deliver to Landlord promptly after execution, an executed copy of each
sublease or assignment and an agreement of said compliance by each sublessee or
assignee. Notwithstanding any provision to the contrary contained herein, any
subletting or assignment by Tenant hereunder (other than an Affiliate Transfer,
as hereinafter defined) shall result in all rights of first refusal, rights of
first offer, rights to expand, and renewal options granted herein being
forfeited by Tenant and its assignee or subtenant. Tenant expressly
acknowledges that Landlord intends for all of such rights to be personal and
exclusive to Tenant, and that such rights are not subject to transfer to any
other party (other than an Affiliate, as hereinafter defined).
(c) Landlord's consent to any sale, assignment, encumbrance,
subletting, occupation, lien or other transfer shall not release Tenant from
any of Tenant's obligations hereunder or be deemed to be a consent to any
subsequent occurrence. Any sale, assignment, encumbrance, subletting,
occupation, lien or other transfer of this Lease which does not comply with the
provisions of this Paragraph 9 shall be void.
9
(d) For purposes of this Section, an assignment of stock or other
direct or indirect ownership interest in Tenant which constitutes a controlling
interest in Tenant shall be deemed an assignment within the meaning of and be
governed by this Section.
(e) Notwithstanding any provision contained herein, Tenant agrees
that it shall not sell, assign, encumber or otherwise transfer by operation of
law or otherwise this Lease or any interest herein, or sublet the Premises or
any portion thereof, to any tenant who currently leases space in the Building,
unless other space in the Building for such tenant is not then available.
(f) [Intentionally omitted.]
(g) In the event that Tenant sells, sublets, assigns or transfers
this Lease, Tenant shall pay to Landlord as additional rent an amount equal to
fifty percent (50%) of any Increased Rent (as defined below) when and as such
Increased Rent is received by Tenant. As used in this paragraph, "Increased
Rent" shall mean the excess of (i) all rent and other consideration which
Tenant is entitled to receive by reason of any sale, sublease, assignment or
other transfer of this Lease, less any reasonable costs incurred by Tenant in
connection with the sale, sublease, assignment or transfer for tenant
improvements, brokerage commissions, and legal fees, over (ii) the rent
otherwise payable by Tenant under this Lease at such time. For purposes of the
foregoing, any consideration received by Tenant in form other than cash shall
be valued at its fair market value.
(h) Notwithstanding anything to the contrary above in this
Paragraph 9, it is understood and agreed to by Landlord and Tenant that: (i)
Landlord's consent shall not be unreasonably withheld, conditioned or delayed
in connection with any proposed transfer to any assignee or sublessee who is
comparable in quality to other tenants in the Building or other class "A"
buildings in the Northwest Atlanta office submarket and who will use the
Premises or portion thereof being transferred in a manner generally comparable
to the use of comparable space in the Building or other class "A" buildings by
comparable tenants in the Northwest Atlanta office submarket; and (ii)
Landlord's consent shall not be necessarily required in connection with any
assignment, sublease or other transfer (collectively, an "Affiliate Transfer")
to any of the following (collectively, an "Affiliate"): any firm, corporation,
partnership, limited liability company or other person or entity now or
hereafter in control of , controlled by or controlled with Tenant; or into
which or with which Tenant shall now or hereafter merge or consolidate; or
which now or hereafter acquires all or substantially all of the assets of
Tenant; provided, however, that if Tenant shall not survive any such Affiliate
Transfer as a separate and ongoing business entity, the then creditworthiness
of any successor to Tenant must be at least substantially equal to the then
creditworthiness of Tenant, as reasonably determined by Landlord. Landlord
further agrees that Landlord's right to elect to terminate the lease as set
forth in Paragraph 9(a) in connection with any proposed assignment, sublease or
other transfer shall be inapplicable with respect to any Affiliate Transfer.
10. INSURANCE AND INDEMNIFICATION.
(a) Landlord shall not be liable to Tenant and Tenant hereby
waives all claims against Landlord for any injury or damages to any person or
property in or about the Premises by or from any cause whatsoever, other than
the gross negligence or willful misconduct of Landlord, its agents, employees
or contractors, without limiting the generality of the foregoing, whether
caused by water leakage of any character from the roof, walls, basement, or
other portion of the Premises or the Building, or caused by gas, fire, or
explosion of the Building or the complex of which it is a part or any part
thereof.
(b) Tenant shall hold Landlord harmless from and defend and
indemnify Landlord against any and all claims or liability for any injury or
damage to any person or property whatsoever: (i) occurring in, on or about the
Premises or any part thereof other than the gross negligence or willful
misconduct of Landlord, its agents, employees or contractors; or (ii) occurring
in, on, or about any facilities (including, without limitation, elevators,
stairways, passageways or hallways), the use of which Tenant may have in
conjunction with other tenants of the Building, when such injury or damage
under this clause (ii) shall be caused in part or in whole by the gross
negligence or willful misconduct of Tenant or its agents, servants, employees,
or contractors. Tenant further agrees to indemnify, defend and save harmless
Landlord against and from any and all claims in any manner relating to any work
or thing whatsoever done by Tenant in or about, or any transactions of Tenant
concerning, the Premises, and will further indemnify, defend and save Landlord
harmless against and from any and all claims arising from any breach or default
on the part of Tenant in the performance of any covenant or agreement on the
part of Tenant to be performed pursuant to the terms of this Lease, or arising
from any act or negligence of Tenant, or any of its agents, contractors,
servants, employees and licensees, and from and against all costs, counsel
fees, expenses and liabilities incurred in connection with any such claim or
action or proceeding brought thereon. Furthermore, in case any action or
proceeding be brought against Landlord by reason of any claims or liability for
which Tenant is liable hereunder, Tenant agrees to defend such action or
proceeding at Tenant's sole expense by counsel reasonably satisfactory to
Landlord. The provisions of this Lease with respect to any claims or liability
occurring prior to the termination or expiration of this Lease shall expressly
survive such termination or expiration of this Lease.
(c) Landlord shall hold Tenant harmless from and defend and
indemnify Tenant against any and all claims or liabilities for any injury or
damage to any person or property whatsoever occurring in, on or about the
Building or the Property (excluding the Premises, unless relating to Landlord's
entry into the Premises) to the extent such injury or damage shall be caused in
part or in whole by (i) the negligent acts or omissions of Landlord or
Landlord's agents, servants, employees, or contractors, or (ii) any breach or
default on the part of Landlord in the performance of any covenant or agreement
on the part of Landlord to be performed pursuant to the terms of this Lease.
The indemnifications by Landlord set forth in this Paragraph 10(c) are subject
to any limitations contained in
10
Paragraph 11 or elsewhere in this Lease. Furthermore, in case any action or
proceeding be brought against Tenant by reason of any claims or liability,
Landlord agrees to defend such action or proceeding at Landlord's sole expense
by counsel reasonably satisfactory to Tenant. The provisions of this Lease with
respect to any claims or liability occurring prior to the termination or
expiration of this Lease shall expressly survive such termination or expiration
of this Lease.
(d) Tenant agrees to purchase at its own expense and to keep in
force during the term of this Lease all insurance coverages required by
Landlord to be maintained by tenants in the Building, including, but not
limited to, the policies of insurance specified on Exhibit "G" attached to this
Lease.
(e) Landlord shall maintain in force, at its sole cost and
expense (but subject to reimbursement as Direct Operating Expenses), "All Risk"
(sometimes known as "Special Causes of Loss") property insurance, covering the
Building, for not less than its full replacement cost. Such insurance may
include such other coverages, such as rental interruption insurance, as
Landlord may deem reasonably necessary, and may contain an endorsement naming
Landlord's mortgagee as loss payee, as its interests may appear. Landlord shall
maintain in force, at its sole cost and expense (but subject to reimbursement
as Direct Operating Expenses), a policy or policies of comprehensive general
liability insurance, including personal injury and property damage, in the
amount of at least Two Million and No/100 Dollars ($2,000,000.00) for property
damage and personal injuries or deaths of persons occurring or about the
Property.
11. WAIVER OF SUBROGATION.
Each of Landlord and Tenant hereby releases the other from any and all
liability or responsibility to the other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any other perils insured in policies of insurance covering
such property, even if such loss or damage shall have been caused by the fault
or negligence of the other party, or anyone for whom such party may be
responsible, including any other tenants or occupants of the remainder of the
Building in which the Premises are located; provided, however, that this
release shall be applicable and in force and effect only to the extent that
such release shall be lawful at that time. Each of Landlord and Tenant agrees
that it will request its insurance carriers to include in its policies a clause
or endorsement to the effect that any such release shall not adversely affect
or impair said policies or prejudice the right of the releasor to coverage
thereunder. If either party fails to maintain in effect throughout the term
hereof the insurance required hereunder or to cause its insurance policies to
include such a clause or endorsement, the terms and provisions of this Lease
shall nevertheless be read and construed and applied as if such a party had in
effect self insurance covering the loss or claim in question to the same extent
such loss or claim would have been covered if such party procured and
maintained the required insurance hereunder.
12. SERVICE AND UTILITIES.
(a) Landlord shall maintain all public and common areas of the
Building, Property and Project, including without limitation lobbies, stairs,
elevators, corridors, common area restrooms, sidewalks, landscaped areas,
roadways, parking and exterior lighting, the windows in the Building, the
mechanical, plumbing and electrical equipment serving the Building, and the
roof, walls, windows and balance of the structure itself, in a manner
consistent with other Class "A" office buildings in the Northwest Atlanta
submarket and otherwise in a first-class order and condition except for damage
occasioned by the gross negligence or willful misconduct of Tenant, which
damage shall be repaired by Landlord at Tenant's expense. Landlord shall comply
with all applicable provisions of Paragraph 16 of this Lease in connection with
any such maintenance or repair by Tenant. In the event Tenant requires or needs
to have one or more separate systems of either heating, ventilating, air
conditioning or other similar systems over and above that provided by Landlord,
the installation, care, expenses and maintenance of each such system shall be
borne by and paid for by Tenant.
(b) Provided the Tenant shall not be in uncured default
hereunder, and subject to the provisions elsewhere herein contained and to the
rules and regulations of the Building, Landlord agrees to furnish to the
Premises during ordinary business hours of generally recognized business days,
to be determined by Landlord (but exclusive, in any event, of Sundays and legal
holidays, and including, in any event the hours 8:00 a.m. until 6:00 p.m.
Mondays-Fridays and on Saturdays from 8:00 a.m. until 1:00 p.m.), heat and
air-conditioning required in Landlord's judgment for the comfortable use and
occupation of the Premises (which shall, at a minimum, be able to maintain plus
or minus 2(degree)F based upon the local conditions specified in the ASHRAE
Handbook of Fundamental as applicable to Atlanta, Georgia), replacement of
bulbs for building standard fluorescent lights and non-building standard
lights, provided Tenant stocks the bulbs for all of Tenant's non-building
standard lights, janitorial services during the times and in the manner that
such services are, in Landlord's reasonable judgment, customarily furnished in
comparable Class "A" office buildings in the Northwest Atlanta submarket, and
elevator service (including, at a minimum at all times, at least one (1)
passenger elevator providing service to all of the floors comprising a part of
the Premises), on-site Building management services, 24/7 Building security
services (on-site, except that after hours security may be provided by persons
not continuously in the Building, but rather serving the Galleria complex
generally), on-site Building engineers and day ▇▇▇▇▇▇ services.
Landlord agrees to provide additional or after-hours heating or
air-conditioning at Tenant's request, for which Tenant shall pay to Landlord a
reasonable hourly charge for such services as determined from time to time by
Landlord and billed by Landlord to Tenant monthly in arrears. The initial
hourly charge for such after-hours heating or air conditioning services shall
be no more than $40.00 per hour through calendar year 2003, and shall
thereafter be subject to adjustment by Landlord on an annual basis so as to
reasonably reflect the cost of providing such services. Tenant also agrees at
all times to abide by all the reasonable, uniformly applicable regulations and
requirements which Landlord may prescribe for the proper functioning and
protection of said heating, ventilating,
11
and air-conditioning system and to comply with all laws, ordinances and
regulations respecting the conservation of energy. Wherever heat-generating
machines, excess lighting or equipment are used in the Premises which affect
the temperature otherwise maintained by the air-conditioning system in
connection with normal business office use, Landlord reserves the right to
install supplementary air conditioning units in the Premises, and the cost
thereof, including the cost of electricity and/or water therefor, shall be paid
by Tenant to Landlord upon demand by Landlord. Landlord may notify Tenant if
any additional or supplementary air conditioning units are anticipated to be
needed for the Premises during the design and plan approval process in
accordance with the Work Letter Agreement. Landlord agrees to furnish to the
Premises electricity for general office purposes and water for lavatory and
drinking purposes, subject to the provisions of subparagraph 12(c) below.
Landlord shall in no event be liable for any interruption or failure of utility
services on the Premises, unless caused by or resulting from the gross
negligence or willful misconduct of Landlord, its agents, employees or
contractors, but Landlord will exercise due diligence to furnish uninterrupted
service.
(c) Tenant will not without the written consent of Landlord use
any apparatus or device in the Premises, including without limitation,
electronic data processing machines, computers, and machines using excess
lighting or current which will in any way materially increase the amount of
electricity or water usually furnished or supplied for use of the Premises as
general office space; nor connect with electric current, except through
existing electrical outlets in the Premises, or water pipes, any apparatus or
device for the purposes of using electrical current or water. If Tenant in
Landlord's judgment shall require water or electric current or any other
resource in excess of that usually furnished or supplied for use of the
Premises as general office space (it being understood that such an excess may
result from the number of fixtures, apparatus and devices in use, the nature of
such fixtures, apparatus and devices, the hours of use, or any combination of
such factors), and Landlord may cause a special meter to be installed in the
Premises so as to measure the amount of water, electric current or other
resource consumed for any such other use. Landlord may notify Tenant if any
additional or supplementary air conditioning units are anticipated to be needed
for the Premises during the design and plan approval process in accordance with
the Work Letter Agreement. The cost of any such meters and of installation,
maintenance, and repair thereof shall be paid for by Tenant, and Tenant agrees
to pay Landlord promptly upon demand by Landlord for all such water, electric
current or other resource consumed, as shown by said meters, at the rates
charged by the local public utility furnishing the same, plus any reasonable
additional expense incurred in keeping account of the water, electric current
or other resource so consumed. Landlord shall not be in default hereunder or be
liable for any damages directly or indirectly resulting from, nor shall the
rental herein reserved be abated by reason of (i) the installation, use or
interruption of use of any equipment in connection with the furnishing of any
of the foregoing utilities and services, (ii) failure to furnish or delay in
furnishing any such utilities or services when such failure or delay is caused
by acts of God or the elements, labor disturbances of any character, any other
accidents or other conditions beyond the reasonable control of Landlord, or by
the making of repairs or improvements to the Premises or to the Building, (iii)
the limitation, curtailment, rationing or restriction on use of water or
electricity, gas or any other form of energy or any other service utility
whatsoever serving the Premises or the Building. Notwithstanding the foregoing,
if the Premises, or a material portion thereof, is made untenantable for a
period in excess of seven (7) consecutive business days as a result of any
interruption or failure of services, then Tenant, as its sole remedy, shall be
entitled to receive an abatement of Rent payable hereunder during the period
beginning on the eighth (8th) consecutive day of such untenantability and
ending on the day that the Premises or portion thereof in question has been
rendered tenantable. Furthermore, Landlord shall be entitled to cooperate
voluntarily in a reasonable manner with the efforts of national, state or local
governmental agencies or utilities suppliers in reducing energy or other
resources consumption.
(d) Any sums payable under this Paragraph 12 shall be considered
additional rent and may be added to any installment of rent thereafter becoming
due, and Landlord shall have the same remedies for an uncured default in
payment of such sums as for a default in the payment of rent.
(e) Tenant shall not provide any janitorial services without
Landlord's written consent and then only subject to supervision of Landlord and
by a janitorial contractor or employees at all times satisfactory to Landlord.
Any such services provided by Tenant shall be at Tenant's sole risk and
responsibility.
13. ESTOPPEL CERTIFICATE.
Within ten (10) days following the Commencement Date or any written
request which either party may make from time to time, the party receiving such
request shall execute and deliver to the other party a certificate
substantially in the form attached hereto as Exhibit "C" and made a part
hereof, indicating thereon any exceptions thereto which may exist at that time.
Failure to execute and deliver such certificate shall constitute a default
hereunder or constitute an acceptance of the Premises and acknowledgment that
the statements included in Exhibit "C", as completed and sent by the requesting
party, are true and correct without exception. Landlord and Tenant intend that
any statement delivered pursuant to this paragraph may be relied upon by
Landlord and Tenant, and by any mortgagee, beneficiary, purchaser or
prospective purchaser of the Building or any interest therein, or by any
assignee, sublessee, transferee, purchaser or lender of Tenant, or anyone to
whom Landlord or Tenant may provide said certificate.
14. HOLDING OVER.
Tenant will, at the termination of this Lease by lapse of time or
otherwise, yield up immediate possession to Landlord. If Tenant retains
possession of the Premises or any part thereof after such termination, then
Landlord may, at its option, serve written notice upon Tenant that such holding
over constitutes any one of (i) creation of a month to month tenancy, upon the
terms and conditions set forth in this Lease, or (ii) creation of a tenancy of
sufferance, in any case upon the terms and conditions set forth in this Lease;
provided, however, that the monthly base rental (or daily rental under (ii))
shall, in addition to all other sums which are to be paid by Tenant hereunder,
12
whether or not as additional rent, be equal to one hundred fifty percent (150%)
of the base rental being paid monthly to Landlord under this Lease immediately
prior to such termination (prorated in the case of (ii) on the basis of a 365
day year for each day Tenant remains in possession), and, in addition thereto,
Tenant shall also pay the then current amount of additional rent due and
payable in accordance with this Lease. If no such notice is served, then a
tenancy at sufferance shall be deemed to be created at the rent in the
preceding sentence. The provisions of this paragraph shall not constitute a
waiver by Landlord of any right of reentry as herein set forth; nor shall
receipt of any rent or any other act in apparent affirmance of the tenancy
operate as a waiver of the right to terminate this Lease for a breach of any of
the terms, covenants, or obligations herein on Tenant's part to be performed.
Provided that Tenant is not then in uncured default and has given to Landlord
at least twelve (12) months' prior written notice of Tenant's intention to do
so, Tenant shall have the right to elect to holdover for a period of three (3)-
months, with such holdover occupancy otherwise being subject to the terms and
conditions specified in this Section 14. If Tenant gives such holdover notice
to Landlord, then Tenant shall be liable for holdover rent for such entire
three (3)-month period, regardless of whether or not Tenant actually holds over
or remains in occupancy of the Premises or any portion thereof for such entire
three (3)-month period.
15. SUBORDINATION.
Without the necessity of any additional document being executed by
Tenant for the purpose of effecting a subordination, this Lease shall be
subject and subordinate at all times to any of the following (collectively, a
"Mortgage"): (a) all ground leases or underlying leases which may now exist or
hereafter be executed affecting the Building, the land upon which the Building
or any common areas are situated, and (b) the lien or interest of any mortgage
or deed to secure debt which may now exist or hereafter be executed in any
amount for which said Building, land, ground leases or underlying leases, or
Landlord's interest or estate in any of said items is specified as security.
Notwithstanding the foregoing, Landlord shall have the right to subordinate or
cause to be subordinated any such Mortgages or deeds to secure debt to this
Lease. In the event that any Mortgage terminates for any reason or any Mortgage
is foreclosed or a conveyance in lieu of foreclosure is made for any reason,
Tenant shall, notwithstanding any subordination, attorn to and become the
Tenant of the successor in interest to Landlord at the option of such successor
in interest. Tenant agrees to execute such non-disturbance and attornment
agreements as the holder of any mortgage or deed to secure debt on the Building
may reasonably require. Tenant covenants and agrees to execute and deliver,
upon demand by Landlord and in the form requested by Landlord, any additional
documents evidencing the priority or subordination of this Lease with respect
to any such Mortgage. Notwithstanding any provisions to the contrary herein,
Landlord shall obtain for the benefit of Tenant a non-disturbance agreement
from the holder of any Mortgage superior to Tenant's rights under this Lease,
on such commercially standard form as customarily used by such holder, as a
condition precedent to Tenant's obligation to subordinate to any such Mortgage
and/or to attorn to any such successor in interest to Landlord. Such
non-disturbance agreement shall, among other things, provide that, provided
Tenant is not in uncured default under this Lease, any successor in interest to
Landlord by reason of termination of any Mortgage or foreclosure or conveyance
in lieu of foreclosure of any Mortgage shall recognize this Lease and Tenant's
right of quiet enjoyment with respect to the Premises, and shall provide that
this Lease and Tenant's possession and quiet enjoyment of the Premises shall
not be interfered with or disturbed except in the event of an uncured default
by Tenant hereunder.
16. RE-ENTRY BY LANDLORD.
Landlord reserves and shall at all times have the right to re-enter
the Premises to inspect the same, to supply janitor service and any other
service to be provided by Landlord to Tenant hereunder, to show said Premises
to prospective purchasers, mortgagees or tenants, to post notices of
nonresponsibility, and to alter, improve, or repair the Premises and any
portion of the Building of which the Premises are a part or to which access is
conveniently made through the Premises, without abatement of rent, and may for
that purpose erect, use, and maintain scaffolding, pipes, conduits, and other
necessary structures in and through the Premises where reasonably required by
the character of the work to be performed, provided that entrance to the
Premises shall not be blocked thereby, and further provided that the business
of Tenant shall not be interfered with unreasonably. All routine maintenance by
Landlord shall be performed after normal business hours except that work in the
mechanical room on each floor of the Premises shall be permitted during normal
business hours. Tenant hereby waives any claim for damages for any injury or
inconvenience to or interference with Tenant's business, any loss of occupancy
or quiet enjoyment of the Premises, and any other loss occasioned thereby
unless caused by or resulting from the gross negligence or willful misconduct
of Landlord, its agents, employees or contractors. For each of the aforesaid
purposes, Landlord shall at all times have and retain a key with which to
unlock all of the doors, in, upon, and about the Premises, and Landlord shall
have the right to use any and all means which Landlord may deem reasonably
necessary or proper to open said doors in an emergency, in order to obtain
entry to any portion of the Premises, and any entry to the Premises, or
portions thereof obtained by Landlord by any of said means, or otherwise, shall
not under any circumstances be construed or deemed to be a forcible or unlawful
entry into, or a detainer of, the Premises, or an eviction, actual or
constructive, of Tenant from the Premises or any portions thereof. Landlord
shall also have the right at any time, without the same constituting an actual
or constructive eviction and without incurring any liability to Tenant
therefor, to change the arrangement and/or location of entrances or passage
ways, doors and doorways, and corridors, elevators, stairs, toilets, or other
public parts of the Building and to change the name, number or designation by
which the Building is commonly known. Except in the event of emergencies or for
the provision of routine services, Landlord agrees to provide Tenant with at
least twenty-four (24) hours' prior oral notification of its intention to enter
the Premises for any of the purposes described above, and agrees that Tenant
shall have the right to have a representative of Tenant accompany Landlord, its
agents, employees or contractors at any time while they are within the Premises
for any of such purposes.
13
17. INSOLVENCY OR BANKRUPTCY.
The appointment of a receiver to take possession of all or
substantially all of the assets of Tenant, or an assignment of Tenant for the
benefit of creditors, or any action taken or suffered by Tenant under any
insolvency, bankruptcy, or reorganization act, shall at Landlord's option
constitute a breach of this Lease by Tenant. Upon the happening of any such
event or at any time thereafter, this Lease shall terminate five (5) days after
written notice of termination from Landlord to Tenant. In no event shall this
Lease be assigned or assignable by operation of law or by voluntary or
involuntary bankruptcy proceedings or otherwise and in no event shall this
Lease or any rights or privileges hereunder be an asset of Tenant under any
bankruptcy, insolvency, or reorganization proceedings.
18. DEFAULT AND REMEDIES.
The following events shall be deemed to be events of default or an
"uncured default" by Tenant under this Lease:
(a) Tenant shall fail to pay when or before due any sum of money
becoming due to be paid to Landlord hereunder, whether such sum be any
installment of the rent herein reserved, any other amount treated as additional
rent hereunder, or any other payment or reimbursement to Landlord required
herein, whether or not treated as additional rent hereunder, and such failure
shall continue for a period of five (5) business days after written notice of
failure from Landlord to Tenant; provided, however, notwithstanding the
foregoing, Landlord shall not be required to give such notice to Tenant more
than two (2) times in any consecutive twelve (12)-month period with respect to
Tenant's obligation to make any monetary payment under this Lease, and after
Landlord shall have given two (2) such notices in any given consecutive twelve
(12)-month period, Tenant shall not be entitled to any notice or cure period
for any subsequent default within such consecutive twelve (12)-month period; or
(b) Tenant shall fail to comply with any term, provision or
covenant of this Lease other than by failing to pay when or before due any sum
of money becoming due to be paid to Landlord hereunder, and shall not cure such
failure within (i) twelve (12) hours after written notice to Tenant if the
failure involves a condition hazardous or dangerous to life or property or (ii)
twenty (20)-days after written notice to Tenant in the case of any other
failure; provided, however, if any such default by its nature is not reasonably
susceptible to cure within such twenty (20)-day period, and provided that
Tenant commences its efforts to cure same promptly and continues such efforts
diligently, then Tenant shall have such additional time (not to exceed 90 days)
to complete such cure as is reasonably necessary under the circumstances; or
(c) [intentionally omitted]; or
(d) Tenant shall create or allow to be created in or about the
demised Premises any condition or circumstance constituting a hazard to people
or property, a nuisance or a trespass, whether or not such condition or
circumstance rises to the level of a civil or criminal law violation or action,
and such condition or circumstance is not corrected or removed within ten (10)
days after notice from Landlord; or
(e) Tenant shall fail to vacate the Premises immediately upon
termination of this Lease, by lapse of time or otherwise, or upon termination
of Tenant's right to possession only;
(f) If, in spite of the provisions hereof, the interest of Tenant
shall be levied upon under execution or be attached by process of law or Tenant
shall fail to contest diligently the validity of any lien or claimed lien and
give sufficient security to Landlord to insure payment thereof or shall fail to
satisfy any judgment rendered thereon and have the same released, and such
default shall continue for ten (10) days after written notice thereof to
Tenant; or
(g) Tenant shall assign, sublet or transfer its interest
hereunder in violation of this Agreement.
Upon the occurrence of any such events of default described in this
paragraph or elsewhere in this Lease, Landlord shall have the option to pursue
any one or more of the following remedies without any notice or demand
whatsoever:
(aa) Landlord may, at its election, terminate this Lease
or terminate Tenant's right to possession only, without terminating
the Lease.
(bb) Upon any termination of this Lease, whether by lapse
of time or otherwise, or upon any termination of Tenant's right to
possession without termination of the Lease, Tenant shall surrender
possession and vacate the Premises immediately, and deliver possession
thereof to Landlord, and, to the extent permitted under Georgia law,
Tenant hereby grants to Landlord full and free license to enter into
and upon the Premises in such event with or without process of law and
to repossess the Premises and to expel or remove Tenant and any others
who may be occupying or within the Premises and to remove any and all
property therefrom, without being deemed in any manner guilty of
trespass, eviction or forcible entry or detainer, and without
incurring any liability for any damage resulting therefrom; Tenant
hereby waiving any right to claim damage for such reentry and
expulsion, and without relinquishing Landlord's right to rent or any
other right given to Landlord hereunder or by operation of law.
(cc) Upon termination of this Lease, whether by lapse of
time, by or in connection with a dispossessory proceeding or
otherwise, Landlord shall be entitled to recover as Landlord's actual
accrued damages, all rent, including any amount treated as additional
rent hereunder, and other sums due and
14
payable by Tenant on the date of termination, plus, as Landlord's
liquidated damages for the balance of the stated term hereof and not
as a forfeiture or penalty, the sum of: (i) an amount equal to the
then present value of the rent, including any amounts treated as
additional rent hereunder, and other sums provided herein to be paid
by Tenant for the residue of the stated term hereof, less the fair
rental value of the Premises for such residue (taking into account the
time and expenses necessary to obtain a replacement tenant or tenants,
including expenses hereinafter described in subparagraph (dd)(ii)
relating to recovery of the Premises, preparation for reletting and
for reletting itself), and (ii) an amount equal to the present value
of the cost of performing any other covenants which would have
otherwise been performed by Tenant. Notwithstanding any provisions in
this Paragraph 18 or elsewhere in this Lease to the contrary, Landlord
agrees to use commercially reasonable efforts to relet the Premises
upon the occurrence of an event of default by Tenant and Tenant's
vacating of the Premises; provided, however, that in no event shall
Landlord be required to lease all or any portion of the Premises, or
to seek to lease all or any portion of the Premises, if other space is
then available in the Building or in other buildings in the Galleria
complex of which the Building is a part and which are under common
ownership or management with the Building.
(dd) (i) Upon termination of the Lease or Tenant's
right to possession of the demised Premises, regardless of
whether such termination occurs as a result of a dispossessory
proceeding, distraint proceeding, exercise of right of
termination, re-entry, lease expiration or otherwise, Tenant
shall remain liable for payment of all rent thereafter
accruing and for performance of all obligations thereafter
performable under this Lease. Landlord may, at Landlord's
option, enter the Premises, remove Tenant's signs and other
evidences of tenancy, and take and hold possession thereof as
provided in subparagraph (bb) above, without such entry and
possession releasing Tenant from any obligation, including
Tenant's obligation to pay rent, including any amounts treated
as additional rent, hereunder for the full term of the Lease.
(ii) Landlord may, but need not, relet the
Premises or any part thereof for such rent and upon such
terms as Landlord in its sole discretion shall determine
(including the right to relet the Premises for a greater or
lesser term than that remaining under this Lease, the right
to relet the Premises as a part of a larger area, and the
right to change the character and use made of the Premises)
and Landlord shall not be required to accept any tenant
offered by Tenant or to observe any instructions given by
Tenant about such reletting. In any such case, Landlord may
make repairs, alterations and additions in or to the
Premises, and redecorate the same to the extent Landlord
deems necessary or desirable, and Tenant shall, upon demand,
pay the cost thereof, together with Landlord's expenses for
reletting, including, without limitation, any broker's
commission incurred by Landlord. If the consideration
collected by Landlord upon any such reletting plus any sums
previously collected from Tenant are not sufficient to pay
the full amount of all rent, including any amounts treated as
additional rent hereunder and other sums reserved in this
Lease for the remaining term hereof, together with the costs
of repairs, alterations, additions, redecorating, and
Landlord's expenses of reletting and the collection of the
rent accruing therefrom (including attorneys' fees and
broker's commissions), Tenant shall pay to Landlord, as
Landlord's liquidated damages and not as a forfeiture or
penalty, the amount of such deficiency upon demand and Tenant
agrees that Landlord may file suit to recover any sums
falling due under this section from time to time.
(ee) Landlord may, at Landlord's option, enter into and
upon the Premises, with or without process of law, if Landlord
determines in its sole discretion that Tenant is not acting within a
commercially reasonable time to maintain, repair or replace anything
for which Tenant is responsible hereunder, and correct the same,
without being deemed in any manner guilty of trespass, eviction or
forcible entry and detainer and without incurring any liability for
any damage resulting therefrom, and Tenant agrees to reimburse
Landlord, on demand, as additional rent, for any reasonable expenses
which Landlord may incur in thus effecting compliance with Tenant's
obligations under this Lease.
(ff) Any and all property which may be removed from the
Premises by Landlord pursuant to the authority of the Lease or of law,
to which Tenant is or may be entitled, may be handled, removed and
stored, as the case may be, by or at the direction of Landlord at the
risk, cost and expense of Tenant, and Landlord shall in no event be
responsible for the value, preservation or safekeeping thereof. Tenant
shall pay to Landlord, upon demand, any and all reasonable expenses
incurred in such removal and all storage charges against such property
so long as the same shall be in Landlord's possession or under
Landlord's control. Any such property of Tenant not retaken by Tenant
from storage within thirty (30) days after removal from the Premises
shall, at Landlord's option, be deemed conveyed by Tenant to Landlord
under this Lease as by a ▇▇▇▇ of sale without further payment or
credit by Landlord to Tenant.
Pursuit of any of the foregoing remedies shall not preclude pursuit of
any of the other remedies herein provided or any other remedies provided by law
or available in equity (all such remedies being cumulative), nor shall pursuit
of any remedy herein provided constitute a forfeiture or waiver of any rent due
to Landlord hereunder or of any damages accruing to Landlord by reason of the
violation of any of the terms, provisions and covenants herein contained. No
act or thing done by Landlord or its agents during the term hereby granted
shall be deemed a termination of this Lease or an acceptance of the surrender
of the Premises, and no agreement to terminate this Lease or accept a surrender
of said Premises shall be valid unless in writing signed by Landlord. No waiver
by Landlord of any violation or breach of any of the terms, provisions and
covenants herein contained shall be deemed or construed to constitute a waiver
of any other violation or breach of any of the terms, provisions and covenants
herein contained. Landlord's acceptance of the payment of rental or other
payments hereunder after the occurrence of an event of default shall not be
construed as a waiver of such default, unless Landlord so notifies Tenant in
writing.
15
Forbearance by Landlord in enforcing 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 or of Landlord's right to enforce any such
remedies with respect to such default or any subsequent default. If, on account
of any breach or default by Tenant in Tenant's obligations under the terms and
conditions of this Lease, it shall become necessary or appropriate for Landlord
to employ or consult with an attorney concerning or to enforce or defend any of
Landlord's rights or remedies hereunder, Tenant agrees to pay reasonable actual
attorneys' fees so incurred.
Without limiting the foregoing, to the extent permitted by law, Tenant
hereby: (i) appoints and designates the Premises as a proper place for service
of process upon Tenant, and agrees that service of process upon any corporate
officer of Tenant upon the Premises or, in the event that Tenant has vacated or
abandoned the Premises, leaving process in a conspicuous place within the
Premises shall constitute personal service of such process upon Tenant
(provided, however, Landlord does not hereby waive the right to serve Tenant
with process by any other lawful means); (ii) expressly waives any right to
trial by jury; and (iii) expressly waives the service of any notice under any
existing or future law of the State of Georgia applicable to landlords and
tenants.
19. DAMAGE BY FIRE, ETC.
(a) If the Building, improvements, or Premises are rendered
partially or wholly untenantable by fire or other casualty, and if such damage
cannot, in Landlord's reasonable estimation, be materially restored within one
hundred eighty (180) days of such damage, then either party may, at its sole
option, terminate this Lease as of the date of such fire or casualty. Landlord
shall exercise its option provided herein by written notice to Tenant within
sixty (60) days of such fire or other casualty. Tenant shall exercise its
option provided herein by written notice to Landlord within ten (10) business
days after receipt of Landlord's notice setting forth the estimated repair
period for such damages. For purposes hereof, the Building, improvements, or
Premises shall be deemed "materially restored" if they are in such condition as
would not prevent or materially interfere with Tenant's use of the Premises for
the purpose for which it was then being used.
(b) If this Lease is not terminated pursuant to Paragraph 19(a),
then to the extent of available insurance proceeds, Landlord shall proceed with
all due diligence to repair and restore the Building, improvements or Premises,
as the case may be (except that Landlord may elect not to rebuild if such
damage occurs during the last year of the term of this Lease exclusive of any
option which is unexercised at the date of such damage).
(c) If this Lease shall be terminated pursuant to this Paragraph
19, the term of this Lease shall end on the date of such damage as if that date
had been originally fixed in this Lease for the expiration of the term hereof.
If this Lease shall not be terminated pursuant to this Paragraph 19 and if the
Premises is untenantable in whole or in part following such damage, the rent
payable during the period in which the Premises is untenantable shall be
reduced to such extent, if any, as may be fair and reasonable under all of the
circumstances. In the event that Landlord shall fail to complete such repairs
and material restoration within two hundred ten (210) days after the date of
such damage, Tenant may at its option and as its sole remedy terminate this
Lease by delivering not less than thirty (30) days' prior written notice and
opportunity to cure to Landlord, whereupon the Lease shall end on the date of
such notice as if the date of such notice were the date originally fixed in
this Lease for the expiration of the term hereof; provided, however, that if
construction is delayed because of changes, deletions, or additions in
construction requested by Tenant, strikes, lockouts, casualties, acts of God,
war, material or labor shortages, governmental regulation or control or other
causes beyond the reasonable control of Landlord, the period for restoration,
repair or rebuilding shall be extended for the amount of time Landlord is so
delayed.
In no event shall Landlord be required to rebuild, repair or replace
any part of the partitions, fixtures, additions or other improvements which may
have been placed in or about the Premises by Tenant after the Commencement Date
hereof. Any insurance which may be carried by Landlord or Tenant against loss
or damage to the Building or Premises shall be for the sole benefit of the
party carrying such insurance and under its sole control except that Landlord's
insurance may be subject to control by (i) the holder or holders of any
indebtedness secured by a mortgage or deed to secure debt covering any interest
of Landlord in the Premises, the Building, or the Property, and/or (ii) the
ground lessor of any portion of the Property.
(d) Notwithstanding anything herein to the contrary, in the event
the holder of any indebtedness secured by a mortgage or deed to secure debt
covering the Premises, Building or Property, or the ground lessor of the
Property, requires that any insurance proceeds be paid to it, then Landlord
shall have the right to terminate this Lease by delivering written notice of
termination to Tenant within fifteen (15) days after such requirement is made
by any such person, provided that Landlord is concurrently terminating the
leases of all or substantially all other tenants in the Building, whereupon the
Lease shall end on the date of such damage as if the date of such damage were
the date originally fixed in this Lease for the expiration of the term.
(e) In the event of any damage or destruction to the Building or
the Premises by any peril covered by the provisions of this Paragraph 19,
Tenant shall, upon notice from Landlord, remove forthwith, at its sole cost and
expense, such portion or all of the property belonging to Tenant or its
licensees from such portion or all of the Building or the Premises as is
reasonably necessary in order to permit Landlord to cause the repairs to be
made and as Landlord shall request and Tenant hereby indemnifies, defends and
holds Landlord harmless from any loss, liability, costs, and expenses,
including attorneys' fees, arising out of any claim of damage or injury as a
result of such removal and any alleged failure to properly secure the Premises
prior to such removal.
16
20. CONDEMNATION.
(a) If any substantial part of the Premises should be taken for
any public or quasi-public use under governmental law, ordinance or regulation,
or by right of eminent domain, or by private purchase in lieu thereof, and the
taking would prevent or materially interfere with the use of the Premises for
the purpose for which it is then being used, this Lease shall terminate
effective when the physical taking shall occur in the same manner as if the
date of such taking were the date originally fixed in this Lease for the
expiration of the term hereof. As used herein, "substantial part" shall mean
more than twenty percent (20%).
(b) If part of the Premises shall be taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain, or by private purchase in lieu thereof, and this Lease
is not terminated as provided in the subparagraph above, this Lease shall not
terminate but the rent payable hereunder during the unexpired portion of this
Lease shall be reduced to such extent, if any, as may be fair and reasonable
under all of the circumstances and Landlord shall undertake to restore the
Premises to a condition suitable for Tenant's use, as near to the condition
thereof immediately prior to such taking as is reasonably feasible under all
circumstances.
(c) Tenant shall not share in any condemnation award or payment
in lieu thereof or in any award for damages resulting from any grade change of
adjacent streets, the same being hereby assigned to Landlord by Tenant;
provided, however, that Tenant may separately claim (or, if required to
preserve such claim, may make such claim in Landlord's condemnation proceeding)
and receive from the condemning authority, if legally payable, compensation for
Tenant's removal and relocation costs and for Tenant's loss of business and/or
business interruption.
(d) Notwithstanding anything to the contrary contained in this
paragraph, if the temporary use or occupancy of any part of the Premises shall
be taken or appropriated under power of eminent domain during the term of this
Lease, 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 term of this Lease; 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 use of or occupancy
of the Premises during the term of this Lease, and Landlord shall be entitled
to receive that portion of any award which represents the cost of restoration
of the Premises and the use and occupancy of the Premises after the end of the
term of this Lease.
21. SALE BY LANDLORD.
In the event of a sale or conveyance by Landlord of the Building,
then, provided that the purchaser or transferee from Landlord assumes in
writing all of the Landlord's obligations under this Lease arising from and
after the effective date of such sale or conveyance, the same shall operate to
release Landlord from any liability upon any of the covenants or conditions,
express or implied, herein contained in favor of Tenant arising or creating
from and after the effective date of such sale or conveyance by Landlord, and
in such event Tenant agrees to look solely to the responsibility of the
successor in interest of Landlord in and to this Lease. Tenant agrees to attorn
to the purchaser or assignee in any such sale.
22. RIGHT OF LANDLORD TO PERFORM.
All covenants and agreements to be performed by Tenant under any of
the terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent. If Tenant shall fail to perform any
acts, covenants or agreements to be performed by Tenant under any of the terms
of this Lease or to pay any sum of money, other than rent, required to be paid
by it hereunder, and such failure shall continue for twenty (20) days after
notice thereof by Landlord, Landlord may, but shall not be obligated so to do,
and without waiving or releasing Tenant from any obligations of Tenant, make
any such payment or perform any such act, covenant or agreement on Tenant's
part to be made or performed as in this Lease provided. All sums so paid by
Landlord or costs related to Landlord's performance of such acts, covenants or
agreements and all necessary incidental costs, together with interest thereon
at the Agreed Interest Rate as defined in Paragraph 8 hereof from the date of
such payment by Landlord, shall be payable as additional rent to Landlord on
demand, and Tenant covenants to pay any such sums, and Landlord shall have, in
addition to any other right or remedy of the Landlord, the same rights and
remedies in the event of nonpayment thereof by Tenant as in the case of default
by Tenant in the payment of the rent.
23. SURRENDER OF PREMISES.
(a) Except as set forth to the contrary in Paragraph 14 above,
Tenant shall, at least one hundred eighty (180) days before the last day of the
term hereof, give to Landlord a written notice of intention to surrender the
Premises on that date, but nothing contained herein or in the failure of Tenant
to give such notice shall be construed as an extension of the term hereof or as
consent of Landlord to any holding over by Tenant.
(b) At the end of the Lease Term, Tenant agrees to peaceably
deliver up to the Landlord possession of the Premises, in the same condition as
received on the Commencement Date, ordinary wear and tear, damage by fire,
earthquake, and other acts of God, condemnation and the acts or omissions of
Landlord, its agents, employees or contractors all excepted. Unless otherwise
agreed to in writing by Landlord, Tenant shall remove, at Tenant's sole cost
and expense, all permanent improvements or additions to the Premises installed
by or at the expense of Tenant after the lease commencement date, together with
all furniture, equipment and computer and telephone cables belonging to Tenant
(whenever installed), and repair any damage resulting from such removal. Any
property not so removed shall be deemed abandoned by the Tenant, and title to
the same shall thereupon pass to Landlord. Landlord
17
shall have the right to remove and dispose of such abandoned property, and the
costs associated therewith shall be promptly reimbursed by Tenant.
(c) The voluntary or other surrender of this Lease by Tenant, or
a mutual cancellation thereof, shall not work a merger, and shall, at the
option of the Landlord, terminate all or any existing subleases or
subtenancies, or may, at the option of Landlord, operate as an assignment to it
of any or all such subleases or subtenancies.
24. WAIVER.
If either Landlord or Tenant waives the performance of any term,
covenant or condition contained in this Lease, such waiver shall not be deemed
to be a waiver of any subsequent breach of the same or any other term, covenant
or condition contained herein. Furthermore, the acceptance of rent by Landlord
shall not constitute a waiver of any preceding breach by Tenant of any term,
covenant or condition of this Lease, regardless of Landlord's knowledge of such
preceding breach at the time Landlord accepted such rent. Failure by either
party to enforce any of the terms, covenants or conditions of this Lease for
any length of time shall not be deemed to waive or to decrease the right of
such party to insist thereafter upon strict performance by Tenant. Waiver by
either party of any term, covenant or condition contained in this Lease may
only be made by a written document signed by such party.
25. NOTICES.
Whenever any notice, demand or request is required or permitted
hereunder, such notice, demand or request shall be hand-delivered in person, by
reputable courier service or sent by United States Mail, registered, postage
prepaid, to the addresses set forth below:
If to Landlord: Galleria 600, LLC
c/o Childress ▇▇▇▇▇ Properties
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Tenant: PRG-▇▇▇▇▇▇▇ International, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Legal Department
with a copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP
2800 One Atlantic Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Any notice, demand or request which shall be served upon either of the
parties in the manner aforesaid shall be deemed sufficiently given for all
purposes hereunder (i) at the time such notices, demands or requests are
hand-delivered in person or (ii) on the date of delivery, refusal to accept
delivery or inability to deliver such notices, demands or requests in
accordance with the preceding portion of this paragraph, as set forth on the
return receipt, ▇▇▇▇ of lading or other shipping receipt with respect thereto.
Either Landlord or Tenant shall have the right from time to time to
designate by written notice to the other party such other places in the United
States as Landlord or Tenant may desire written notice to be delivered or sent
in accordance herewith; provided, however, at no time shall either party be
required to send more than an original and two copies of any such notice,
demand or request required or permitted hereunder.
Notwithstanding the foregoing, all rental payments under this Lease
shall be sent to the address specified in paragraph 2(a) above.
26. CERTAIN RIGHTS RESERVED TO THE LANDLORD
Landlord reserves and may exercise the following rights without
affecting Tenant's obligations hereunder:
(a) To change the name of the Building;
(b) To designate all sources furnishing sign painting and
lettering, ice, drinking water, towels, coffee cart service and toilet
supplies, lamps and bulbs used in the Premises;
(c) To retain at all times pass keys to the Premises;
(d) To grant to anyone the exclusive right to conduct any
particular business or undertaking in the Building other than Tenant's business
use;
(e) To close the Building after regular work hours and on legal
holidays subject, however, to Tenant's right to admittance, under such
reasonable regulations as Landlord may prescribe from time to time, which may
include by way of example but not of limitation, that persons entering or
leaving the Building register and provide sufficient forms of identification to
a watchman and that said persons establish their right to enter or leave the
Building; and
18
(f) To take any and all measures, including inspections, repairs,
alterations, decorations, additions and improvements to the Premises or the
Building, and identification and admittance procedures for access to the
Building as may be reasonably necessary or desirable for the safety,
protection, preservation or security of the Premises or the Building or
Landlord's interest, or as may be necessary or desirable in the operation of
the Building.
Subject to the requirements of Section 16 above, Landlord may enter
upon the Premises and may exercise any or all of the foregoing rights hereby
reserved without being deemed guilty of an eviction or disturbance of Tenant's
use or possession and without being liable in any manner to Tenant and without
abatement of rent or affecting any of Tenant's obligations hereunder.
27. ABANDONMENT.
[Intentionally omitted.]
28. SUCCESSORS AND ASSIGNS.
Subject to the provisions of Paragraph 9 hereof, the terms, covenants,
and conditions contained herein shall be binding upon and inure to the benefit
of the heirs, successors, executors, administrators and assigns of the parties
hereto.
29. ATTORNEYS' FEES.
In the event that any action or proceeding is brought to enforce any
term, covenant or condition of this Lease on the part of Landlord or Tenant,
the prevailing party in such litigation shall be entitled to reasonable actual
attorneys' fees to be fixed by the Court in such action or proceeding. The
phrases "reasonable attorneys' fees", "reasonable actual attorneys' fees" or
"reasonable attorneys' fees actually incurred", and any similar phrases used in
this Paragraph or in any other provision of this Lease shall be deemed to mean
reasonable attorneys' fees actually incurred, without consideration of the
terms of Official Code of Georgia Annotated Section 13-1-11(1) or Section
13-1-11(2) (▇▇▇▇▇▇ 1982, as amended).
30. CORPORATE AUTHORITY.
If Tenant signs as a corporation, each of the persons executing this
Lease on behalf of Tenant does hereby covenant and warrant that Tenant is a
duly authorized and existing corporation, that Tenant has and is qualified to
do business in Georgia, that the corporation has full right and authority to
enter into this Lease, and that each and both of the persons signing on behalf
of the corporation were authorized to do so. Upon Landlord's request, Tenant
shall provide Landlord with evidence reasonably satisfactory to Landlord
confirming the foregoing covenants and warranties. If Tenant signs as any other
legal entity, Tenant shall provide Landlord with reasonable evidence of
authority.
31. MORTGAGE APPROVALS.
Any provisions of this Lease requiring the approval or consent of
Landlord shall not be deemed to have been unreasonably withheld if any
mortgagee (which shall include the holder of any deed to secure debt) of the
Premises, Building or Property or any portion thereof shall reasonably refuse
or withhold its approval or consent thereto. Any requirement of Landlord
pursuant to this Lease which is imposed pursuant to the direction of any such
mortgagee shall be deemed to have been reasonably imposed by Landlord if made
in good faith.
32. MISCELLANEOUS.
(a) The paragraph headings herein are for convenience of
reference and shall in no way define, increase, limit, or describe the scope or
intent of any provision of this Lease. The term "Landlord" as used in this
Lease shall include the Landlord, its successors and assigns. In any case where
this Lease is signed by more than one person, the obligations hereunder shall
be joint and several. The term "Tenant" or any pronoun used in place thereof
shall indicate and include the masculine or feminine, the singular or plural
number, individuals, firms or corporations, and each of their respective
successors, executors, administrators, and permitted assigns, according to the
context hereof.
(b) Time is of the essence of this Lease and all of its
provisions. This Lease shall in all respects be governed by the laws of the
State of Georgia. This Lease, together with its exhibits, contains all the
agreements of the parties hereto and supersedes any previous negotiations.
There have been no representations made by the Landlord or understandings made
between the parties other than those set forth in this Lease and its exhibits.
This Lease may not be modified except by a written instrument by the parties
hereto.
(c) If for any reason whatsoever any of the provisions hereof
shall be unenforceable or ineffective, all of the other provisions shall be and
remain in full force and effect.
(d) All obligations of either party hereunder not fully performed
as of the expiration or earlier termination of the term at this Lease shall
survive the expiration or earlier termination of the term hereof.
(e) If any clause, phrase, provision or portion of this Lease or
the application thereof to any person or circumstance shall be invalid or
unenforceable under applicable law, such event shall not affect, impair or
render
19
invalid or unenforceable the remainder of this Lease or any other clause,
phrase, provision or portion hereof, nor shall it affect the application of any
clause, phrase, provision or portion hereof to other persons or circumstances,
and it is also the intention of the parties to this Lease that in lieu of each
such clause, phrase, provision or portion of this Lease that is invalid or
unenforceable, there be added as a part of this Lease a clause, phrase,
provision or portion as similar in terms to such invalid or unenforceable
clause, phrase, provision or portion as may be possible and be valid and
enforceable.
(f) Whenever a period of time is herein prescribed for action to
be taken by Landlord, the Landlord shall not be liable or responsible for, and
there shall be excluded from the computation for any such period of time, any
delays due to causes of any kind whatsoever which are beyond the control of
Landlord.
(g) Notwithstanding any other provisions of this Lease to the
contrary, if the Commencement Date hereof shall not have occurred before the
twentieth (20th) anniversary of the date hereof, this Lease shall be null and
void and neither party shall have any liability or obligation to the other
hereunder. The purpose and intent of this provision is to avoid the application
of the rule against perpetuities to this Lease.
33. LANDLORD'S LIEN.
[Intentionally omitted.]
34. QUIET ENJOYMENT.
Landlord represents and warrants that it has full right and authority
to enter into this Lease and that Tenant, while paying the rental and
performing its other covenants and agreements herein set forth, shall peaceably
and quietly have, hold and enjoy the Premises for the term hereof without
hindrance or molestation, subject to the terms and provisions of this Lease. In
the event this Lease is a sublease, then Tenant agrees to take the Premises
subject to the provisions of the prior leases. Landlord shall not be liable for
any interference, nuisance or disturbance by other tenants or third persons
(other than Landlord's agents, employees or contractors), nor shall Tenant be
released from any of the obligations of this Lease because of such
interference, nuisance or disturbance.
35. LANDLORD'S LIABILITY.
In no event shall Landlord's liability for any breach of this Lease
exceed Landlord's interest in the Building, Property and Project. This
provision is not intended to be a measure or agreed amount of Landlord's
liability with respect to any particular breach, and shall not be utilized by
any court or otherwise for the purpose of determining any liability of Landlord
hereunder, except only as a maximum amount not to be exceeded in any event.
Furthermore, any liability of Landlord hereunder shall be enforceable only out
of the interest of Landlord in the Building and the Property and in no event
out of the separate assets of Landlord or any shareholder or partner of
Landlord.
36. RIGHT TO RELOCATE.
[Intentionally omitted.]
37. NO ESTATE.
This contract shall create the relationship of Landlord and Tenant,
and no estate shall pass out of Landlord. Tenant has only a usufruct, not
subject to levy and sale and not assignable by Tenant, except as provided for
herein and in compliance herewith.
38. LEASE EFFECTIVE DATE.
Submission of this instrument for examination or signature by Tenant
does not constitute a reservation of or option for lease, and it is not
effective as a lease or otherwise until execution and delivery by both Landlord
and Tenant.
39. RULES AND REGULATIONS.
(a) Tenant shall faithfully observe and comply with the rules and
regulations printed on or annexed to this Lease as Exhibit "A" which is
attached hereto and made a part hereof and, upon not less than ten (10) prior
business days' written notice thereof, all reasonable modifications thereof and
additions thereto from time to time put into effect by Landlord. Landlord shall
supply Tenant with any changes or amendments to said rules. Landlord shall not
be responsible for the nonperformance by any other tenant or occupant of the
Building of any of said rules and regulations. Tenant shall faithfully observe
and comply with the rules and regulations put into effect from time to time by
the owners of other buildings and property within the Atlanta Galleria complex.
Tenant will be responsible for causing its employees, customers, subtenants,
licensees, invitees, agents, concessionaires and contractors to comply with all
such rules and regulations while they are within the Premises or subject to
Tenant's control.
(b) Tenant acknowledges and agrees that Landlord may insist upon
compliance with and enforce the rules and regulations as well as any laws,
statutes, ordinances or governmental rules or regulations as mentioned in
Paragraph 5 above, and may, pursuant to the Georgia Criminal Trespass Statute
(Official Code of Georgia Annotated, Section 16-7-21), prohibit any person
including any of Tenant's employees, agents, customers, licensees, guests,
invitees, concessionaires, or contractors from entering or remaining upon all
or any portion of the Building,
20
including the Premises, or any other building or property within the Atlanta
Galleria complex, including the hotel, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
parking lots, parking decks, performance stages, and all other buildings, land
or property, if Landlord determines in its sole discretion that said person has
not complied with any law, ordinance, rule or regulation or poses a threat to
the safety, welfare or health of any person or to the maintenance or
orderliness of the administration of the Building. Tenant further agrees that
it shall not interfere with or object to Landlord's enforcement of any such
laws, ordinances, rules and regulations including Official Code of Georgia
Annotated, Section 16-77-21 or any similar statute.
40. SPECIAL STIPULATIONS.
Special Stipulations to this Lease are set forth on Exhibit "E"
attached hereto and made a part hereof. In the event of any conflict between
any provision set forth in Exhibit "E" and any provision contained elsewhere in
this Lease, the former in all events shall supersede, prevail and control.
41. GUARANTY.
[Intentionally omitted.]
42. CONDITION.
[Intentionally omitted.]
43. BROKERAGE COMMISSIONS.
Tenant represents that Tenant has not engaged or worked with any real
estate brokers or agents other than Childress ▇▇▇▇▇ Properties, Inc. and ▇▇▇▇▇▇
& Associates, L.L.C. (collectively, "Broker") in connection with this Lease for
the Premises. Tenant shall indemnify and hold harmless Landlord and Landlord's
agents from and against any and all claims for commissions or other
compensation, and any liabilities, damages and costs relating thereto, that may
be asserted by any person or entity other than Broker to the extent that Tenant
has engaged such person or such claim results from any action of Tenant.
Landlord represents that Landlord has not engaged or worked with any real
estate brokers or agents other than Broker in connection with this Lease for
the Premises. Landlord shall indemnify and hold harmless Tenant and Tenant's
agents from and against any and all claims for commissions or other
compensation, and any liabilities, damages and costs relating thereto that may
be asserted by any person or entity other than Broker to the extent that
Landlord has engaged such person or such claim results from any action of
Landlord. Landlord hereby acknowledges and agrees that it shall compensate
Broker in accordance with the terms of separate commission agreements with each
Broker.
44. EXCULPATION.
This Lease is executed, not individually, but solely on behalf of
Galleria 600, LLC, by certain employees of OTR, an Ohio general partnership,
the authorized nominee and agent for The State Teachers Retirement Board of
Ohio ("▇▇▇▇▇"). In consideration for entering into this Lease, Tenant hereby
waives any rights to bring a cause of action against the individuals executing
this Lease on behalf of Landlord (except for any cause of action based upon
lack of authority or fraud), and all persons dealing with Landlord must look
solely to Landlord's assets for the enforcement of any claim against Landlord,
and the obligations hereunder are not binding upon, nor shall resort be had to
the private property of any of, the trustees, officers, directors, employees or
agents of ▇▇▇▇▇. Nothing contained in this Paragraph 44 shall be deemed to
limit the provisions of Paragraph 35 above.
IN WITNESS WHEREOF, the parties hereto have executed this Lease the
day and year first above written.
LANDLORD:
GALLERIA 600, LLC, A GEORGIA
LIMITED LIABILITY COMPANY
By: OTR, an Ohio general partnership,
its manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Title: General Partner
-------------------------------
TENANT:
PRG-▇▇▇▇▇▇▇ International, Inc.,
a Georgia corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
-------------------------------------
Title: Executive Vice President - Finance,
------------------------------------
Chief Financial Officer
------------------------------------
and Treasurer
------------------------------------
Attest:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
(CORPORATE SEAL)
21
EXHIBIT "A"
RULES AND REGULATIONS
l. Sidewalks, halls, passages, exits, entrances, elevators, escalators
and stairways shall not be obstructed by tenants or used by them for
any purpose other than for ingress and egress from their respective
Premises. The halls, passages, exits, entrances, elevators and
stairways are not for the use of the general public and Landlord shall
in all cases retain the right to control and prevent access thereto by
all persons whose presence, in the judgment of Landlord, shall be
prejudicial to the safety, character, reputation and interests of the
Building and its tenants, provided that nothing herein contained shall
be construed to prevent such access to persons with whom any tenant
normally deals in the ordinary course of such tenant's business unless
such persons are engaged in illegal activities. No tenant, and no
employees or invitees of any tenant, shall go upon the roof of the
Building, except as authorized by Landlord.
2. No sign, placard, picture, name, advertisement, notice or other such
item visible from the exterior of Premises shall be inscribed,
painted, illuminated, affixed, installed or otherwise displayed by any
tenant either on its Premises or any part of the Building without the
prior written consent of Landlord, and Landlord shall have the right
to remove any such sign, placard, picture, name, advertisement, notice
or other such item without notice to and at the expense of tenant.
If Landlord shall have given such consent to any tenant at any time,
whether before or after the execution of the Lease, such consent shall
in no way operate as a waiver or release of any of the provisions
hereof or of such Lease, and shall be deemed to relate only to the
particular sign, placard, picture, name, advertisement or notice so
consented to by Landlord and shall not be construed as dispensing with
the necessity of obtaining the specific written consent of Landlord
with respect to any other such sign, placard, picture, name,
advertisement or notice.
All approved signs or lettering on doors and walls shall be printed,
painted, affixed and inscribed at the expense of the tenant by a
person approved by Landlord.
3. The bulletin board or directory of the Building will be provided
exclusively for the display of the name and location of tenants only
and Landlord reserves the right to exclude any other names therefrom.
4. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung
or placed in, or used in connection with, any window or door on any
Premises without the prior written consent of Landlord. In any event
with the prior written consent of Landlord, all such items shall be
installed inboard of Landlord's standard window covering and shall in
no way be visible from the exterior of the Building. No articles shall
be placed or kept on the window ▇▇▇▇▇ so as to be visible from the
exterior of the Building. No articles shall be placed against glass
partitions or doors which might appear unsightly from outside Tenant's
Premises.
5. Landlord reserves the right to exclude from the Building between the
hours of 6 pm and 8 am on Monday through Friday and at all hours on
Saturdays, Sundays, and holidays all persons who are not tenants or
agents, employees or contractors of tenants or their accompanied
guests in the Building. Each tenant shall be responsible for all
persons for whom it allows to enter the Building and shall be liable
to Landlord for all acts of such persons.
Landlord shall in no case be liable for damages for error with regard
to the admission to or exclusion from the Building of any person.
During the continuance of any invasion, mob, riot, public excitement
or other circumstances rendering such action advisable in Landlord's
opinion, Landlord reserves the right to prevent access to the Building
by closing and/or locking the doors, or otherwise, for the safety of
tenants and protection of the Building and property in the Building.
6. No tenant shall employ any person or persons for the purpose of
cleaning Premises unless otherwise agreed to by Landlord in writing.
Except with the written consent of Landlord no person or persons other
than those approved by Landlord shall be permitted to enter the
Building for the purpose of cleaning same. No tenant shall cause any
unnecessary labor by reason of such tenant's carelessness or
indifference in the preservation of good order and cleanliness of the
Premises. Landlord shall in no way be responsible to any tenant for
any loss of property on the Premises, however occurring, or for any
damage done to the effects of any tenant by the janitor or any other
employee or any other person.
7. No tenant shall accept barbering or bootblacking or carwashing
services in its Premises or in the Building, or on the Property,
except from persons authorized by Landlord.
8. Each tenant shall see that all doors of its Premises are closed and
securely locked after business hours and must observe strict care and
caution that all water faucets, water apparatus, coffee makers and any
other electrical appliances or equipment are entirely shut off before
the tenant or its employees leave such Premises, and that all
utilities shall likewise be carefully shut off so as to prevent waste
or damage. On multiple tenancy floors, all tenants shall keep the door
or doors to the Building corridors closed at all times except for
ingress and egress, and except for Premises entry doors designed to be
opened during normal business hours.
9. As more specifically provided in each tenant's Lease of the Premises,
tenant shall not waste electricity, water or air-conditioning and
agrees to cooperate fully with Landlord to assure the most effective
operation of the Building's heating and air-conditioning, and shall
refrain from attempting to adjust any controls.
10. No tenant shall alter any lock or access device or install a new or
additional lock or access device or any bolt on any door of its
Premises without the prior written consent of Landlord.
11. No tenant shall make or have made additional copies of any keys or
access devices provided by Landlord. Each tenant, upon the termination
of the Tenancy, shall deliver to Landlord all the keys or access
devices for the Building, offices, rooms and toilet rooms which shall
have been furnished tenant or which tenant shall have had made. In the
event of the loss of any keys or access devices so furnished by
Landlord, tenant shall pay Landlord therefor.
12. The toilet rooms, toilets, urinals, wash bowls and other apparatus
shall not be used for any purpose other than that for which they were
constructed and no foreign substance of any kind whatsoever,
including, but not limited to, coffee grounds shall be thrown therein.
13. No tenant shall use or keep in its Premises or the Building any
kerosene, gasoline or flammable or combustible fluid or material other
than limited quantities necessary for the operation or maintenance of
office equipment. No tenant shall use any method of heating or
air-conditioning other than that supplied by Landlord. In the event
flammable or combustible fluids or materials are permitted by Landlord
in the Premises, these materials must be maintained and secured so as
to comply with all laws, rules and regulations governing such
materials, including but not limited to, all fire codes.
14. No tenant shall use, keep or permit to be used or kept in its Premises
any foul or noxious gas or substance or permit or suffer such Premises
to be occupied or used in a manner offensive or objectionable to
Landlord or other occupants of the Building by reason of noise, odors
and/or vibrations or interfere in any way with other tenants or those
having business therein, nor shall any animals or birds be brought or
kept in or about any Premises of the Building.
15. No cooking shall be done or permitted by any tenant on its Premises
without the consent of Landlord (except that use by the tenant of
Underwriters' Laboratory approved microwaves and/or equipment for the
preparation of coffee, tea, hot chocolate and similar beverages for
tenants and their employees shall be permitted, provided that such
equipment and use is in accordance with applicable federal, state and
city laws, codes, ordinances, rules and regulations) nor shall
Premises be used for lodging.
16. Except with the prior written consent of Landlord, no tenant shall
sell, permit the sale, at retail, of newspapers, magazines,
periodicals, theater tickets or any other goods or merchandise in or
on any Premises, nor shall tenant carry on, or permit or allow any
employee or other person to carry on, the business of stenography,
typewriting or any similar business in or from any Premises for the
service or accommodation of occupants of any other portion of the
Building, nor shall the Premises of any tenant be used for the storage
of merchandise or for manufacturing of any kind, or the business of a
public ▇▇▇▇▇▇ shop, beauty parlor, nor shall the Premises of any
tenant be used for any improper, immoral or objectionable purpose.
17. If tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's
instructions in their installation.
18. Landlord will direct electricians as to where and how telephone,
telegraph and electrical wires are to be introduced or installed. No
boring or cutting for wires will be allowed without the prior written
consent of Landlord. The location of burglar alarms, telephones, call
boxes or other office equipment affixed to all Premises shall be
subject to the written approval of Landlord.
19. No tenant shall install any radio or television antenna, loudspeaker
or any other device on the exterior walls or the roof of the Building.
Tenant shall not interfere with radio or television broadcasting or
reception from or in the Building or elsewhere.
20. No tenant shall lay linoleum, tile, carpet or any other floor covering
so that the same shall be affixed to the floor of its Premises in any
manner except as approved in writing by Landlord. The expense of
repairing any damage resulting from a violation of this rule or the
removal of any floor covering shall be borne by the tenant by whom, or
by whose contractors, employees or invitees, the damage shall have
been caused.
21. No furniture, freight, equipment, materials, supplies, packages,
merchandise or other property will be received in the Building or
carried up or down the elevators except between such hours and in such
elevators as shall be designated by Landlord. In the event Landlord
permits use of the Building's loading dock and/or elevators after
normal Building hours, then Landlord shall have the right to impose
reasonable charges on tenant for such use. Landlord shall have the
right to prescribe the weight, size and position of all safes,
furniture, files, bookcases or other heavy equipment brought into the
Building. Safes or other heavy objects shall, if considered necessary
by Landlord, stand on wood strips of such thickness as determined by
Landlord to be necessary to properly distribute the weight thereof.
Landlord will not be responsible for loss of or damage to any such
safe, equipment or property from any cause, and all damage done to the
Building
by moving or maintaining any such safe, equipment or other property
shall be repaired at the expense of tenant.
Business machines and mechanical equipment belonging to any tenant
which cause noise or vibration that may be transmitted to the
structure of the Building or to any space therein to such a degree as
to be objectionable to Landlord or to any tenants in the Building
shall be placed and maintained by such tenant, at such tenant's
expense, on vibration eliminators or other devices sufficient to
eliminate noise or vibration. The persons employed to move such
equipment in or out of the Building must be acceptable to Landlord.
22. No tenant shall place a load upon any floor of the Premises which
exceeds the load per square foot which such floor was designed to
carry and which is allowed by law. No tenant shall ▇▇▇▇, or drive
nails, screws or drill into, the partitions, woodwork or plaster or in
any way deface such Premises or any part thereof; provided, however,
that nothing in this sentence shall prevent or preclude Tenant from
hanging pictures, installing shelving or performing Cosmetic
Alterations within the Premises.
23. There shall not be used in any space, or in the public areas of the
Building, either by any tenant or others, any hand trucks except those
equipped with rubber tires and side guards or such other
material-handling equipment as Landlord may approve. No other vehicles
of any kind shall be brought by any tenant into or kept in or about
the Premises.
24. Each tenant shall store all its trash and garbage within the interior
of its Premises. No materials shall be placed in the trash boxes or
receptacles if such material is of such nature that it may not be
disposed of in the ordinary and customary manner of removing and
disposing of trash and garbage in this area without violation of any
law or ordinance governing such disposal. All trash, garbage and
refuse disposal shall be made only through entryways and elevators
provided for such purposes and at such times as Landlord may
designate.
25. Canvassing, soliciting, distributing of handbills or any other written
material, and peddling in the Building are prohibited and each tenant
shall cooperate to prevent the same. No tenant shall make room-to-room
solicitation of business from other tenants in the Building.
26. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the
influence of alcohol or drugs or who is in violation of any of the
rules and regulations of the Building.
27. Without the prior written consent of Landlord, no tenant shall use the
name of the Building in connection with or in promoting or advertising
the business of such tenant except as tenant's address.
28. Each tenant shall comply with all energy conservation, safety, fire
protection and evacuation procedures and regulations established by
Landlord or any governmental agency.
29. Each tenant assumes any and all responsibility for protecting its
Premises from theft, robbery and pilferage, which includes keeping
doors locked and other means of entry to the Premises closed.
30. The requirements of tenants will be attended to only upon application
at the office of the Building by an authorized individual. Employees
of Landlord shall not perform any work or do anything outside of their
regular duties unless given special instructions from Landlord, and no
employees will admit any person (tenant or otherwise) to any office
without specific instructions from Landlord.
31. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any particular tenant or tenants, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations
in favor of any other tenant or tenants, nor prevent Landlord from
thereafter enforcing any such Rules and Regulations against any or all
tenants of the Building.
32. 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
safety and security, for care and cleanliness of the Building and for
the preservation of good order therein. Tenant agrees to abide by all
such Rules and Regulations hereinabove stated and any additional rules
and regulations that are generally applicable to all tenants and that
are adopted after Landlord has provided to the Building's tenants not
less than ten (10) days' prior written notice thereof.
33. All wallpaper or vinyl fabric materials which any tenant may install
on painted walls shall be applied with a strippable adhesive. The use
of nonstrippable adhesives will cause damage to the walls when
materials are removed, and repairs made necessary thereby shall be
made by Landlord at such tenant's expense.
34. All work proposed by a tenant in its Premises other than Cosmetic
Alterations must be pre-approved by Landlord. Tenant will refer all
contractors, contractors representatives and installation technicians,
rendering any such service to tenant, to Landlord for Landlord's
supervision, approval, and control before performance of any
contractual service. This provision shall apply to all work performed
in the Premises and other portions of the Building, including
installations of telephones, telegraph equipment, electrical devices
and attachments and installations of any nature affecting floors,
walls, woodwork, trim, windows, ceilings, equipment or any other
physical portion of the Building.
35. Each tenant shall give prompt notice to Landlord of any accidents to
or defects in plumbing, electrical fixtures, or heating apparatus so
that such accidents or defects may be attended to properly.
36. Each tenant shall be responsible for the observance of all of the
foregoing Rules and Regulations by such tenant's employees, agents,
clients, customers, invitees and guests.
37. These Rules and Regulations are in addition to, and shall not be
construed to in any way modify, alter or amend, in whole or in part,
the terms, covenants, agreements and conditions of any lease of
premises in the Building, including without limitation the Lease for
the Premises.
38. Smoking of tobacco products (including, but not limited to,
cigarettes, cigars, pipes or similar utensils) is expressly prohibited
in the lobby, hallways, elevators, building entrances, restrooms,
stairwells and common areas in and around the Building. Tenant shall
not permit any of its employees, agents, servants, licensees,
contractors or invitees to smoke in those areas specified in the
immediately preceding sentence. Tenant further agrees either (i) to
prohibit smoking within the Premises, or (ii) if smoking is permitted
by Tenant within the Premises, to take, at Tenant's sole expense, such
steps (which steps may include, but not be limited to, installing
exhaust equipment to supplement the Building's heating, ventilation
and air conditioning system) as shall be required by Landlord to avoid
any infiltration of smoke from the Premises into the space of other
tenants or the common areas in the Building. Tenant further agrees
that if Tenant shall have taken steps to reduce or eliminate
infiltration of smoke into the space of other tenants, and,
notwithstanding these steps, smoke from the Premises continues to be a
nuisance to other tenants in the Building, then Landlord shall have
the right to prohibit smoking in the Premises altogether. Tenant
acknowledges and agrees that (a) Landlord has the right under this
paragraph to restrict and/or prohibit smoking in the Premises, (b)
smoking in the Premises is not an absolute or inherent right of Tenant
and (c) Landlord's determination that smoking in the Premises must be
abated shall be final. To enable smokers to have an area outside of
the Building in which to smoke, the Landlord shall designate from time
to time specific areas where smoking is permitted, to the extent
permitted by applicable laws and regulations. Smokers are required to
keep all designated smoking areas clean, attractive and free of
litter. In order to comply with present or future laws, regulations or
guidelines of governmental entities relating to workplace health and
safety, Landlord retains the right to further alter, move or eliminate
such smoking areas from time to time and to establish regulations
relating thereto as Landlord reasonably deems necessary or
appropriate.
EXHIBIT "B"
WORK LETTER AGREEMENT
1. IMPROVEMENTS
(a) At Tenant's expense, Landlord shall furnish and install
substantially in accordance with the construction drawings and specifications
approved by Tenant and Landlord, partitions, doors, lighting fixtures,
acoustical ceiling, floor coverings, electrical outlets, telephone outlets, air
conditioning, fire sprinklers, signage, wall finishes, and construction
clean-up and other improvements required by Tenant which are normally performed
by the construction trades, but excluding those items to be constructed by
Landlord pursuant to Paragraph 1(b) below (collectively, the "Tenant
Improvements"). Landlord shall cause to be prepared at Tenant's expense all
architectural plans and specifications, and all structural, mechanical and
electrical engineering plans and specifications (the "Plans") required for
Tenant's occupancy. The preparation of the Plans shall not include selection of
non-building standard finishes, or any fixtures or furniture, or any other
elements of interior design.
(b) Landlord shall request competitive bids on the construction
of the Tenant Improvements from ▇▇▇▇▇▇-▇▇▇▇ Company, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, and
▇▇▇▇▇▇▇▇▇ and Company. Landlord and Tenant shall mutually agree on which of
said contractors shall be selected to construct the Tenant Improvements. Tenant
hereby approves the following MEP subcontractors: (i) mechanical/plumbing -
McKenneys and Maxair; and (ii) electrical - Penco and ▇▇▇▇▇▇▇ ▇▇▇▇▇. The use of
any other MEP contractors shall be subject to the prior approval of Tenant.
(c) At Landlord's expense, Landlord shall or has provided the
items identified on Schedule 1 attached hereto and made a part hereof
(hereinafter referred to as "Landlord's Work").
(d) Landlord shall be the construction manager ("Construction
Manager") in connection with the construction of the Tenant Improvements, and
in such capacity shall provide the following services at no additional cost,
expense or charge to Tenant:
1. Construction Manager shall (i) furnish to Tenant the
benefit of Construction Manager's expertise, skill and experience in
furthering the interests of Tenant in connection with the construction
of the Tenant Improvements; (ii) use commercially reasonable efforts
to cause the construction of the Tenant Improvements to occur in an
expeditious and economical manner; and (iii) use commercially
reasonable efforts to promote harmony and cooperation among the
Tenant, Construction Manager, the general contractor and the
architects of Landlord and Tenant in connection with the construction
of the Tenant Improvements.
2. Construction Manager shall evaluate and make
recommendations to, and meet with, Tenant and Tenant's architect with
respect to (i) the Tenant Improvements and the Tenant's budget for
such Tenant Improvements, including without limitation the selection
of materials, building systems and equipment; (ii) the schedule for
such Tenant Improvements, including time requirements for procurement,
installation and completion, long lead-time items and other critical
decisions and dates that Tenant must be and remain aware of and
observe; (iii) factors related to construction cost, including without
limitation estimates of alternative designs and materials, and
possible economies and so-called "value engineering"; and (iv) the
review and comparative analysis of general contractors' bids and the
qualifications of the subcontractors; .
3. Construction Manager shall (i) schedule and conduct
meetings with Tenant, Tenant's and Landlord's architects, the general
contractor and/or subcontractors regularly and with such frequency as
Construction Manager recommends during the course of construction in
order to review, discuss and assess the status of the work; (ii) visit
and inspect the work regularly and with such frequency as Construction
Manager recommends during the course of construction (and in any event
not less frequently than weekly and/or at such other critical dates
and phases of construction as are necessary or appropriate); (iii)
provide or cause others to provide to Tenant written reports not less
frequently than twice per month on the progress of the entire work;
and (iv) review and approve, disapprove and/or make recommendations to
Tenant regarding all requests for payment by the general contractor.
2. LANDLORD'S ALLOWANCE
As Landlord's contribution to work provided in Paragraph 1(a),
Landlord shall provide Tenant with an allowance of Twenty Five and 12/100
Dollars ($25.12) per rentable square foot of the Premises, hereinafter referred
to as "Landlord's Allowance". Notwithstanding the above, Tenant may, at
Tenant's discretion, use all or any portion of the Landlord Allowance for costs
related to design and construction of the Tenant Improvements, Tenant's signage
costs, moving expenses and installation of Tenant's furniture; provided,
however, that, except as provided in the following sentence, as a condition to
Tenant's right to use Landlord's Allowance for the foregoing purposes, Tenant
first shall be required to improve and finish all portions of the Premises in
accordance with the Plans. With respect to costs incurred by Tenant and
relating to the design of the Tenant Improvements, Tenant may submit invoices
for such costs to Landlord for payment directly out of Landlord's Allowance.
3. TENANT'S COST
(a) Tenant shall bear the cost, if any, of the work described in
Paragraph 1(a) over and above the Landlord's Allowance provided by Landlord
under Paragraph 2 (Paragraph 3 work is hereinafter referred to as "Tenant's
Cost"). Any modifications of any part of the work described in Paragraph 1(a)
already completed that are requested by Tenant shall constitute part of
Tenant's Cost.
(b) Subject to application of the Landlord's Allowance, Tenant
shall pay for all costs associated with any Tenant-requested changes or
modifications of the improvements as defined by the Plans in Paragraph 1(a) of
this Exhibit "B" after the Plans have been approved by Tenant. Tenant will be
liable for any increase in construction costs resulting from any Tenant Delay
as defined in Paragraph 1(b) of the Lease.
(c) Until such time as Landlord's Allowance has been fully paid
by Landlord, as invoices are received by Landlord for the completion of the
Tenant Improvements, such invoices shall be paid by Landlord and Tenant jointly
in the same proportion that each of such party's estimated share of the cost of
the Tenant Improvements bears to the total cost of the Tenant Improvements. For
example, if Tenant's estimate share of the cost of the Tenant Improvements is
25% of the total cost of the Tenant Improvements, then Tenant shall pay 25% of
each invoice for the Tenant Improvements. Tenant shall pay such amount to
Landlord within fifteen (15) days after receipt of such invoice. If Landlord's
Allowance shall have been fully paid by Landlord, Tenant shall pay 100% of all
remaining invoices for the Tenant Improvements.
4. PLANNING SCHEDULE
(a) Preparation and Approval of Plans:
(i) Tenant shall diligently pursue the preparation of
the Plans FOR THE TENANT IMPROVEMENTS.
(ii) The Plans shall then be prepared in conformance with
Landlord's requirements and all applicable codes, ordinances and laws,
and shall specify materials and details of equal or better quality to
Landlord's building standard. The Plans shall be subject to approval
of Landlord and the Code Officials having jurisdiction. Tenant shall
submit complete construction plans to Landlord for approval.
(b) Upon receipt of the approved Plans, Landlord shall provide a
quotation based upon competitively bid sub-contract pricing for the work to
Tenant for approval as the price for the Tenant Improvements and the amount to
be paid by Tenant to Landlord for Tenant's Cost. Upon written approval of such
price by Tenant, Landlord and Tenant shall be deemed to have given final
approval to the Plans as the basis on which the quotation was made, and
Landlord shall be authorized to proceed with the improvements of the Premises
in accordance with such Plans. Tenant will not unreasonably withhold its
approval of such price.
(c) Attached hereto as Schedule 2 and made a part hereof is a
schedule approved by Landlord and Tenant for preparation and approval of the
Plans and completion of the Tenant Improvements.
5. TENANT'S WORK
All work not within the scope of the normal construction trades
employed in the Building, including, but not limited to, furnishing and
installing of telephones, furniture, and office equipment, shall be furnished
and installed by Tenant at Tenant's expense. Tenant shall adopt a schedule in
conformance with the schedule of Landlord's contractors and conduct its work in
such a manner as to maintain harmonious labor relations and as not to interfere
unreasonably with or delay the work of Landlord's contractors. Tenant's
contractors, subcontractors, and labor shall be acceptable to and approved by
Landlord and shall be subject to the administrative supervision of Landlord.
Contractors and subcontractors engaged by Tenant shall employ persons and means
to insure so far as may be possible the progress of the work without
interruption on account of strikes, work stoppages or similar causes for delay.
Landlord shall give access and entry to the Premises to Tenant and its
contractors and subcontractors and reasonable opportunity and time and
reasonable use of facilities to enable Tenant to adapt the Premises for
Tenant's use; provided, however, that if such entry is prior to the
Commencement Date, such entry shall be subject to all the terms and conditions
of the Lease, except the payment of rent (including monthly base rent and
payments of Direct Operating Expenses).
SCHEDULE 1
The Base Building shell, systems and finishes shall include, but not be limited
to, the following improvements when they have been installed and are
operational:
i. Exterior walls and columns complete with gypsum wallboard
installed, taped, finished, and floated ready for tenants
applied finish;
ii. Broom-clean unfinished concrete floors level to f (f) number
of 25;
iii. 2' x 4' Ceiling grid system installed throughout (2 foot
intermediate t's stacked on floor) with high efficiency 2' x
4' 12 cell parabolic reflector fluorescent fixtures at a
ratio of 12 ea/1000 RSF, stacked on floor and reveal edge
acoustical ceiling tile (2 x 2; 15/16) stacked on the floor
of the Premises;
iv. Building standard power grid for lighting installed above
ceiling. Provide 5.5 ▇▇▇▇▇/sf demand load for tenant 120/208V
loads and 2 ▇▇▇▇▇/sf 277/480V demand lighting loads plus core
area building loads;
v. Men's and ladies' bathroom facilities with Building standard
doors, lighting fixtures, and finishes located on each floor
of the leased Premises;
vi. Main heating, ventilating and air conditioning rooms and
equipment installed and operational. Provide and install the
perimeter slot diffusers (fed by 12 PIU boxes) to cover the
15' perimeter zone around each floor. Provide 8 interior VAV
boxes (within the Tenant space and dedicated to Tenant
requirements) and 12 zones on floors 2 - 5 and commensurate
ratio to 1st floor.
vii. Elevator lobby on the first floor of the Building completed
with Class A finishes;
viii. Sprinkler risers and main loop installed on each floor based
on open floor occupancy, together with one (1) sprinkler head
turned up to slab, for each 225 square feet of rentable area
in the leased Premises or as required by NFPA 13;
ix. Building standard drinking fountains installed and
operational;
x. Fire valve cabinets or fire extinguisher cabinets, as
applicable, as required by city codes for general office use
occupancy, installed in stairways or core;
xi. Building fire stairs installed, and surrounding walls
installed, taped and floated;
xii. Building core installed, with walls installed, taped, and
floated, and with elevator shaft doors and door facings
completed to Building standard finish (lighting, life safety
and HVAC);
xiii. Electrical and telephone distributions rooms installed with
panel boards. 7.5 ▇▇▇▇▇ of available power for tenants used
(per paragraph iv. above);
xiv. Appropriate access provided for telephone trunk lines and
Building standard voice communication speakers in core of
each floor as required by applicable Building code installed
and wired;
xv. Building smoke detectors, AVSTROBES and exit lights installed
in core of each floor as required by applicable Building
code;
xvi. All interior and exterior public areas of the Building are
reasonably complete, including, but not limited to,
applicable mechanical, lighting, electrical, elevator and
plumbing facilities.
SCHEDULE 2
[To be finalized by Landlord and Tenant
and attached hereto on or before
February 28, 2002.]
EXHIBIT "C"
TENANT LEASE ESTOPPEL CERTIFICATE
Landlord:
--------------------------------------------
Tenant:
--------------------------------------------
Premises:
--------------------------------------------
Area: Sq. Ft. Lease Date:
-------------------------- -----------
The undersigned Tenant/Landlord under the above-referenced lease (the
"Lease") hereby ratifies the Lease and certifies to ___________________________
("Landlord/Tenant") with respect to the real property of which the premises
demised under the Lease (the "Premises") is a part, as follows:
1. That the term of the Lease commenced on _____________, 200___
and the Tenant is in full and complete possession of the Premises demised under
the Lease and has commenced full occupancy and use of the Premises, such
possession having been delivered by Landlord and having been accepted by the
Tenant.
2. That the Lease calls for monthly rent installments of
$____________ to date and that the Tenant is paying monthly installments of
rent of $_____________ which commenced to accrue on the _______ day of
____________, 200____.
3. That no advance rental or other payment has been made in
connection with the Lease, except rental for the current month. There is no
"free rent" or other concession under the remaining term of the Lease, and the
rent has been paid to and including _____________, 200____.
4. That a security deposit in the amount of $_____________ is
being held by Landlord, which amount is not subject to any set off or reduction
or to any increase for interest or other credit due to Tenant.
5. That all obligations and conditions under said Lease to be
performed to date by Landlord or Tenant have been satisfied, free of defenses
and set-offs including all construction work in the Premises.
6. That the Lease is a valid lease and in full force and effect
and represents the entire agreement between the parties; that there is no
existing default on the part of Landlord or the Tenant in any of the terms and
conditions thereof and no event has occurred which, with the passing of time or
giving of notice or both, would constitute an event of default; and that said
Lease has: (Initial One)
( ) not been amended, modified, supplemented, extended,
renewed or assigned.
( ) been amended, modified, supplemented, extended,
renewed or assigned as follows by the following
described agreements:
7. That the Lease provides for a primary term of _______ months;
the term of the Lease expires on the ____ day of ______________, 200____; and
that: (Initial One)
( ) neither the Lease nor any of the documents listed
in Paragraph 6 (if any), contain an option for any
additional term or terms.
( ) the Lease and/or the documents listed under
Paragraph 6, above, contain an option for two
(2) additional term(s) of five (5) years and zero
month(s) (each) at a rent to be determined as
follows: See Exhibit "E", Section 3, to the Lease.
8. That Landlord has not rebated, reduced or waived any amounts
due from Tenant under the Lease, either orally or in writing, nor has Landlord
provided financing for, made loans or advances to, or invested in the business
of Tenant.
9. That, to the best reasonable actual knowledge of
Tenant/Landlord, there is no apparent or likely contamination of the real
property or the Premises by hazardous materials, and Tenant/Landlord does not
use, nor has Tenant/Landlord disposed of, hazardous materials in violation of
environmental laws on the real property or the Premises.
10. That there are no actions, voluntary or involuntary, pending
against the Tenant/Landlord under the bankruptcy laws of the United States or
any state thereof.
11. That this certification is made knowing that Landlord/Tenant
is relying upon the representations herein made.
Tenant/Landlord:
-------------------------------------------
Dated: By:
------------------ ---------------------------------------
Typed Name:
----------------------------
Title:
---------------------------------
EXHIBIT "D"
Added to and made part of Lease Agreement between
Galleria 600, LLC, a Georgia limited liability company ("Landlord")
And PRG-▇▇▇▇▇▇▇ International, Inc. ("Tenant")
PREMISES ON FIRST FLOOR
[FLOOR LAYOUT]
EXHIBIT "D" (CONTINUED)
Added to and made part of Lease Agreement between
Galleria 600, LLC, a Georgia limited liability company ("Landlord")
And PRG-▇▇▇▇▇▇▇ International, Inc. ("Tenant")
PREMISES ON EACH OF FULL FLOORS
(Floors Two Through Five)
[FLOOR LAYOUT]
EXHIBIT "E"
Added to and made part of Lease Agreement between Galleria 600, LLC, a Georgia
limited liability company ("Landlord") and PRG-▇▇▇▇▇▇▇ International, Inc., a
Georgia corporation ("Tenant").
1. First Month's Rent. The First Month's Rent in the amount of
Eighty Nine Thousand One Hundred Eighty and No/100 Dollars ($89,180.00) is due
and payable upon Lease execution by both Tenant and Landlord.
2. Moving Allowance. In addition to the Tenant Allowance to be
provided by Landlord as set forth in Exhibit "B" to this Lease, Landlord shall
provide to Tenant a "Moving Allowance" to pay the costs of Tenant's move to the
Premises. The Moving Allowance shall be the actual cost of said move to a limit
of (not to exceed) Two and No/100 Dollars ($2.00) per rentable square foot
contained in the Premises.
3. Grant of Renewal Options. Provided Tenant is not in uncured
default at the time of exercise, and as long as Tenant or an Affiliate
Transferee of Tenant is still in occupancy of the Premises at the time of
exercise, Tenant shall have and is hereby granted by Landlord two (2) five
(5)-year options to renew this Lease as to the entire Premises, provided Tenant
provides at least twelve (12) months' prior written notice to Landlord of
Tenant's intent to renew for each such renewal term. The rental rate for each
renewal term shall be the then current Building market rate. For purposes of
this paragraph, the then current Building market rate shall be deemed to be the
rental rate at which space in the then existing high-rise, first class office
buildings in the Galleria complex in which the Building is a part (which
buildings shall include the buildings currently designated as 100, 300, 400 and
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, and such other office buildings as are constructed in the
Galleria complex and available for occupancy prior to the commencement of the
applicable renewal term and which are multi-tenant office buildings
substantially similar in size, quality and amenities to the 100, 300, 400 and
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ office buildings, but shall exclude the 200 and ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ buildings), taking into consideration relevant factors
including amount of space, location of space, term of the lease, base rental
rate, escalations, base year for operating expenses, age of the building,
whether such lease is for a new tenant or a renewing tenant, tenant improvement
allowance, and lease concessions. At Tenant's request, Landlord shall provide
copies of the leases (excluding irrelevant, confidential portions thereof) used
by Landlord in calculating Landlord's proposed Building market rate. If there
are insufficient leases in such office buildings during the previous twelve
(12)-month period to establish the Building market rate, or if Landlord and
Tenant are unable to agree upon the Building market rate for the Premises based
upon leases in such office buildings within thirty (30) days after Tenant's
receipt of Landlord's proposed Building market rate and such requested lease
copies, then the following provisions shall apply:
(i) Landlord and Tenant shall mutually select an MAI
appraiser with at least ten (10) years experience in the metro Atlanta
area. If Landlord and Tenant are unable to agree on an appraiser
within twenty (20) days, Landlord and Tenant each shall select an MAI
appraiser who shall then select a third MAI appraiser to act as the
arbitrator (the appraiser so selected by Landlord and Tenant mutually,
or by said appraisers, shall be referred to herein as the
"ARBITRATOR"). Landlord and Tenant shall share the costs of the
Arbitrator and each shall pay the costs of any appraiser selected by
such party and not acting as the Arbitrator.
(ii) Within ten (10) days after selection of the
Arbitrator, Landlord and Tenant shall each submit to the Arbitrator
such party's proposed Building market rental rate.
(iii) Within thirty (30) days after the receipt by the
Arbitrator of each party's proposed Building market rental rate, the
Arbitrator shall then select either Landlord's or Tenant's proposed
Building market rental rate as the Building market rental rate. The
Arbitrator shall promptly provide written notice to Landlord and
Tenant of the Arbitrator's selection of the Building market rental
rate, and such selection shall be final and binding on Landlord and
Tenant.
4. Right of First Refusal. Provided Tenant is not in uncured
default at the time of exercise, Tenant shall have an on-going right of first
refusal (the "ROFR") on unleased portions of the Adjoining Floor Space (as
defined in Paragraph 5 of this Exhibit "E") (such unleased portions being
hereinafter collectively referred to as the "ROFR Space"). Upon receipt of
written notice from Landlord (an "ROFR Notice") that a third party has made a
bonafide written offer to lease all or any marketable portion of such ROFR
Space, such notice including, without limitation, a copy of such third party
offer, that Landlord intends to accept, Tenant shall respond to Landlord within
seven (7) business days as to whether it intends to lease such ROFR Space. If
Tenant indicates that it will not lease the ROFR Space offered in the ROFR
Notice, or if Tenant fails to respond within said seven (7) business day
period, Landlord may proceed to lease such ROFR Space to a third party or
parties on terms which shall not be more favorable to the tenant than as set
forth in the third party offer, and Tenant shall have waived its right to lease
such ROFR Space, provided that Landlord leases such ROFR Space within one
hundred eighty (180) days thereafter. If Landlord fails to so lease such ROFR
Space, then such ROFR Space must again be offered by Landlord to Tenant
pursuant to this paragraph before Landlord may lease such ROFR Space to any
parties other than Tenant. If Tenant indicates that it will lease such ROFR
Space offered, Tenant and Landlord shall execute an amendment to this Lease for
such ROFR Space within ten (10) days of Tenant notifying Landlord of its
intention to lease such ROFR Space, such amendment to be on the same terms set
forth in such third party offer; excepting, however, that (a) the term for such
ROFR Space shall be coterminous with the term for the original Premises under
this Lease (but in no event less than three (3) years as to such ROFR Space),
and (b) the tenant improvement allowance set forth in such third party offer
shall be adjusted on a prorata basis to reflect the adjustment in the term of
said third-party offer made necessary to make said term coterminous with the
term for the original Premises under this Lease.
5. Adjoining Floor Space. Prior to the leasing of all office
space in the Building other than the 24,637 rentable square feet of space in
the Building immediately adjacent to the Premises (the "Adjoining Floor
Space"), Landlord shall lease the Adjoining Floor Space only to Tenant or to
other prospective tenants whose needs as to contiguous space on a single floor
of the Building (or two floors, if the Adjoining Floor Space is not all on one
floor) cannot be met by other available space in the Building, as reasonably
demonstrated by Landlord to Tenant. For purposes hereof, the Adjoining Floor
Space shall be (a) the entire sixth (6th) floor of the Building, if Tenant does
not increase the size of the Premises pursuant to the provisions preceding
Paragraph 1 of this Lease to include any portion of the sixth (6th) floor of
the Building, (b) the entire seventh (7th) floor of the Building, if Tenant
does increase the size of the Premises pursuant to the provisions preceding
Paragraph 1 of this Lease to include all of the sixth (6th) floor of the
Building, (c) the remaining unleased portion of the sixth (6th) floor and a
portion of the seventh (7th) floor of the Building, if Tenant does increase the
size of the Premises pursuant to the provisions preceding Paragraph 1 of this
Lease to include a portion, but not all, of the sixth (6th) floor of the
Building, (d) the remaining unleased portion of the fifth (5th) floor and a
portion of the sixth (6th) floor of the Building, if Tenant decreases the size
of the Premises pursuant to the provisions preceding Paragraph 1 of this Lease
so that the Premises includes a portion, but not all, of the fifth (5th) floor
of the Building; (e) the entire eighth (8th) floor of the Building, if Tenant
does increase the size of the Premises pursuant to the provisions preceding
Paragraph 1 of this Lease to include all of the sixth (6th) and seventh (7th)
floors of the Building; or (f) the remaining unleased portion of the seventh
(7th) floor and a portion of the eighth (8th) floor of the Building, if Tenant
does increase the size of the Premises pursuant to the provisions preceding
Paragraph 1 of this Lease to include the entire sixth (6th) floor and a
portion, but not all, of the seventh (7th) floor of the Building.
6. Leasing of Additional Space. In the event that Tenant desires
to lease (other than pursuant to the ROFR) any unleased portion of the ROFR
Space for the remainder of the Lease Term (but in any event for at least three
(3) years), then the rental rate for such space shall be the then current
Building market rate (as determined in accordance with the provisions for
determining Building market rate set forth in Paragraph 3 of this Exhibit E).
In such event, the tenant improvement allowance for such ROFR Space shall be
Landlord's Allowance set forth in this Lease per rentable square foot, reduced
on a prorata basis to reflect the shorter lease term for such ROFR Space, so
that the actual improvement allowance for such ROFR Space bears the same
proportion to the stated Landlord's Allowance set forth in this Lease as the
actual term for such ROFR Space bears to the original twelve (12)-year term of
this Lease.
7. Signage Rights.
(a) So long as (i) PRG-▇▇▇▇▇▇▇ International, Inc., as
Tenant, leases and occupies at least One Hundred Seven Thousand Sixteen
(107,016) rentable square feet of space in the Building, (ii) more than seventy
five percent (75%) of the rentable square feet of space in the Building have
been leased to one or more tenants, and (iii) PRG-▇▇▇▇▇▇▇ International, Inc.
leases and occupies more rentable square feet of space in the Building than any
other single tenant in the Building, then PRG-▇▇▇▇▇▇▇ International, Inc. shall
have the right, but only during the original twelve (12) year term of this
Lease, to place PRG-▇▇▇▇▇▇▇ International, Inc.'s name on an exterior face of
the Building on or at the top of the Building; provided, however, that if
condition (i) set forth in this sentence shall cease to be true, then
PRG-▇▇▇▇▇▇▇ International, Inc. shall no longer have such right and, if such
sign has been installed, shall remove such sign and repair any damage
therefrom. All costs relating to the installation, construction, maintenance
and removal of such sign shall be at the expense of PRG-▇▇▇▇▇▇▇ International,
Inc. Such signage shall in all events be subject to Landlord's prior
architectural approval and approval as to location, and to compliance with all
applicable governmental rules and regulations. The rights of PRG-▇▇▇▇▇▇▇
International, Inc. set forth in this paragraph 7(a) shall not be assignable or
transferable to any other person or entity, except that an assignee of this
Lease that is an entity that Tenant controls, is controlled by Tenant, or is
under common control with Tenant may continue to exercise such rights in
accordance with this Paragraph 7(a). Landlord shall not permit any other tenant
in the Building leasing less than thirty-five percent (35%) of the total
rentable square feet in the Building to place signage on an exterior face of
the Building on or at the top of the Building.
(b) Subject to Landlord's prior architectural approval
and to compliance with all applicable governmental rules and regulations,
Tenant, at Tenant's expense, shall be entitled to place Tenant's signage on the
monument sign for the Building. To the extent available, Tenant may apply the
Tenant Allowance towards such cost. Landlord agrees that Landlord shall not
grant to more than six tenants total, or to any tenant in the Building leasing
less than 24,500 rentable square feet of space, the right to place signage on
such monument sign for the Building. Tenant shall have the right to have the
top position on the Building monument sign if so desired by Tenant, unless
Landlord leases a premises in the Building containing more rentable area to
another tenant prior to Tenant's ordering of the fabrication of its signage for
such monument sign.
8. Reserved Parking Spaces. At such time as at least seventy
five percent (75%) of the Building is leased and occupied, Landlord shall
provide to Tenant six (6) reserved covered parking spaces in the parking deck
adjoining the Building. Such reserved spaces shall be marked with Landlord's
standard signage for reserved parking spaces, and shall be free of charge to
Tenant. Landlord shall not provide to any other tenant in the Building reserved
parking spaces at materially more favorable locations than, or sooner than,
those provided to Tenant.
9. Storage Space. Landlord shall lease 3,000 usable square feet
of storage space in the Building to Tenant, and Tenant shall lease such space
from Landlord, upon the terms and conditions contained in this Lease for the
term hereof; provided, however, that the rental rate for such storage space
shall be $13.00 per usable square foot throughout the term of this Lease. Such
storage space shall not be counted or included for purposes of the calculation
of Tenant's percentage share of Direct Operating Expenses, and Tenant shall not
be required to pay Direct Operating Expenses rent pursuant to paragraph 2(c) of
this Lease with respect to such storage space. Tenant
shall pay all reasonable costs of subdividing the Building storage space to
accommodate Tenant's use thereof, including, without limitation, one-half (1/2)
of the cost of any walls installed to separate and demise such storage space
from the other storage space not leased by Tenant and/or from public corridors.
10. Health Club Initiation Fees Waiver. Landlord shall cause the
operator of the health club located in the ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Building to
waive all up-front or one-time initiation fees and charges (but not the
periodic dues) for all employees of Tenant, during the term of this Lease.
11. Georgian Club Initiation Fees Waiver. Landlord shall pay (or
cause to be waived) all up-front or one-time initiation fees and charges for up
to ten (10) memberships for Tenant in the Georgian Club located in the ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Building, during the term of this Lease.
12. Subleasing Tenant's Existing Space. Tenant has represented to
Landlord, and Landlord acknowledges, that Tenant is currently the tenant under
that certain Lease ("Tenant's Existing Lease") dated July 11, 1998, between
Tenant, as tenant thereunder, and Wildwood Associates, as landlord thereunder
("Existing Lease Landlord"), for space ("Tenant's Existing Space") identified
as Suite 900 and containing approximately 62,576 rentable square feet of space
in the building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇. Tenant represents
to Landlord that the term of Tenant's Existing Lease shall expire on February
28, 2005. In the event that Tenant sublets any portion of Tenant's Existing
Space, Tenant shall pay to Landlord as additional rent an amount equal to fifty
percent (50%) of any Existing Space Rent (as defined below) when and as such
Existing Space Rent is received by Tenant. As used in this paragraph, "Existing
Space Rent" shall mean the excess of (i) all rents and other consideration
which Tenant is entitled to receive by reason of any sublease of Tenant's
Existing Space, less any reasonable costs incurred by Tenant in connection with
the sublease for usual and customary subleasing costs and expenses including,
without limitation, tenant concessions, improvements and/or other tenant
inducements or allowances, brokerage commissions and legal fees, over (ii) the
sum of (y) the rent otherwise payable for such portion of Tenant's Existing
Space under Tenant's Existing Lease at such time, and (z) any transaction fees
and/or "share" of subletting proceeds owed by Tenant to Existing Lease
Landlord. For purposes of the foregoing, any consideration received by Tenant
in form other than cash shall be valued as its fair market value. Tenant shall
not amend or modify Tenant's Existing Lease, assign Tenant's Existing Lease, or
sublet all or any portion of Tenant's Existing Space without the prior written
approval of Landlord, which shall not be unreasonably withheld, conditioned or
delayed.
13. Satellite Dish. The following shall be applicable with
respect to any satellite dish Tenant wishes to install:
(a) Tenant shall have the right, at Tenant's sole cost
and expense, to install, maintain and operate a satellite dish antenna (or
other communication equipment with a similar use) and related equipment (the
"Dish") at a location on the roof of the Building mutually agreeable to
Landlord and Tenant. The Dish shall be adequately screened from view and shall
not be visible from ground level.
(b) If Tenant desires to locate the Dish on the roof of
the Building, Tenant must first provide reasonable verification to Landlord
that the weight of the Dish, method of installation and its location on the
roof will not damage or harm the roof or other parts of the Building. Landlord
will permit Tenant reasonable access to the roof of the Building, as needed, to
install, maintain, operate, repair and/or remove the Dish. Tenant will exercise
every reasonable effort to minimize any disruption of activity otherwise
occurring in and about the Project in connection with Tenant's installation,
maintenance and removal of the Dish. Any work involving penetration of the roof
shall be performed by contractor(s) selected by Landlord or otherwise approved
by Landlord in Landlord's sole, good faith discretion.
(c) Landlord may request that Tenant relocate the Dish,
but only if Landlord is required to do so by applicable laws. In such event,
Landlord and Tenant will agree to cooperate with each other to identify an
alternate location on the Building that will comply with such laws. All
expenses incurred in relocating the Dish pursuant to this subparagraph (c)
shall be borne by Tenant.
(d) Tenant will insure that the Dish and each part of it
will be installed in accordance with all local building and other laws. Tenant
will immediately remove and hereby agrees to indemnify, defend and hold
Landlord harmless in connection with any mechanics' liens upon the Property or
the Building which result from work associated with the installation,
maintenance or removal of the Dish. Tenant will obtain all FCC and all other
licenses or approvals required to install and operate the Dish and shall
operate the Dish in a manner that will not interfere with the quiet enjoyment
or business operations of other tenants in the Building.
(e) Tenant shall indemnify and hold Landlord harmless
from and against any and all claims, costs, demands, damages, and liabilities
arising from Tenant's installation, removal, use or maintenance of the Dish.
Such indemnity shall include damage to property (including the roof of the
Building) and injury or death to persons.
(f) Tenant, at Tenant's sole cost and expense, shall
remove the Dish upon the expiration or termination of this Lease and shall
repair all damage to the Building or the Project as a result of Tenant's
installation, maintenance, use or removal of the Dish.
14. Additional Amenities. During the Lease Term, Landlord shall
maintain in the Building a conference room facility (having a size at least
comparable to the existing conference room facility designated on Exhibit D
hereto) for use by tenants in the Building. During the Lease Term, Landlord
shall at all times keep space available for lease for a food service facility
at the location in the Building designated on the floor plan attached
hereto as Exhibit D or at another location in the Building having a size
comparable to the food service facility designated on Exhibit D hereto, and
Landlord shall use good faith efforts to lease such space to a food service
operator to provide food service to tenants in the Building.
15. Certain Tenants. Landlord hereby acknowledges that it is
Landlord's intention to lease, maintain and operate the Building and the common
areas thereof as a first-class, or class "A", building in the northwest
metropolitan Atlanta office leasing sub-market. As such, without Tenant's prior
approval, Landlord shall not lease space in the Building to a governmental
entity, the leasing to which would, at the time of such leasing, necessitate
substantial increases in the Direct Operating Expenses of the Building that
would be passed through to Tenant or material adverse restrictions upon access,
ingress and egress to and from the Building, parking deck and/or other common
areas by Tenant and its agents, employees, invitees and visitors during normal
business hours.
EXHIBIT "F"
LEASE GUARANTY
[Intentionally omitted.]
EXHIBIT "G"
INSURANCE
1. COMMERCIAL GENERAL LIABILITY POLICY (1986 OR LATER EDITION)
General Liability Limits:
$2,000,000 General Aggregate
$2,000,000 Products and Completed Operations
$1,000,000 Personal and Advertising Injury
$1,000,000 Each Occurrence
$50,000 Fire Damage Limit (any one fire)
$5,000 Medical Expense Limit (any one person)
Said policy shall have no deductible on Self Insured Retention without
prior written approval.
2. UMBRELLA/EXCESS LIABILITY
General Limits:
$1,000,000 Each Occurrence
$1,000,000 General Aggregate
3. WORKERS COMPENSATION
The policy must comply with all statutory requirements
Employer's Liability:
$100,000 Bodily injury by accident
$500,000 Policy limit by disease
$100,000 Bodily injury by disease each employee
4. TENANT PROPERTY
The policy must cover all direct physical loss equal to 100%
replacement cost of Tenant's personal property, all improvements and
alterations, fixtures and equipment.
All of said policies shall: (i) name Landlord, Landlord's agent, and Childress
▇▇▇▇▇ Properties, Inc., together with their respective affiliates, as
additional insureds and insure Landlord's contingent liability under this Lease
(except for the worker's compensation policy, which shall instead include a
waiver of subrogation endorsement in favor of Landlord), (ii) be issued by an
insurance company licensed to do business in the State of Georgia which is
acceptable to Landlord and rated at least "A" by A.M. Bests Rating Guide, and
(iii) provide that said insurance shall not be canceled unless thirty (30) days
prior written notice shall have been given to Landlord and Landlord's property
manager. Said policies or certificates thereof shall be delivered to Landlord
and Landlord's property manager by Tenant upon commencement of the term of the
Lease and upon each renewal of said insurance.