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LEASE AGREEMENT
BY AND BETWEEN
WILDWOOD ASSOCIATES
("LANDLORD")
AND
MANHATTAN ASSOCIATES, INC.
("TENANT")
DATED
JUNE 25, 2001
FOR
SUITE NUMBER 700
CONTAINING
135,398 SQUARE FEET OF RENTABLE FLOOR AREA
TERM: 63 MONTHS
2300 WINDY RIDGE PARKWAY
ATLANTA, GEORGIA 30339
<PAGE> 2
TABLE OF CONTENTS
Page
----
1. Certain Definitions 1
2. Lease of Premises 4
3. Term 4
4. Possession 4
5. Rental Payments 5
6. Base Rental 6
7. Rent Escalation 6
8. Additional Rental 7
9. Operating Expenses 9
10. Tenant Taxes; Rent Taxes 13
11. Payments 13
12. Late Charges 14
13. Use Rules 14
14. Alterations 15
15. Repairs 15
16. Landlord's Right of Entry 17
-- ii
<PAGE> 3
17. Insurance 17
18. Waiver of Subrogation 19
19. Default 19
20. Waiver of Breach 21
21. Assignment and Subletting 22
22. Destruction 23
23. Landlord's Lien 24
24. Services by Landlord 24
25. Attorneys' Fees and Homestead 25
26. Time 25
27. Subordination and Attornment 25
28. Estoppel Certificates 27
29. No Estate 27
30. Cumulative Rights 27
31. Holding Over 27
32. Surrender of Premises 28
33. Notices 28
34. Damage or Theft of Personal Property 29
-- iii
<PAGE> 4
35. Eminent Domain 29
36. Parties 30
37. Liability 30
38. Relocation of the Premises 31
39. Force Majeure 32
40. Landlord's Liability 32
41. Landlord's Covenant of Quiet Enjoyment 32
42. Security Deposit 32
43. Hazardous Substances 33
44. Submission of Lease 34
45. Severablity 34
46. Entire Agreement 34
47. Headings 35
48. Broker 35
49. Governing Law 35
50. Special Stipulations 35
51. Authority 35
52. Financial Statements 36
-- iv
<PAGE> 5
53. Joint and Several Liability 36
54. ERISA Compliance 36
Rules and Regulations
Exhibit "A" -- Legal Description of Land
Exhibit "B" -- Floor Plan
Exhibit "B-1" -- Floor Plan
Exhibit "C" -- Supplemental Notice
Exhibit "D" -- Landlord's Construction
Exhibit "E" -- Building Standard Services
Exhibit "F" -- Guaranty - Intentionally Deleted
Exhibit "G" -- Special Stipulations
Exhibit "H" -- Calculation Example for Expansion Space and Sublease Value
Exhibit "I" -- Cleaning Specifications
Exhibit "J" -- Form of Subordination, Non-Disturbance and Attornment
-- v
<PAGE> 6
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease"), is made and entered into this 25th day
of June, 2001, by and between Landlord and Tenant.
W I T N E S S E T H:
1. Certain Definitions. For purposes of this Lease, the following
terms shall have the meanings hereinafter ascribed thereto:
(a) Landlord: WILDWOOD ASSOCIATES, a Georgia general
partnership
(b) Landlord's Address:
Wildwood Associates
2500 Windy Ridge Parkway
Suite 1600
Atlanta, Georgia 30339-5683
Attn: Corporate Secretary
(c) Tenant: Manhattan Associates, Inc.
(d) Tenant's Address:
Suite 700
2300 Windy Ridge Parkway
Atlanta, Georgia 30339
Attn: Real Estate Director
(e) Building Address:
2300 Windy Ridge Parkway
Atlanta, Georgia 30339
(f) Suite Number: 700
(g) (A) Rentable Floor Area of Demised Premises: 135,398
square feet (with the detail of where such square feet are located
shown on Exhibit "B-1", by this reference incorporated herein). The
Rentable Floor Area for that portion of the Demised Premises located on
a floor on which Tenant leases some, but not all, of the floor, shall
be calculated by determining the usable square feet within such Demised
Premises, and multiplying said amount by 1.17. The Rentable Floor Area
for any portion of the Demised Premises located on a floor which Tenant
leases in its entirety shall be calculated by measuring the usable
square feet on such floor, and multiplying said amount by 1.1026.
Usable square feet shall
<PAGE> 7
be measured and determined in accordance with the 1996 version of the
Standard Method of Measuring Floor Area in Office Buildings, American
National Standard (ANSI Z65.1), published by the Building Owners and
Managers Association International, but expressly including the
elevator lobbies on floors leased entirely by Tenant.
(B) Tenant shall have the right to review the Rentable
Floor Area of any "Expansion Space" (as that term is herein defined)
within ninety (90) days after Tenant has elected to lease such
Expansion Space, to confirm that such measurement accurately reflects
the exact number of Rentable Floor Area of the Expansion Space in
question (using only the factors set forth above). If Tenant disagrees
with the figure for the square feet of Rentable Floor Area set forth
herein, Tenant shall have the right, at Tenant's expense, to cause a
measurement of the Expansion Space in question to determine the square
feet of Rentable Floor Area. Tenant shall provide notice to Landlord of
Tenant's calculations following Tenant's completion thereof, and in any
event within the ninety (90) day period set forth above. If the parties
do not agree on the final measurement for such space, then such matter
shall be submitted to and resolved as provided herein.
(C) Either party shall have the right to initiate the
process described below, by giving written notice thereof to the other
party. Upon the initiation, Landlord and Tenant shall each promptly
select a reputable, disinterested architect having at least ten (10)
years experience designing office buildings and/or leasehold
improvements for office buildings in the Atlanta metropolitan area.
Said architects shall measure the Expansion Space in question, and
shall select a third architect to measure the Expansion Space in
question, all on the basis as described herein. The measurement of the
third architect (selected by the other architects) shall govern, unless
the number of square feet of Rentable Floor Area determined by the
third architect is more than the greater of the prior two calculations,
than the greater of the prior two calculations shall be deemed to be
the number of Rentable Floor Area; and if the number of square feet of
Rentable Floor Area determined by the third architect is less than the
lesser of the prior two calculations, then the lesser of the prior two
calculations shall be deemed to be the number of square feet of
Rentable Floor Area. Landlord and Tenant shall pay the fees and charges
of their respective architects. If the final determination of Rentable
Floor Area is more than that asserted by Tenant and Landlord, then
Tenant shall pay the fees and charges of the third architect, and if
the final determination of Rentable Floor Area is less than that
asserted by Tenant and Landlord, then Landlord shall pay the fees and
charges of the third architect. If neither is the case, then Landlord
and Tenant shall split the fees and charges of the third architect.
(h) Rentable Floor Area of Building: 614,543 square feet.
(i) Lease Term: Variable periods, but ending, unless
sooner terminated in accordance with the terms hereof, on March 31,
2008.
(j) Base Rental Rate: $15.20 per square foot of Rentable
Floor Area of Demised Premises per year, subject to adjustments as set
forth in Article 7 below.
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<PAGE> 8
(k) Rental Commencement Date: (A) As to the "1st Floor
North Space" (as defined on Exhibit "B-1"), on the earlier of (x) April
1, 2003 or (y) the date upon which Tenant takes possession and occupies
the Demised Premises for the purpose of conducting business therein;
provided that if the Demised Premises are not ready for occupancy on
the date set forth in (x) above due to delays not caused by Tenant or
its employees, agents or contractors, then the date set forth in (x)
above shall be postponed to the date on which the Demised Premises are
ready for occupancy. Landlord shall attempt to deliver to 1st Floor
North Space to Tenant on January 1, 2003. If Landlord is not able to do
so, because the tenant currently in occupancy thereof holds over past
its lease term, Landlord shall use all reasonable efforts to acquire
the access and rights to such space including, but not limited to,
filing and pursuing a dispossessory action. If Landlord is not able to
deliver the 1st Floor North Space to Tenant by January 1, 2003, then,
as Tenant's sole remedy, the aforesaid date of April 1, 2003 shall be
moved back and delayed by fourteen (14) days, plus a day for every day
after January 1, 2003 that Landlord is unable to deliver the 1st Floor
North Space. If Landlord is not able to deliver the 1st Floor North
Space to Tenant by April 30, 2003, then Tenant, in Tenant's sole
discretion, shall be entitled to terminate this Lease, as to such 1st
Floor North Space only, by a notice of such election delivered to
Landlord, if at all, on or before June 30, 2003. In such a termination,
neither party hereto shall have any further rights or responsibilities
with respect to said 1st Floor North Space, and, by way of illustration
but not limitation, the Construction Allowance due from Landlord shall
be reduced by $454,380.00. If Tenant does not elect to terminate the
Lease as to the 1st Floor North Space for the aforesaid cause, then
Landlord will use reasonable, best-efforts efforts to attempt to locate
and make available temporary space for Tenant to utilize in the
Building, until Landlord is able to deliver the 1st Floor North Space
to Tenant.
(B) As to the "6th Floor LOMA Space" (as defined on
Exhibit "B-1"), on November 1, 2005.
(C) As to the "8th Floor Chevron Space" (as defined on
Exhibit "B-1"), on April 1, 2005.
(D) As to the remainder of the Demised Premises not
otherwise addressed above, on January 1, 2003.
(l) Rent Deposit: None
(m) Construction Allowance: $1,017,775.00, determined by
factoring an allowance of (i) $20.00 per square foot of Rentable Floor
Area for the 1st Floor North Space; and (ii) $5.00 per square foot of
Rentable Floor Area for the remainder of the Demised Premises.
(n) Security Deposit: $90,361.47, which has already been
paid to and shall be retained by Landlord. (Article 42[a]), and which
shall be returned to Tenant after January 1, 2003, so long as no event
of default on the part of Tenant has occurred and is then continuing.
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(o) Broker(s): Cousins Properties Incorporated
("CPI") and Insignia/ESG
2. Lease of Premises.
(a) Landlord, in consideration of the covenants and
agreements to be performed by Tenant, and upon the terms and conditions
hereinafter stated, does hereby rent and lease unto Tenant, and Tenant
does hereby rent and lease from Landlord, certain premises (the
"Demised Premises") in the building (hereinafter referred to as
"Building") located on that certain tract of land (the "Land") more
particularly described on Exhibit "A" attached hereto and by this
reference made a part hereof, which Demised Premises are outlined in
red or crosshatched on the floor plans attached hereto as Exhibit "B"
and by this reference made a part hereof, with no easement for light,
view or air included in the Demised Premises or being granted
hereunder. The Demised Premises, as currently comprised, are as shown
on Exhibit "B-1" attached hereto and by this reference incorporated
herein. The "Project" is comprised of the Building, the Land, the
Building's parking facilities, any walkways, covered walkways, tunnels
or other means of access to the Building and the Building's parking
facilities, all common areas, including any lobbies or plazas, and any
other improvements or landscaping on the Land. The Project is located
in the development known as "Wildwood Office Park". Tenant shall have
the right to use the Project in common with other parties, in
consideration for the Rent defined herein.
(b) This Lease supersedes and replaces that certain Lease
Agreement, by and between Landlord and Tenant, originally dated
September 24, 1997 (as amended from time to time collectively the
"Original Lease"), except for the rates of Rent due thereunder from
Tenant, which shall be in force and effect for the space described
therein, through the Rental Commencement Dates set forth herein.
3. Term. The term of this Lease ("Lease Term") shall commence on
the date first hereinabove set forth, and, unless sooner terminated as provided
in this Lease, shall end on the expiration of the period designated in Article
1(i) above, which period shall commence on the various Rental Commencement Dates
described above, unless the relevant Rental Commencement Date described above
shall be other than the first day of a calendar month, in which event such
period shall commence on the first day of the calendar month following the month
in which the Rental Commencement Date in question occurs. Promptly after the
Rental Commencement Date in question occurs, Landlord shall send to Tenant a
Supplemental Notice in the form of Exhibit "C" attached hereto and by this
reference made a part hereof, specifying the Rental Commencement Date in
question, the date of expiration of the Lease Term in accordance with Article
1(i) above and certain other matters as therein set forth.
4. Possession.
(a) The obligations of Landlord and Tenant with respect
to the initial leasehold improvements to the Demised Premises are set
forth in Exhibit "D" attached hereto and by
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<PAGE> 10
this reference made a part hereof. Tenant is in possession of all of
the Demised Premises (through lease or sublease), except for the 1st
Floor North Space.
(b) Tenant's rights to the 6th Floor LOMA Space are
subject and subordinate to the party currently in possession thereof
renewing its lease in accordance with the existing terms of such
party's lease, (including the rental rate set forth for such renewal).
If such party does renew its lease under the terms set forth in the
preceding sentence, then Tenant shall have no rights to such 6th Floor
LOMA Space, and will have to vacate such 6th Floor LOMA Space which
Tenant now occupies. If Tenant is required to vacate such 6th Floor
LOMA Space, Landlord will use Landlord's reasonable, best-efforts
efforts to locate other space for Tenant in the Building, to lease and
occupy, on such terms and conditions as Landlord and Tenant, in their
respective reasonable judgment, may agree.
5. Rental Payments.
(a) Commencing on the Rental Commencement Date, and
continuing thereafter throughout the Lease Term, Tenant hereby agrees
to pay all Rent due and payable under this Lease. As used in this
Lease, the term "Rent" shall mean the Base Rental, Tenant's Forecast
Additional Rental, Tenant's Additional Rental, and any other amounts
that Tenant assumes or agrees to pay under the provisions of this Lease
that are owed to Landlord, including without limitation the amounts due
or paid under Article 8(B) of Exhibit "D" and any and all other sums
that may become due by reason of any default of Tenant or failure on
Tenant's part to comply with the agreements, terms, covenants and
conditions of this Lease to be performed by Tenant. Base Rental
together with Tenant's Forecast Additional Rental shall be due and
payable in twelve (12) equal installments on the first day of each
calendar month, commencing on the Rental Commencement Date and
continuing thereafter throughout the Lease Term and any extensions or
renewals thereof, and Tenant hereby agrees to pay such Rent to Landlord
at Landlord's address as provided herein (or such other address as may
be designated by Landlord from time to time) monthly in advance. Tenant
shall pay all Rent and other sums of money as shall become due from and
payable by Tenant to Landlord under this Lease at the times and in the
manner provided in this Lease, without demand, set-off or counterclaim.
(b) If the Rental Commencement Date is other than the
first day of a calendar month or if this Lease terminates on other than
the last day of a calendar month, then the installments of Base Rental
and Tenant's Forecast Additional Rental for such month or months shall
be prorated on a daily basis and the installment or installments so
prorated shall be paid in advance. Also, if the Rental Commencement
Date occurs on other than the first day of a calendar year, or if this
Lease expires or is terminated on other than the last day of a calendar
year, Tenant's Additional Rental shall be prorated for such
commencement or termination year, as the case may be, by multiplying
such Tenant's Additional Rental by a fraction, the numerator of which
shall be the number of days during the commencement or expiration or
termination year, as the case may be, and the denominator of which
shall be 365, and the calculation described in Article 8 hereof shall
be made as soon as possible after the expiration or termination of this
Lease, Landlord and
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Tenant hereby agreeing that the provisions relating to said calculation
shall survive the expiration or termination of this Lease.
6. Base Rental. Subject to adjustments in accordance with Article
7 below, from and after the Rental Commencement Date Tenant shall pay to
Landlord a base annual rental (herein called "Base Rental") equal to the Base
Rental Rate set forth in Article 1(j) above multiplied by the Rentable Floor
Area of Demised Premises set forth in Article 1(g) above.
7. Rent Escalation.
(a) As used in this Article 7, the term "Lease Year"
shall mean the twelve month period commencing on the Rental
Commencement Date, or, if the Rental Commencement Date is not on the
first day of a calendar month, commencing on the first day of the first
calendar month following the Rental Commencement Date, and each
successive twelve month period thereafter during the Lease Term. The
term "Subsequent Year" shall mean each Lease Year of the Lease Term
following the first Lease Year. The term "Prior Year" shall mean the
Lease Year prior to each Subsequent Year. The term "Index" shall mean
the Consumer Price Index for all Urban Consumers (U.S. City Average;
Base 1982-84=100), published by the Bureau of Labor Statistics of the
United States Department of Labor. The term "Base Month" shall mean the
calendar month which is two (2) months prior to the month during which
this Lease is fully executed by Landlord and Tenant. The term
"Comparison Month" shall mean the calendar month which is two (2)
months prior to the first full month of each Subsequent Year in
question.
(b) On the first day of each Subsequent Year, the Base
Rental Rate shall be increased to an amount equal to the Base Rental
Rate for the first Lease Year ($15.20) as set forth in Article 1(j)
above, plus an amount equal to the product of fifteen (15) times the
percentage increase in the Index for the Comparison Month as compared
to the Index for the Base Month, multiplied by the Base Rental Rate for
the first Lease Year ($15.20); provided, however, in no event shall the
Base Rental Rate for a Subsequent Year be less than the Base Rental
Rate applicable to the Prior Year and in no event shall the Base Rental
Rate for the Subsequent Year be greater than the following amounts for
the Lease Years shown:
Second Lease Year $ 15.732
Third Lease Year $ 16.282
Fourth Lease Year $ 16.852
Fifth Lease Year $ 17.442
Sixth Lease Year (Partial) $ 18.052
(c) If the Bureau of Labor Statistics should discontinue
the publication of the Index, or publish the same less frequently, or
alter the same in some manner, then Landlord shall adopt a substitute
Index or substitute procedure which reasonably reflects and monitors
consumer prices.
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8. Additional Rental.
(a) For purposes of this Lease, "Tenant's Forecast
Additional Rental" shall mean Landlord's reasonable estimate of
Tenant's Additional Rental for the coming calendar year or portion
thereof. If at any time it appears to Landlord that Tenant's Additional
Rental for the current calendar year will vary from Landlord's estimate
by more than five percent (5%), Landlord shall have the right, one (1)
time per calendar year, to revise, upon at least thirty (30) days prior
notice to Tenant, its estimate for such year, and subsequent payments
by Tenant for such year shall be based upon such revised estimate of
Tenant's Additional Rental. Failure to make a revision contemplated by
the immediately preceding sentence shall not prejudice Landlord's right
to collect the full amount of Tenant's Additional Rental. Prior to the
Rental Commencement Date and thereafter prior to the beginning of each
calendar year during the Lease Term, including any extensions thereof,
Landlord shall present to Tenant a statement of Tenant's Forecast
Additional Rental for such calendar year; provided, however, that if
such statement is not given prior to the beginning of any calendar year
as aforesaid, Tenant shall continue to pay during the next ensuing
calendar year on the basis of the amount of Tenant's Forecast
Additional Rental payable during the calendar year just ended until the
first month which is at least thirty (30) days after such statement is
delivered to Tenant.
(b) For purposes of this Lease, "Tenant's Additional
Rental" shall mean for each calendar year (or portion thereof) the
Operating Expense Amount (defined below) multiplied by the number of
square feet of Rentable Floor Area of Demised Premises. As used herein,
"Operating Expense Amount" shall mean an amount equal to (x) plus (y),
where:
(x) equals the amount of Operating Expenses (as defined below)
for such calendar year divided by the greater of (i) 95% of
the number of square feet of Rentable Floor Area of the
Building, or (ii) the total number of square feet of Rentable
Floor Area occupied in the Building for such calendar year on
an average annualized basis; provided, however, if the
Operating Expenses actually incurred by Landlord are lower
than would be incurred if at least 95% of the Building were
occupied or if Landlord shall not furnish any particular
item(s) of work or services (the cost of which would otherwise
be included within Operating Expenses) to portions of the
Building because (A) such portions are not occupied, (B) such
item of work or services is not required or desired by the
tenant of such portion, (C) such tenant is itself obtaining
such item of work or services, or (D) of any other reason,
then appropriate adjustments shall be made to determine
Operating Expenses for such calendar year as though the
Building were actually occupied to the extent of the greater
of (i) or (ii) above and as though Landlord had furnished such
item of work or services to the greater of (i) or (ii) above;
and
(y) equals a management fee contribution equal to three
percent (3%) of Tenant's Base Rental (on a per square foot
basis) plus three percent (3%) of the per square foot amount
described in (x).
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<PAGE> 13
(c) Within one hundred fifty (150) days after the end of
the calendar year, and each calendar year thereafter during the Lease
Term, or as soon thereafter as practicable, Landlord shall provide
Tenant a statement showing the Operating Expenses for said calendar
year, as prepared by a certified public accounting firm (as such firm
is designated by Landlord) in accordance with generally accepted
accounting principles, consistently applied ("GAAP"), and a statement
prepared by Landlord comparing Tenant's Forecast Additional Rental with
Tenant's Additional Rental. In the event Tenant's Forecast Additional
Rental exceeds Tenant's Additional Rental for said calendar year,
Landlord shall credit such amount against Rent next due hereunder or,
if the Lease Term has expired or is about to expire, refund such excess
to Tenant within thirty (30) days if Tenant is not in default under
this Lease (in the instance of a default such excess shall be held as
additional security for Tenant's performance, may be applied by
Landlord to cure any such default, and shall not be refunded until any
such default is cured). In the event that the Tenant's Additional
Rental exceeds Tenant's Forecast Additional Rental for said calendar
year, Tenant shall pay Landlord, within thirty (30) days of receipt of
the statement, an amount equal to such difference. The provisions of
this Lease concerning the payment of Tenant's Additional Rental shall
survive the expiration or earlier termination of this Lease.
(d) For so long as Tenant is not in default under this
Lease, Landlord's books and records pertaining to the calculation of
Operating Expenses for any calendar year within the Lease Term may be
audited by an authorized representative of Tenant at Tenant's expense,
at any time within eighteen (18) months after Tenant's receipt of the
reconciliation statement; provided that Tenant shall give Landlord not
less than thirty (30) days' prior written notice of any such audit. For
purposes hereof, an authorized representative of Tenant shall mean a
bona fide employee of Tenant, any reputable accounting firm, or any
other party reasonably approved in writing by Landlord. In no event
shall an authorized representative of Tenant include the owner of any
office building in the metropolitan Atlanta, Georgia area or any
affiliate of such owner. Prior to the commencement of such audit,
Tenant shall cause its authorized representative to agree in writing
for the benefit of Landlord that such representative will keep the
results of the audit confidential and that such representative will not
disclose or divulge the results of such audit except to Tenant and
Landlord and except in connection with any dispute between Landlord and
Tenant relating to Operating Expenses. Such audit shall be conducted
during reasonable business hours at Landlord's office where Landlord's
books and records are maintained. Tenant shall cause a written audit
report to be prepared by its authorized representative following any
such audit and shall provide Landlord with a copy of such report
promptly after receipt thereof by Tenant. If Landlord's calculation of
Tenant's Additional Rental for the audited calendar year was incorrect,
then Tenant shall be entitled to a prompt refund of any overpayment,
and Landlord shall also pay the reasonable costs of Tenant's audit, up
to, but not in excess of, Ten Thousand and No/100 ($10,000.00), if the
overpayment is ultimately determined to be greater than five percent
(5%) of the sum due for such year, or Tenant shall promptly pay to
Landlord the amount of any underpayment, as the case may be. If Tenant,
in good faith and with reasonable specificity and detail, protests any
portion of Additional Rental due from Tenant which is ultimately
determined to be not due from Tenant, then Landlord shall
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owe to Tenant the amount of such overcollection, plus interest on such
overcollected amount at the rate of twelve and one-half percent (12.5%)
per annum, such interest to accrue from July 1 of the year in which
such protest is made by Tenant. The provisions of this Lease concerning
the payment or refund of Tenant's Additional Rental shall survive the
expiration or earlier termination of this Lease.
9. Operating Expenses.
(a) For the purposes of this Lease, "Operating Expenses"
shall mean all reasonable and customary expenses, costs and
disbursements (but not specific costs billed to or for the benefit of
specific tenants of the Building) of every kind and nature, computed on
the accrual basis, relating to or incurred or paid in connection with
the ownership, management, operation, repair and maintenance of the
Project, including but not limited to, the following:
(1) wages, salaries and other costs of all
on-site and off-site employees engaged either full or part-time in the
day-to-day operation, management, maintenance or access control of the
Project, including taxes, insurance and benefits customarily provided
by Landlord relating to such employees, allocated based upon the time
such employees are engaged directly in providing such services;
(2) the cost of all supplies, tools, equipment
and materials used in the operation, management, maintenance and access
control of the Project;
(3) the cost of all utilities for the Project,
including but not limited to the cost of electricity, gas, water, sewer
services and power for heating, lighting, air conditioning and
ventilating;
(4) the cost of all maintenance and service
agreements for the Project and the equipment therein, including but not
limited to security service, garage operators, window cleaning,
elevator maintenance, HVAC maintenance, janitorial service, waste
recycling service, landscaping maintenance and customary landscaping
replacement;
(5) the cost of repairs and general maintenance
of the Project;
(6) amortization (together with reasonable
financing charges, whether or not actually incurred) of the cost of
acquisition and/or installation of capital investment items (including
security and energy management equipment), amortized over their
respective useful lives, which are installed for the purpose of
reducing operating expenses, promoting safety, complying with
governmental requirements, or maintaining the first-class nature of the
Project, but only to the extent such expenditures do accomplish such
goal and, for the purposes of reducing of Operating Expenses, the
amortization period shall equal the estimated payback period or useful
life, as reasonably determined by Landlord for the item in question;
provided, however, that Landlord shall not be entitled to pass on any
of Landlord's capital costs which arise out of any expansion of the
Buildings' parking
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structure after the date hereof, or in correcting a matter or item in
the Building which is a violation of a governmental requirement as of
the date of this Lease (other than expenditures to accomplish
reasonable accommodations under the Americans With Disabilities Act
(the "ADA", 42 U.S.C. ss. 12.101 et seq.) and (i) all such ADA
expenditures currently included in and as Operating Expenses may be
passed on to Tenant; and (ii) those ADA expenditures, other than those
described in 9(a)(6)(i) above, shall be amortized in accordance with
GAAP and the portion of which may be passed on to Tenant (on a pro-rata
basis) as a part of the current compliance program shall not exceed
$40,000.00 in any one year);
(7) the cost of casualty, rental loss, liability
and other insurance applicable to the Project and Landlord's personal
property used in connection therewith;
(8) the cost of trash and garbage removal, air
quality audits (except air quality audits specifically for the benefit
of a single tenant, that do not include analysis or testing of common
areas air quality or do not otherwise benefit the Building), vermin
extermination, and snow, ice and debris removal;
(9) the cost of legal and accounting services
incurred by Landlord in connection with the management, maintenance,
operation and repair of the Project, excluding the owner's or
Landlord's general accounting, such as partnership statements and tax
returns, and excluding services described in Article 9(b)(14) below;
(10) all taxes, assessments and governmental
charges, whether or not directly paid by Landlord, whether federal,
state, county or municipal and whether they be by taxing districts or
authorities presently taxing the Project or by others subsequently
created or otherwise, and any other taxes and assessments attributable
to the Project or its operation (and the costs of contesting any of the
same), including business license taxes and fees, excluding, however,
taxes and assessments imposed on the personal property of the tenants
of the Project, federal and state taxes on income, death taxes,
franchise taxes, and any taxes (other than business license taxes and
fees) imposed or measured on or by the income of Landlord from the
operation of the Project; and it is agreed that Tenant will be
responsible for ad valorem taxes on its personal property and on the
value of the leasehold improvements in the Demised Premises to the
extent that the same exceed Building Standard allowances, if said taxes
are based upon an assessment which includes the cost of such leasehold
improvements in excess of Building Standard allowances (and if the
taxing authorities do not separately assess Tenant's leasehold
improvements, Landlord may make an appropriate allocation of the ad
valorem taxes allocated to the Project to give effect to this
sentence);
(11) the cost of operating the management office for
the Project and an equitable portion of the cost of operating the
management office for Wildwood Office Park (and in either event
expressly exclusive of any costs of operating a leasing office) but
only such portion of said office that is devoted to managing or
operating the Wildwood Office Park, including in each case the cost of
office supplies, bulletins or newsletters distributed
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to tenants, postage, telephone expenses, maintenance and repair of
office equipment, non-capital investment equipment, amortization
(together with reasonable financing charges) of the cost of capital
investment equipment, and rent; and
(12) the pro rata share applicable to the Project
of the sum of (i) the costs of operation, maintenance, repair and
replacement of the landscaping and irrigation systems now or hereafter
located along Windy Ridge Parkway, Windy Hill Road, Wildwood Parkway,
Wildwood Plaza, the right-of-way areas of Powers Ferry Road adjoining
Wildwood Office Park, and all future roadways, whether public or
constructed in Wildwood Office Park, together with the landscaped
median strips and shoulders of such roadways (but not including the
landscaping and irrigation system located on the shoulder of any
roadway contiguous to a site upon which construction of improvements
has commenced) and any and all light systems located on or in any
rights-of-way for roads; (ii) ad valorem taxes on any roadways now or
hereafter located within Wildwood Office Park and on any medians
adjacent to public roads if such medians are not included in public
road rights-of-way; (iii) the costs of ownership, operation,
maintenance, repair and replacement of office park signage for Wildwood
Office Park and any underground sanitary sewer lines, storm water
drainage lines, electric lines, gas lines, water lines, telephone lines
and communication lines located across, through and under any public or
roadways now or hereafter located within Wildwood Office Park, except
for any such utility facilities serving solely another project within
Wildwood Office Park; (iv) the costs of ownership, operation,
maintenance, repair and replacement of any transportation system and
equipment from time to time provided or made available to the developed
portions of Wildwood Office Park, including but not limited to ad
valorem taxes on personal property or equipment, electricity, fuel,
painting and cleaning costs; (v) the costs and expenses of ownership
and operation of any security patrols or services, if any, from time to
time provided to Wildwood Office Park in general, but excluding any
such security patrols or services provided solely to another project
within Wildwood Office Park; and (vi) such other costs and expenses
incurred by Landlord as "Owner" of the Project under and pursuant to
that certain Master Declaration of Covenants and Cross-Easements for
Wildwood Office Park dated as of January 23, 1991, recorded in Deed
Book 5992, page 430, Cobb County, Georgia records, as modified, amended
or supplemented from time to time (the "Master Declaration"). The share
of the foregoing costs which are applicable to the Project shall be
determined in accordance with the Master Declaration.
(b) For purposes of this Lease, and notwithstanding
anything in any other provision of this Lease to the contrary,
"Operating Expenses" shall not include the following:
(1) the cost of any special work or service
performed for any tenant (including Tenant) at such tenant's cost;
(2) the cost of installing, operating and
maintaining any specialty service, such as an observatory, broadcasting
facility, luncheon club, restaurant, cafeteria, retail store, sundry
shop, newsstand, or concession, but the exclusion shall only be to the
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extent such costs exceed those costs which would normally be expected
to be incurred had such space been general office space;
(3) the cost of correcting defects in
construction;
(4) compensation paid to officers and executives
of Landlord (but it is understood that the office park manager, the
on-site building manager and other on-site employees below the grade of
building manager may carry a title such as vice president and the
salaries and related benefits of these officers/employees of Landlord
would be allowable Operating Expenses under Article 9[a][1] above, if
they perform the same or similar functions as an employee which has its
salary included in Operating Expenses);
(5) the cost of any items for which Landlord is
reimbursed by insurance, condemnation or otherwise, except for costs
reimbursed pursuant to provisions similar to Articles 8 and 9 hereof;
(6) the cost of any additions, changes,
replacements and other items which are made in order to prepare for a
new tenant's occupancy;
(7) the cost of repairs incurred by reason of
fire or other casualty reimbursed by insurance proceeds under policies
maintained by Landlord;
(8) insurance premiums to the extent Landlord
may be directly reimbursed therefor, except for premiums reimbursed
pursuant to provisions similar to Articles 8 and 9 hereof;
(9) interest on debt or amortization payments on
any mortgage or deed to secure debt (except to the extent specifically
permitted by Article 9[a]) and rental under any ground lease or other
underlying lease;
(10) any real estate brokerage commissions or
other costs incurred in procuring tenants or any fee in lieu of such
commission;
(11) any advertising expenses incurred in
connection with the marketing of any rentable space;
(12) costs related to the sale or financing of
the Project or Building;
(13) rental payments for base building equipment
such as HVAC equipment and elevators;
(14) costs of repair that are attributable to and
are the responsibility of other, specifically identifiable tenants in
the Building, or which arise out of the gross negligence or willful
misconduct of Landlord;
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(15) any expenses for repairs or maintenance
which are covered by warranties and service contracts, to the extent
such maintenance and repairs are made at no cost to Landlord;
(16) costs reimbursed by insurance;
(17) legal expenses arising out of the
construction of the improvements on the Land or the enforcement of the
provisions of any lease affecting the Land or Building, including
without limitation this Lease, and any accounting and legal fees and
related costs and expenses associated with actions against specific
tenants or governmental jurisdictions, unless such actions affect all
tenants equitably, and only if the projected benefit to the tenants
exceeds the projected costs;
(18) costs of any extraordinary cleanup,
containment, abatement, removal or remediation of "Hazardous
Substances" (as hereinafter defined) to the extent the introduction of
such Hazardous Substances is attributed to and is the responsibility of
another identifiable tenant in the Building, or is the result of a
Hazardous Substance which exists on the Property as of the date of this
Lease; and
(19) management fees (Tenant's obligation for a
management fee contribution is set forth in Article 8[b][y] above).
(c) Landlord, as part of Building Operating Costs, will continue
to provide all required maintenance on Building cold water supply for Tenant's
non-exclusive use and Tenant's HVAC systems, at no direct cost to Tenant. The
cold water supply will be available for Tenant 24 hours per day, 7 days per
week, subject to casualty and condemnation, and shall be maintained at the
temperatures sufficient for the Building system.
10. Tenant Taxes; Rent Taxes. Tenant shall pay promptly when due
all taxes directly or indirectly imposed or assessed upon Tenant's gross sales,
business operations, machinery, equipment, trade fixtures and other personal
property or assets, whether such taxes are assessed against Tenant, Landlord or
the Building. In the event that such taxes are imposed or assessed against
Landlord or the Building, Landlord shall furnish Tenant with all applicable tax
bills, public charges and other assessments or impositions and Tenant shall
forthwith pay the same either directly to the taxing authority or, at Landlord's
option, to Landlord. In addition, in the event there is imposed at any time a
tax upon and/or measured by the rental payable by Tenant under this Lease,
whether by way of a sales or use tax or otherwise, Tenant shall be responsible
for the payment of such tax and shall pay the same on or prior to the due date
thereof; provided, however, that the foregoing shall not include any
inheritance, estate, succession, transfer, gift or income tax imposed on or
payable by Landlord.
11. Payments. All payments of Rent and other payments to be made
to Landlord shall be made on a timely basis and shall be payable to Landlord or
as Landlord may otherwise designate. All such payments shall be mailed or
delivered to Landlord's Address designated in Article 1(b) above or at such
other place as Landlord may designate from time to time in writing. If
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mailed, all payments shall be mailed in sufficient time and with adequate
postage thereon to be received in Landlord's account by no later than the due
date for such payment. Tenant agrees to pay to Landlord Fifty Dollars ($50.00)
for each check presented to Landlord in payment of any obligation of Tenant
which is not paid by the bank on which it is drawn, together with interest from
and after the due date for such payment at the rate of eighteen percent (18%)
per annum on the amount due.
12. Late Charges. Any Rent or other amounts payable to Landlord
under this Lease, if not paid by the fifth day of the month for which such Rent
is due, or by the due date specified on any invoices from Landlord (none of
which invoices shall be due less than thirty (30) days after notice thereof is
given to Tenant) for any other amounts payable hereunder, shall incur a late
charge of Fifty Dollars ($50.00) for Landlord's administrative expense in
processing such delinquent payment and in addition thereto shall bear interest
at the rate of eighteen percent (18%) per annum from and after the due date for
such payment; provided, however, that the aforesaid late charge shall not be due
the first time in any calendar year that a payment due from Tenant is not made
on a timely basis, unless such payment is not made within ten (10) days of the
date written notice of such late payment is given to Tenant. In no event shall
the rate of interest payable on any late payment exceed the legal limits for
such interest enforceable under applicable law.
13. Use Rules. The Demised Premises shall be used for executive,
general administrative and office space purposes, and for training; data
retention; sales; marketing; as a health facility (but only for Tenant's
employees and guests); and as a vending area (but only for Tenant's employees
and guests), all in accordance with all applicable laws, ordinances, rules and
regulations of governmental authorities and the Rules and Regulations attached
hereto and made a part hereof. Any portion of the Demised Premises used for a
health facility or vending area shall not be visible from the first (1st) floor
lobby area of the Building. In no event shall any destination-end retail
activities be conducted from the Demised Premises. The average occupancy rate of
the Demised Premises (measured during the "Building Operating Hours" (as herein
defined, and excluding times when employees are typically not in the Demised
Premises) shall in no event be more than one (1) person per 150 square feet of
Rentable Floor Area within the Demised Premises. Tenant covenants and agrees to
abide by the Rules and Regulations in all respects as now set forth and attached
hereto or as hereafter promulgated by Landlord. Landlord shall have the right at
all times during the Lease Term to publish and promulgate and thereafter enforce
such rules and regulations or changes in the existing Rules and Regulations as
it may reasonably deem necessary in its sole discretion to protect the
tenantability, safety, operation, and welfare of the Demised Premises, the
Project and Wildwood Office Park, so long as such modifications do not
materially, adversely impact upon Tenant's use of or access to the Demised
Premises. Rules and Regulations shall be enforced against similarly situated
tenants and Tenant in a non-discriminatory manner. Landlord acknowledges that
Tenant is a computer software company that requires that the employees have 24
hour access to the Demised Premises, that the Demised Premises must have after
hour air conditioning and heat at the then standard rate for the Project (as set
forth herein), and that the computers of Tenant require stable, sufficient,
continuous and high quality electrical and telephone service.
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14. Alterations. Except for any initial improvement of the Demised
Premises pursuant to Exhibit "D", which shall be governed by the provisions of
said Exhibit "D", Tenant shall not make, suffer or permit to be made any
alterations, additions or improvements to or of the Demised Premises or any part
thereof, or attach any fixtures or equipment thereto, without first obtaining
Landlord's written consent, which consent shall not be unreasonably withheld or
delayed; provided, however, that Tenant shall have the right, without obtaining
Landlord's consent, to install or move low voltage telephone lines and local
area network lines within and which serve the Demised Premises, so long as such
actions do not affect the service of any other tenant of the Building and do not
affect the Building Systems, and such work is done by an electrician (or other
professional, as appropriate, and which may be an employee of Tenant) consented
to by Landlord (with such consent as to the identity of such a person applying
to subsequent work of the same or similar type by such person), and Tenant shall
also be entitled to perform work within the Demised Premises, with notice to,
but not the consent of, Landlord as long as (i) the cost of such work does not
exceed, in the aggregate, $20,000.00; (b) such work does not adversely affect
the structural components of the Building or the Building's systems; (c) such
work is not visible from the exterior of the Demised Premises; (d) the terms and
conditions of this Lease are otherwise complied with; and (e) Tenant delivers to
Landlord, upon the completion of such work, complete, as-built plans and
specifications for the work performed, if available. Tenant may also hang white
boards, cork boards, pictures and other typical corporate wall adornments of
various sizes as is customary without Landlord's prior consent, and Tenant will
retain ownership and title to all such items at all times and shall not be
liable to remove or repair the effects of anchors and other devices used to hang
such items at Lease termination. Any such alterations, additions or improvements
to the Demised Premises consented to by Landlord shall be made by Landlord or
under Landlord's supervision for Tenant's account (at 10(cent) per square foot
of Rentable Floor Area affected by such work, if Tenant does the work, [which
Tenant may elect to do], and at 5% of the entire cost of the work, if Landlord
supervises and coordinates such work) and Tenant shall reimburse Landlord for
all costs thereof, as Rent, within thirty (30) days after receipt of a
statement. All such alterations, additions and improvements shall become
Landlord's property at the expiration or earlier termination of the Lease Term
and shall remain on the Demised Premises without compensation to Tenant unless
Landlord elects by notice to Tenant, at the time Landlord responds to Tenant as
to whether or not such alterations may be constructed in or made to the Demised
Premises, to have Tenant remove such alterations, additions and improvements, in
which event, notwithstanding any contrary provisions respecting such
alterations, additions and improvements contained in Article 32 hereof, Tenant
shall promptly restore, at its sole cost and expense, the Demised Premises to
its condition prior to the installation of such alterations, additions and
improvements, normal wear and tear excepted.
15. Repairs.
(a) Landlord shall maintain in good order and repair,
subject to normal wear and tear and subject to casualty and
condemnation, the Building (excluding the Demised Premises and other
portions of the Building leased to other tenants), and all plumbing,
glass, HVAC, wiring and telephone which is a part of the Building
systems (and not a part of any improvements built as part of any
tenant's fit-up and finish work), the Building parking facilities, the
public areas and the landscaped areas; provided, however, that the
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cost of maintaining such items shall be included as an Operating
Expense in accordance with and subject to Article 9 herein.
Notwithstanding the foregoing obligation, the cost of any repairs or
maintenance to the foregoing necessitated by the intentional acts or
negligence of Tenant or its agents, contractors, employees, invitees,
licensees, tenants or assigns, shall be borne solely by Tenant and
shall be deemed Rent hereunder and shall be reimbursed by Tenant to
Landlord upon demand. Landlord shall not be required to make any
repairs or improvements to the Demised Premises except structural
repairs and Building systems (as set forth above) necessary for safety
and tenantability. If Landlord must enter the Demised Premises to make
repairs for another tenant, then Landlord shall use all reasonable
efforts to cause such repairs to be made after Building Operating
Hours.
(b) Tenant covenants and agrees that it will take good
care of the Demised Premises and all alterations, additions and
improvements thereto and will keep and maintain the same in good
condition and repair, except for normal wear and tear and casualty.
Tenant shall have the right to have work required of Tenant in the
Demised Premises performed after hours; provided, however, that Tenant
shall bear all additional cost and expense associated or incurred in
connection with or as a part of such overtime work, and such work shall
be otherwise performed in accordance with Landlord's reasonable
limitations and guidelines. Tenant shall at once report, in writing, to
Landlord any defective or dangerous condition known to Tenant. To the
fullest extent permitted by law, Tenant hereby waives all rights to
make repairs at the expense of Landlord or in lieu thereof to vacate
the Demised Premises as may be provided by any law, statute or
ordinance now or hereafter in effect. Landlord has no obligation and
has made no promise to alter, remodel, improve, repair, decorate or
paint the Demised Premises or any part thereof, except as specifically
and expressly herein set forth.
(c) If Landlord fails to furnish or delays in furnishing
any service Landlord is obligated to provide under this Lease, Tenant
shall be entitled to abate Rent until the service is restored, but only
under the following terms and conditions:
(i) the loss of service was not caused by, through or
under Tenant;
(ii) the loss of service is the result of a cause within
Landlord's control;
(iii) the loss of service must be of a material nature so
as to render the Demised Premises reasonably unusable for the purposes
contemplated by this Lease;
(iv) Tenant must give written notice promptly to Landlord
of the loss of service and its claim for abatement under this provision
and, Tenant shall be entitled to abatement of Rent, assuming all other
conditions of this provision are satisfied, commencing on the day such
service is curtailed, provided that if such service is restored or
replaced within six (6) business days of Landlord's receipt of such
notice, then Tenant shall not be entitled to any such abatement; and
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(v) Landlord may prevent or stop abatement by providing
substantially the same service by temporary or alternative means until
the cause of the loss of service can be corrected.
(vi) If a service is not provided to a discrete or
separate portion of the Demised Premises (as opposed to the entire
Demised Premises) then the terms and conditions of the Article 15(c)
shall apply to such discrete or separate area, and not to the entire
Demised Premises.
16. Landlord's Right of Entry.
(a) Landlord shall retain duplicate keys to all doors of
the Demised Premises and Landlord and its agents, employees and
independent contractors shall have the right to enter the Demised
Premises at reasonable hours, upon reasonable advance oral or written
notice (which shall be no less than twenty-four (24) hours, except in
an emergency as described below), and at all times in a competent and
professional manner, to inspect and examine same, to make repairs,
additions, alterations, and improvements, so long as such entry does
not substantially interrupt Tenant's business, to exhibit the Demised
Premises to mortgagees, prospective mortgagees, purchasers or in the
last ten (10) months of the Term or if an event of default on the part
of Tenant has occurred and is continuing, tenants, and to inspect the
Demised Premises to ascertain that Tenant is complying with all of its
covenants and obligations hereunder, all without being liable to Tenant
in any manner whatsoever for any damages arising therefrom; provided,
however, that Landlord shall, except in case of emergency, afford
Tenant such prior notification of an entry into the Demised Premises as
shall be reasonably practicable under the circumstances, and in all
events (except in an emergency) on no less than twenty-four (24) hours
prior notice. Landlord shall only enter into contracts with companies
providing janitorial and security services for the Building which
require such parties to carry liability insurance and be bonded.
Landlord shall comply with any reasonable requests from Tenant related
to safeguarding Tenant's trade secrets in the Demised Premises;
provided, however, that Landlord's only liability with respect thereto
shall arise under Article 37 hereunder.
(b) Landlord shall be allowed to take into and through
the Demised Premises any and all materials that may be required to
make such repairs, additions, alterations or improvements. During such
time as such work is being carried on in or about the Demised Premises,
the Rent provided herein shall not abate, and Tenant waives any claim
or cause of action against Landlord for damages by reason of
interruption of Tenant's business or loss of profits therefrom because
of the prosecution of any such work or any part thereof. Landlord will
use its reasonable efforts to minimize such disruptions of Tenant's
business, including scheduling non-emergency work of a disruptive
nature after Building Operating Hours.
17. Insurance.
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(a) Tenant shall procure at its expense and maintain
throughout the Lease Term a policy or policies of special form/all-risk
insurance insuring the full replacement cost of its furniture,
equipment, supplies, and other property owned, leased, held or
possessed by it and contained in the Demised Premises, together with
the value of the improvements to the Demised Premises in excess of
Twenty and No/100 Dollars ($20.00) per square foot of Rentable Floor
Area, below a semi-finished ceiling, and worker's compensation
insurance as required by applicable law. Tenant shall also procure at
its expense and maintain throughout the Lease Term a policy or policies
of commercial general liability insurance, insuring Tenant, Landlord
and any other person designated by Landlord, against any and all
liability for injury to or death of a person or persons and for damage
to property occasioned by or arising out of any construction work being
done on the Demised Premises, or arising out of the condition, use, or
occupancy of the Demised Premises, or in any way occasioned by or
arising out of the activities of Tenant, its agents, contractors,
employees, guests, or licensees in the Demised Premises, or other
portions of the Building, the Project or Wildwood Office Park, the
limits of such policy or policies to be in combined single limits for
both damage to property and personal injury and in amounts not less
than Three Million Dollars ($3,000,000) for each occurrence. Such
insurance shall, in addition, extend to any liability of Tenant arising
out of the indemnities provided for in this Lease. Tenant shall also
carry such other types of insurance in form and amount which Landlord
shall reasonably deem to be prudent for Tenant to carry, should the
circumstances or conditions so merit Tenant carrying such type of
insurance, and if other owners of first-class buildings in the area of
the Building are generally requiring such coverage. All insurance
policies procured and maintained by Tenant pursuant to this Article 17
shall name Landlord and any additional parties designated by Landlord
as additional insured, shall be carried with companies licensed to do
business in the State of Georgia having a rating from Best's Insurance
Reports of not less than A-IX, and shall be non-cancelable and not
subject to material change except after thirty (30) days' written
notice to Landlord. Such policies or duly executed certificates of
insurance with respect thereto, accompanied by proof of payment of the
premium therefor, shall be delivered to Landlord prior to the Rental
Commencement Date, and renewals of such policies shall be delivered to
Landlord at least thirty (30) days prior to the expiration of each
respective policy term.
(b) Landlord shall procure and maintain at its expense
(but with the expense to be included in Operating Expenses) throughout
the Lease Term a policy or policies of special form/all-risk (including
rent loss coverage) real and personal property insurance covering the
Project (including the leasehold improvements in the Demised Premises
up to Twenty and No/100 Dollars ($20.00) per square foot of Rentable
Floor Area, below a semi-finished ceiling, but excluding Tenant's
personal property and equipment), in an amount equal to the full
insurable replacement cost thereof as such may increase from time to
time (but such insurance may provide for a commercially reasonable
deductible), and in an amount sufficient to comply with any
co-insurance requirements in such policy, and a policy of workers'
compensation insurance, if any, as required by applicable law. In
addition, Landlord shall procure and maintain at its expense (but with
the expense to be included in Operating Expenses) and shall thereafter
maintain throughout the Lease Term, a commercial general liability
insurance policy covering the Project with combined single
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limits for both damage to property and personal injury of not less than
Three Million Dollars ($3,000,000) per occurrence, subject to annual
aggregate limits of not less than Five Million Dollars ($5,000,000).
Landlord may also carry such other types of insurance in form and
amounts which Landlord shall determine to be appropriate from time to
time, and the cost thereof shall be included in Operating Expenses. All
such policies procured and maintained by Landlord pursuant to this
Article 17 shall be carried with companies licensed to do business in
the State of Georgia, and shall have a rating from Best's Insurance
Reports of not less than A-IX, (or, if not at such level, at such level
as Landlord elects, but the rating which Landlord elects, from time to
time, shall be the level of rating from Best's Insurance Reports which
Tenant must maintain under Article 17(a) above). Any insurance required
to be carried by Landlord hereunder may be carried under blanket
policies covering other properties of Landlord and/or its partners
and/or their respective related or affiliated corporations so long as
such blanket policies provide insurance at all times for the Project as
required by this Lease. In no event shall such coverages under blanket
policies cause an increase in Tenant's Additional Rental. At Tenant's
request, Landlord shall provide a copy of an insurance certificate to
Tenant, evidencing the coverage Landlord is required to maintain
hereunder.
18. Waiver of Subrogation. Landlord and Tenant shall each have
included in all policies of fire, extended coverage, business interruption and
loss of rents insurance respectively obtained by them covering the Demised
Premises, the Building and contents therein, a waiver by the insurer of all
right of subrogation against the other in connection with any loss or damage
thereby insured against. Any additional premium for such waiver shall be paid by
the primary insured. To the full extent permitted by law, Landlord and Tenant
each waives all right of recovery against the other for, and agrees to release
the other from liability for, loss or damage to the extent such loss or damage
is covered by valid and collectible insurance in effect at the time of such loss
or damage or would be covered by the insurance required to be maintained under
this Lease by the party seeking recovery.
19. Default.
(a) The following events shall be deemed to be events of
default by Tenant under this Lease: (i) Tenant shall fail to pay any
installment of Rent or any other charge or assessment against Tenant
pursuant to the terms hereof within five (5) days after the date notice
of such late payment is received by Tenant; provided, however, if more
than two (2) payments due of Tenant hereunder in any one (1) calendar
year are not made until after notice of such late payment is received
by Tenant, then it shall be an event of default hereunder by Tenant if
any subsequent payment due of Tenant hereunder in the same calendar
year is not made within ten (10) days of the date when due; (ii) Tenant
shall fail to comply with any term, provision, covenant or warranty
made under this Lease by Tenant, other than the payment of the Rent or
any other charge or assessment payable by Tenant, and shall not cure
such failure within fifteen (15) business days after notice thereof to
Tenant, or, if such matter cannot be cured within fifteen (15) business
days, if Tenant does not commence to cure such matter within fifteen
(15) business days and diligently pursue such cure to completion (and
in any event cure such matter within ninety (90) days after
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notice thereof); (iii) Tenant or any guarantor of this Lease shall make
a general assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts as they become due, or shall
file a petition in bankruptcy admitting its insolvency, or shall be
adjudicated as bankrupt or insolvent, or shall file a petition in any
proceeding seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any
present or future statute, law or regulation, or shall file an answer
admitting or fail timely to contest the material allegations of a
petition filed against it in any such proceeding; (iv) a proceeding is
commenced against Tenant or any guarantor of this Lease seeking any
reorganization, arrangement, composition, readjustment, liquidation,
dissolution or similar relief under any present or future statute, law
or regulation, and such proceeding shall not have been dismissed within
sixty (60) days after the commencement thereof; (v) a receiver or
trustee shall be appointed for the Demised Premises or for all or
substantially all of the assets of Tenant or of any guarantor of this
Lease; or (vi) Tenant shall do or permit to be done anything which
creates a lien upon the Demised Premises or the Project and such lien
is not removed or discharged within fifteen (15) days after the filing
thereof.
(b) Upon the occurrence of any of the aforesaid events of
default, Landlord shall have the option to pursue any one or more of
the following remedies without any notice or demand whatsoever, except
as expressly specified in Article 19(a) above: (i) terminate this
Lease, in which event Tenant shall immediately surrender the Demised
Premises to Landlord and if Tenant fails to do so, Landlord may without
prejudice to any other remedy which it may have for possession or
arrearages in Rent, enter upon and take possession of the Demised
Premises and expel or remove Tenant and any other person who may be
occupying said Demised Premises or any part thereof without being
liable for prosecution or any claim of damages therefor; Tenant hereby
agreeing to pay to Landlord on demand the amount of all loss and damage
which Landlord may suffer by reason of such termination, whether
through inability to relet the Demised Premises on satisfactory terms
or otherwise; (ii) terminate Tenant's right of possession (but not this
Lease) and enter upon and take possession of the Demised Premises and
expel or remove Tenant and any other person who may be occupying said
Demised Premises or any part thereof, by entry, dispossessory suit or
otherwise, without thereby releasing Tenant from any liability
hereunder, without terminating this Lease, and without being liable for
prosecution or any claim of damages therefor and, if Landlord so
elects, make such alterations, redecorations and repairs as, in
Landlord's reasonable judgment, may be necessary to relet the Demised
Premises, and Landlord may, but shall be under no obligation to do so,
relet the Demised Premises or any portion thereof in Landlord's or
Tenant's name, but for the account of Tenant, for such term or terms
(which may be for a term extending beyond the Lease Term) and at such
rental or rentals and upon such other terms as Landlord may deem
advisable, with or without advertisement, and by negotiations, and
receive the rent therefor, Tenant hereby agreeing to pay to Landlord
the deficiency, if any, between all Rent reserved hereunder and the
total rental applicable to the Lease Term hereof obtained by Landlord
re-letting, and Tenant shall be liable for Landlord's expenses in
redecorating and restoring the Demised Premises and all reasonable
costs incident to such re-letting, including broker's commissions and
lease assumptions, and in no event shall Tenant be entitled to any
rentals
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received by Landlord in excess of the amounts due by Tenant hereunder;
or (iii) enter upon the Demised Premises without being liable for
prosecution or any claim of damages therefor, and do whatever Tenant is
obligated to do under the terms of this Lease; and Tenant agrees to
reimburse Landlord on demand for any expenses including, without
limitation, reasonable attorneys' fees which Landlord may incur in thus
effecting compliance with Tenant's obligations under this Lease and
Tenant further agrees that Landlord shall not be liable for any damages
resulting to Tenant from such action, whether caused by negligence of
Landlord or otherwise. If this Lease is terminated by Landlord as a
result of the occurrence of an event of default, Landlord may declare
to be due and payable immediately, the present value (calculated with a
discount factor of eight percent [8%] per annum) of the difference
between (x) the entire amount of Rent and other charges and assessments
which in Landlord's reasonable determination would become due and
payable during the remainder of the Lease Term determined as though
this Lease had not been terminated (including, but not limited to,
increases in Rent pursuant to Article 7 hereof), and (y) the then fair
market rental value of the Demised Premises for the remainder of the
Lease Term. Upon the acceleration of such amounts, Tenant agrees to pay
the same at once, together with all Rent and other charges and
assessments theretofore due, at Landlord's address as provided herein,
it being agreed that such payment shall not constitute a penalty or
forfeiture but shall constitute liquidated damages for Tenant's failure
to comply with the terms and provisions of this Lease (Landlord and
Tenant agreeing that Landlord's actual damages in such event are
impossible to ascertain and that the amount set forth above is a
reasonable estimate thereof).
(c) Pursuit of any of the foregoing remedies shall not
preclude pursuit of any other remedy herein provided or any other
remedy provided by law or at equity, nor shall pursuit of any remedy
herein provided constitute an election of remedies thereby excluding
the later election of an alternate remedy, or a forfeiture or waiver of
any Rent or other charges and assessments payable by Tenant and due to
Landlord hereunder or of any damages accruing to Landlord by reason of
violation of any of the terms, covenants, warranties and provisions
herein contained. No reentry or taking possession of the Demised
Premises by Landlord or any other action taken by or on behalf of
Landlord shall be construed to be an acceptance of a surrender of this
Lease or an election by Landlord to terminate this Lease unless written
notice of such intention is given to Tenant. Forbearance by Landlord to
enforce one or more of the remedies herein provided upon an event of
default shall not be deemed or construed to constitute a waiver of such
default. In determining the amount of loss or damage which Landlord may
suffer by reason of termination of this Lease or the deficiency arising
by reason of any reletting of the Demised Premises by Landlord as above
provided, allowance shall be made for the expense of repossession.
Tenant agrees to pay to Landlord all costs and expenses incurred by
Landlord in the enforcement of this Lease, including, without
limitation, the fees of Landlord's attorneys as provided in Article 25
hereof.
20. Waiver of Breach. No waiver of any breach of the covenants,
warranties, agreements, provisions, or conditions contained in this Lease shall
be construed as a waiver of said covenant, warranty, provision, agreement or
condition or of any subsequent breach thereof, and if any
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breach shall occur and afterwards be compromised, settled or adjusted, this
Lease shall continue in full force and effect as if no breach had occurred.
21. Assignment and Subletting.
(a) Tenant shall not, without the prior written consent
of Landlord, such consent of Landlord not to be unreasonably withheld
or delayed, assign this Lease or any interest herein or in the Demised
Premises, or mortgage, pledge, encumber, hypothecate or otherwise
transfer or sublet the Demised Premises or any part thereof or permit
the use of the Demised Premises by any party other than Tenant. Consent
to one or more such transfers or subleases shall not destroy or waive
this provision, and all subsequent transfers and subleases shall
likewise be made only upon obtaining the prior written consent of
Landlord. Without limiting the foregoing prohibition, in no event shall
Tenant assign this Lease or any interest herein, whether directly,
indirectly or by operation of law, or sublet the Demised Premises or
any part thereof or permit the use of the Demised Premises or any part
thereof by any party (i) if the proposed assignee or subtenant is a
party who would (or whose use would) detract from the character of the
Building as a first-class building, such as, without limitation, a
dental, medical or chiropractic office or a governmental office, (ii)
if the proposed use of the Demised Premises shall involve an occupancy
rate of more than one (1) person per 150 square feet of Rentable Floor
Area within the Demised Premises, (iii) if the proposed assignment or
subletting shall be to a governmental subdivision or agency or any
person or entity who enjoys diplomatic or sovereign immunity (unless
Landlord is, at such time, leasing space in the Building to such
entity), or (iv) if such proposed assignment, subletting or use would
contravene any restrictive covenant (including any exclusive use)
granted to any other tenant of the Building. At Landlord's option,
sublessees or transferees of the Demised Premises for the balance of
the Lease Term shall become directly liable to Landlord for all
obligations of Tenant hereunder, without relieving Tenant (or any
guarantor of Tenant's obligations hereunder) of any liability therefor,
and Tenant shall remain obligated for all liability to Landlord arising
under this Lease during the entire remaining Lease Term including any
extensions thereof, whether or not authorized herein. If Tenant is a
partnership, a withdrawal or change, whether voluntary, involuntary or
by operation of law, of partners owning a controlling interest in the
Tenant shall be deemed a voluntary assignment of this Lease and subject
to the foregoing provisions, unless such involves a transaction in
which the successor or surviving entity, subject to and assuming this
Lease, has a net worth equal to or greater than the predecessor entity
and will be utilizing the Demised Premises for a purpose substantially
similar to the use of the predecessor, and in any event Tenant shall
provide notice to, but does not have to obtain the prior consent of
Landlord, concerning such transaction. If Tenant is a corporation
(including a limited liability company), any dissolution, merger,
consolidation or other reorganization of Tenant, or the sale or
transfer of a controlling interest in the capital stock of Tenant,
shall be deemed a voluntary assignment of this Lease and subject to the
foregoing provisions, unless such involves a transaction in which the
successor or surviving entity, subject to and assuming this Lease, has
a net worth equal to or greater than the predecessor entity had as of
the date of execution and delivery of this Lease by all parties hereto,
and will be utilizing the Demised Premises for a purpose substantially
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similar to the use of the predecessor, and in any event Tenant shall
provide notice to, but does not have to obtain the prior consent of
Landlord, concerning such transaction. Tenant may also have affiliated
entities conducting business within the Demised Premises with notice
to, but without the consent of Landlord, as long as there is no
physical separation of or distinct area for such other entities, and
such other parties otherwise comply with the terms of the Lease.
(b) Landlord may, as a prior condition to considering any
request for consent to an assignment or sublease, require Tenant to
obtain and submit current financial statements of any proposed
subtenant or assignee. If Landlord consents to an assignment or
sublease, Tenant shall pay to Landlord a fee to cover legal fees
actually incurred by Landlord as a result of the assignment or
sublease, such legal fees due from Tenant not to exceed $1,000.00 per
occurrence or request. Fifty percent (50%) of any consideration, in
excess of the Rent and other charges and sums due and payable by Tenant
under this Lease, paid to Tenant by any assignee of this Lease for its
assignment, or by any sublessee under or in connection with its
sublease, or otherwise paid to Tenant by another party for use and
occupancy of the Demised Premises or any portion thereof, shall be
promptly remitted by Tenant to Landlord as additional rent hereunder
and Tenant shall have no right or claim thereto as against Landlord;
provided, however, that Tenant shall be entitled to deduct from such
any reasonable expenses actually incurred by Tenant in procuring such a
sublease or assignment, including but not limited to (i) any
improvement allowance or other economic concession (planning allowance,
moving expenses, and the like) paid by Tenant to sublessee or assignee;
(ii) brokers' commissions; (iii) attorneys fees; (iv) lease takeover
payments; (v) costs of advertising the space for sublease or
assignment; and (vi) unamortized cost of initial improvements funded by
Tenant (calculated in accordance with the formula set forth in Exhibit
H). No assignment of this Lease consented to by Landlord shall be
effective unless and until Landlord shall receive an original
assignment and assumption agreement, in form and substance satisfactory
to Landlord, signed by Tenant and Tenant's proposed assignee, whereby
the assignee assumes due performance of this Lease to be done and
performed for the balance of the then remaining Lease Term of this
Lease. No subletting of the Demised Premises, or any part thereof,
shall be effective unless and until there shall have been delivered to
Landlord an agreement, in form and substance satisfactory to Landlord,
signed by Tenant and the proposed sublessee, whereby the sublessee
acknowledges the right of Landlord to continue or terminate any
sublease, in Landlord's sole discretion, upon termination of this
Lease, and such sublessee agrees to recognize and attorn to Landlord if
Landlord elects under such circumstances to continue such sublease.
22. Destruction.
(a) If the Demised Premises are damaged by fire or other
casualty, the same shall be repaired or rebuilt as speedily as
practical under the circumstances at the expense of the Landlord
(subject to subparagraph [c] below), unless this Lease is terminated as
provided in this Article 22, and during the period required for
restoration, a just and
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proportionate part of Base Rental and Tenant's Additional Rental shall
be abated until the Demised Premises are repaired or rebuilt.
(b) If the Demised Premises are (i) damaged to such an
extent that repairs cannot, in Landlord's reasonable judgment, be
completed within one (1) year after the date of the casualty or (ii)
damaged or destroyed as a result of a risk which is not insured under
standard special form/all-risk insurance policies, or (iii) damaged or
destroyed during the last eighteen (18) months of the Lease Term, or if
the Building is damaged in whole or in part (whether or not the Demised
Premises are damaged), to such an extent that the Building cannot, in
Landlord's reasonable judgment, be operated economically as an integral
unit, then and in any such event Landlord may at its option terminate
this Lease by notice in writing to the Tenant within sixty (60) days
after the date of such occurrence. If the Demised Premises are damaged
to such an extent that repairs cannot, in Landlord's judgment, be
completed within one (1) year after the date of the casualty, if the
Demised Premises are substantially damaged during the last eighteen
(18) months of the Lease Term, or if Landlord indicates to Tenant that
such repairs will be completed within one (1) year after the casualty,
but then fails to so complete such repairs within said one (1) year
period, then in any of such events, Tenant may elect to terminate this
Lease by notice in writing to Landlord within fifteen (15) days after
the date of such occurrence. Unless Landlord or Tenant elects to
terminate this Lease as hereinabove provided, this Lease will remain in
full force and effect and Landlord shall repair such damage at its
expense to the extent required in this Article as expeditiously as
possible under the circumstances.
(c) If Landlord should elect or be obligated pursuant to
subparagraph (a) above to repair or rebuild because of any damage or
destruction, Landlord's obligation shall be limited to the original
Building and any other work or improvements in the Demised Premises (to
the extent such leasehold improvements can be restored for the amount
of the Construction Allowance applicable thereto) and shall not extend
to any furniture, equipment, supplies or other personal property owned
or leased by Tenant, its employees, contractors, invitees or licensees.
If the cost of performing such repairs and restoration exceeds the
actual proceeds of insurance paid or payable to Landlord on account of
such casualty, or if Landlord's mortgagee or the lessor under a ground
or underlying lease shall require that any insurance proceeds from a
casualty loss be paid to it, Landlord may terminate this Lease unless
Tenant, within thirty (30) days after demand therefor, deposits with
Landlord a sum of money sufficient to pay the difference between the
cost of repair and the proceeds of the insurance available to Landlord
for such purpose.
(d) In no event shall Landlord be liable for any loss or
damage sustained by Tenant by reason of casualties mentioned
hereinabove or any other accidental casualty.
23. Landlord's Lien. Intentionally Deleted.
24. Services by Landlord. Landlord shall provide the Building
Standard Services described on Exhibit "E" attached hereto and by reference made
a part hereof.
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25. Attorneys' Fees and Homestead. If any Rent or other debt owing
by Tenant to Landlord hereunder that is late is collected by or through an
attorney-at-law, Tenant agrees to pay an additional amount equal to Landlord's
reasonable attorney's fees actually incurred in connection with such action. If
Landlord or Tenant uses the services of any attorney in order to secure
compliance with any other provisions of this Lease, to recover damages for any
breach or default of any other provisions of this Lease, or to terminate this
Lease, the non-prevailing party in any such matter shall reimburse the other
party hereto upon demand for any and all attorney's fees and expenses so
incurred by the prevailing party. Tenant waives all homestead rights and
exemptions which it may have under any law as against any obligation owing under
this Lease, and assigns to Landlord its homestead and exemptions to the extent
necessary to secure payment and performance of its covenants and agreements
hereunder.
26. Time. Time is of the essence of this Lease and whenever a
certain day is stated for payment or performance of any obligation of Tenant or
Landlord, the same enters into and becomes a part of the consideration hereof.
27. Subordination and Attornment.
(a) Tenant agrees that this Lease and all rights of
Tenant hereunder are and shall be subject and subordinate to any ground
or underlying lease which may hereafter be in effect regarding the
Project or any component thereof, to any mortgage now or hereafter
encumbering the Demised Premises or the Project or any component
thereof, to all advances made or hereafter to be made upon the security
of such mortgage, to all amendments, modifications, renewals,
consolidations, extensions, and restatements of such mortgage, and to
any replacements and substitutions for such mortgage, so long as, a
part of such subordination, the party receiving the benefit of such
agrees to provide a non-disturbance agreement for Tenant, which
instrument shall be delivered within six (6) months after the mortgage
is first put on public record in the records of Cobb County, Georgia.
Landlord represents and warrants to Tenant that, as of the date of this
Lease, there is no underlying land lease affecting the Lease or
encumbering the Property or Building, and the only deeds to secure
debt, mortgages, or other first priority security title or security
interest encumbering its estate in the Property is one in favor of The
Metropolitan Life Insurance Company ("Mortgagee"). Landlord shall use
all reasonable efforts to deliver to Tenant, as soon as possible after
the execution and delivery of this Lease by Landlord and Tenant, a
fully executed subordination, non-disturbance and attornment agreement
from Mortgagee, in the form attached hereto as Exhibit "J", by this
reference incorporated herein and in any event will deliver such to
Tenant within six (6) months after this Lease is duly executed and
delivered by all parties hereto. The terms of this provision shall be
self-operative and no further instrument of subordination shall be
required. Tenant, however, upon request of any party in interest, shall
execute promptly such instrument or certificates as may be reasonably
required to carry out the intent hereof, whether said requirement is
that of Landlord or any other party in interest, including, without
limitation, any mortgagee. Landlord is hereby irrevocably vested with
full power and authority as attorney-in-fact for Tenant and in
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Tenant's name, place and stead, to subordinate Tenant's interest under
this Lease to the lien or security title of any mortgage and to any
future instrument amending, modifying, renewing, consolidating,
extending, restating, replacing or substituting any such mortgage.
(b) If any mortgagee or lessee under a ground or
underlying lease elects to have this Lease superior to its mortgage or
lease and signifies its election in the instrument creating its lien or
lease or by separate recorded instrument, then this Lease shall be
superior to such mortgage or lease, as the case may be. The term
"mortgage", as used in this Lease, includes any deed to secure debt,
deed of trust or security deed and any other instrument creating a lien
in connection with any other method of financing or refinancing. The
term "mortgagee", as used in this Lease, refers to the holder(s) of the
indebtedness secured by a mortgage.
(c) In the event any proceedings are brought for the
foreclosure of, or in the event of exercise of the power of sale under,
any mortgage covering the Demised Premises or the Project, or in the
event the interests of Landlord under this Lease shall be transferred
by reason of deed in lieu of foreclosure or other legal proceedings, or
in the event of termination of any lease under which Landlord may hold
title, Tenant shall, at the option of the transferee or purchaser at
foreclosure or under power of sale, or the lessor of the Landlord upon
such lease termination, as the case may be (sometimes hereinafter
called "such person"), attorn to such person and shall recognize and be
bound and obligated hereunder to such person as the Landlord under this
Lease; provided, however, that no such person shall be (i) bound by any
payment of Rent for more than one (1) month in advance, except
prepayments in the nature of security for the performance by Tenant of
its obligations under this Lease (and then only if such prepayments
have been deposited with and are under the control of such person);
(ii) bound by any amendment or modification of this Lease made without
the express written consent of the mortgagee or lessor of the Landlord,
as the case may be; (iii) obligated to cure any defaults under this
Lease of any prior landlord (including Landlord); (iv) liable for any
act or omission of any prior landlord (including Landlord); (v) subject
to any offsets or defenses which Tenant might have against any prior
landlord (including Landlord); or (vi) bound by any warranty or
representation of any prior landlord (including Landlord) relating to
work performed by any prior landlord (including Landlord) under this
Lease. Tenant agrees to execute any attornment agreement not in
conflict herewith requested by Landlord, the mortgagee or such person.
Tenant's obligation to attorn to such person shall survive the exercise
of any such power of sale, foreclosure or other proceeding. Tenant
agrees that the institution of any suit, action or other proceeding by
any mortgagee to realize on Landlord's interest in the Demised Premises
or the Building pursuant to the powers granted to a mortgagee under its
mortgage, shall not, by operation of law or otherwise, result in the
cancellation or termination of the obligations of the Tenant hereunder.
Landlord and Tenant agree that notwithstanding that this Lease is
expressly subject and subordinate to any mortgages, any mortgagee, its
successors and assigns, or other
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holder of a mortgage or of a note secured thereby, may sell the Demised
Premises or the Building, in the manner provided in the mortgage and
may, at the option of such mortgagee, its successors and assigns, or
other holder of the mortgage or note secured thereby, make such sale of
the Demised Premises or Building subject to this Lease.
28. Estoppel Certificates. Within ten (10) days after request
therefor by Landlord, Tenant agrees to execute and deliver to Landlord in
recordable form an estoppel certificate addressed to Landlord, any mortgagee or
assignee of Landlord's interest in, or purchaser of, the Demised Premises or the
Building or any part thereof, certifying (if such be the case) that this Lease
is unmodified and is in full force and effect (and if there have been
modifications, that the same is in full force and effect as modified and stating
said modifications); that there are no defenses or offsets against the
enforcement thereof or stating those claimed by Tenant; and stating the date to
which Rent and other charges have been paid. Such certificate shall also include
such other information as may reasonably be required by such mortgagee, proposed
mortgagee, assignee, purchaser or Landlord. Any such certificate may be relied
upon by Landlord, any mortgagee, proposed mortgagee, assignee, purchaser and any
other party to whom such certificate is addressed. If Tenant fails to timely
execute, acknowledge and deliver such certificates within ten (10) days after
Landlord's request, then Landlord may provide another notice to Tenant,
requesting the estoppel certificate and indicating that Tenant has failed to
previously respond. If Tenant fails to provide the estoppel certificate within
ten (10) days after this second notice, then the information set forth in such
certificate so given by Landlord shall be deemed true and correct, and Tenant
shall have waived any rights to claim or state otherwise or to the contrary.
29. No Estate. This Lease shall create the relationship of
landlord and tenant only between Landlord and Tenant and no estate shall pass
out of Landlord. Tenant shall have only an usufruct, not subject to levy and
sale and not assignable in whole or in part by Tenant except as herein provided.
30. Cumulative Rights. All rights, powers and privileges conferred
hereunder upon the parties hereto shall be cumulative to, but not restrictive
of, or in lieu of those conferred by law.
31. Holding Over.
(a) If Tenant remains in possession after expiration or
termination of the Lease Term with or without Landlord's written consent, Tenant
shall become a tenant-at-sufferance, and there shall be no renewal of this Lease
by operation of law. During the period of any such holding over, all provisions
of this Lease shall be and remain in effect except that the monthly rental shall
be one hundred fifty percent (150%) of the amount of Rent (including any
adjustments as provided herein) payable for the last full calendar month of the
Lease Term including renewals or extensions, for the first three (3) months of
the holdover, and then double the amount of Rent due in the last full calendar
month of the Lease Term, thereafter. The inclusion of the preceding sentence in
this Lease shall not be construed as Landlord's consent for Tenant to hold over.
(b) Tenant shall have the right, by giving notice to Landlord at
least eighteen (18) months prior notice, to hold over in the Demised Premises
after the expiration of the Lease Term for a period of between two (2) and six
(6) months, at a Base Rental rate per annum established under Article 6 herein,
but not to exceed $18.683 per square foot of Rentable Floor Area, per
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annum, for such period, and with Tenant's Additional Rental due in accordance
with the terms of this Lease. Tenant shall provide, in such notice, the exact
number of months which Tenant desires to remain in the Demised Premises under
the terms of this Article 31(b) and, upon the giving of such notice, Tenant
shall have irrevocably agreed to lease the Demised Premises for the period
specified in the notice.
32. Surrender of Premises. (a) Upon the expiration or other
termination of this Lease, Tenant shall quit and surrender to Landlord the
Demised Premises and every part thereof and all alterations, additions and
improvements thereto, broom clean and in good condition and state of repair,
reasonable wear and tear only excepted. If Tenant shall fail or refuse to remove
all of Tenant's effects, personalty and equipment from the Demised Premises upon
the expiration or termination of this Lease for any cause whatsoever or upon the
Tenant being dispossessed by process of law or otherwise, such effects,
personalty and equipment shall be deemed conclusively to be abandoned and may be
appropriated, sold, stored, destroyed or otherwise disposed of by Landlord
without written notice to Tenant or any other party and without obligation to
account for them. Tenant shall pay Landlord on demand any and all expenses
incurred by Landlord in the removal of such property, including, without
limitation, the cost of repairing any damage to the Building or Project caused
by the removal of such property and storage charges (if Landlord elects to store
such property). The covenants and conditions of this Article 32 shall survive
any expiration or termination of this Lease. Landlord acknowledges that nothing
built into or a part of the Demised Premises as of the date this Lease is duly
executed and delivered must be removed by Tenant at the end of the Lease Term.
(b) Tenant at all times will retain the right to relocate or
remove any and all floor mounted HVAC units and UPS systems in the Demised
Premises. Tenant's sole obligation upon removal of such systems will be to
restore and repair all Building and Tenant flooring systems, walls and
appropriate wall coverings or paint as necessary to return the area effected by
the removal to an aesthetic level matching its surroundings, including the
repair of any holes or penetrations in the walls or floor.
33. Notices. All notices required or permitted to be given
hereunder shall be in writing and may be delivered in person to either party or
may be sent by courier (including a recognized overnight courier service) or by
United States Mail, certified, return receipt requested, postage prepaid. Any
such notice shall be deemed received by the party to whom it was sent (i) in the
case of personal delivery or courier delivery, on the date of delivery to such
party, and (ii) in the case of certified mail, the date receipt is acknowledged
on the return receipt for such notice or, if delivery is rejected or refused or
the U.S. Postal Service is unable to deliver same because of changed address of
which no notice was given pursuant hereto, the first date of such rejection,
refusal or inability to deliver. All such notices shall be addressed to Landlord
or Tenant at their respective address set forth hereinabove or at such other
address as either party shall have theretofore given to the other by notice as
herein provided. Tenant hereby designates and appoints as its agent to receive
notice of all distraint proceedings and all other notices required under this
Lease, the person in charge of the Demised Premises at the time said notice is
given or occupying said Demised Premises at said time; and, if no person is in
charge of or occupying the said Demised Premises, then such service or
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notice may be made by attaching the same, in lieu of mailing, on the main
entrance to the Demised Premises.
34. Damage or Theft of Personal Property. All personal property
brought into Demised Premises by Tenant, or Tenant's employees or business
visitors, shall be at the risk of Tenant only, and Landlord shall not be liable
for theft thereof or any damage thereto occasioned by any act of co-tenants,
occupants, invitees or other users of the Building or any other person, unless
arising out of Landlord's gross negligence or willful misconduct. Landlord shall
not at any time be liable for damage to any property in or upon the Demised
Premises, which results from power surges or other deviations from the constancy
of electrical service or from gas, smoke, water, rain, ice or snow which issues
or leaks from or forms upon any part of the Building or from the pipes or
plumbing work of the same, or from any other place whatsoever, unless arising
out of Landlord's gross negligence or willful misconduct.
35. Eminent Domain.
(a) If all or part of the Demised Premises shall be taken
for any public or quasi-public use by virtue of the exercise of the
power of eminent domain or by purchase in lieu thereof, this Lease
shall terminate as to the part so taken as of the date of taking, and,
in the case of a partial taking, either Landlord or Tenant shall have
the right to terminate this Lease as to the balance of the Demised
Premises by written notice to the other within thirty (30) days after
such date; provided, however, that a condition to the exercise by
Tenant of such right to terminate shall be that the portion of the
Demised Premises taken shall be of such extent and nature as
substantially to handicap, impede or impair Tenant's use of the balance
of the Demised Premises. If title to so much of the Building is taken
that a reasonable amount of reconstruction thereof will not in
Landlord's sole discretion result in the Building being a practical
improvement and reasonably suitable for use for the purpose for which
it is designed, then this Lease shall terminate on the date that the
condemning authority actually takes possession of the part so condemned
or purchased.
(b) If this Lease is terminated under the provisions of
this Article 35, Rent shall be apportioned and adjusted as of the date
of termination. Tenant shall have no claim against Landlord or against
the condemning authority for the value of any leasehold estate or for
the value of the unexpired Lease Term provided that the foregoing shall
not preclude any claim that Tenant may have against the condemning
authority for the unamortized cost of leasehold improvements, to the
extent the same were installed at Tenant's expense (and not with the
proceeds of the Construction Allowance), or for loss of business,
moving expenses or other consequential damages, in accordance with
subparagraph (d) below.
(c) If there is a partial taking of the Building and this
Lease is not thereupon terminated under the provisions of this Article
35, then this Lease shall remain in full force and effect, and Landlord
shall, within a reasonable time thereafter, repair or reconstruct the
remaining portion of the Building to the extent necessary to make the
same a complete architectural unit; provided that in complying with its
obligations hereunder Landlord shall
29
<PAGE> 35
not be required to expend more than the net proceeds of the
condemnation award which are paid to Landlord.
(d) All compensation awarded or paid to Landlord upon a
total or partial taking of the Demised Premises or the Building shall
belong to and be the property of Landlord without any participation by
Tenant. Nothing herein shall be construed to preclude Tenant from
prosecuting any claim directly against the condemning authority for
loss of business, for damage to, and cost of removal of, trade
fixtures, furniture and other personal property belonging to Tenant,
and for the unamortized cost of leasehold improvements to the extent
same were installed at Tenant's expense (and not with the `proceeds of
the Construction Allowance), provided, however, that no such claim
shall diminish or adversely affect Landlord's award. In no event shall
Tenant have or assert a claim for the value of any unexpired term of
this Lease. Subject to the foregoing provisions of this subparagraph
(d), Tenant hereby assigns to Landlord any and all of its right, title
and interest in or to any compensation awarded or paid as a result of
any such taking.
(e) Notwithstanding anything to the contrary contained in
this Article 35, if, during the Lease Term, the use or occupancy of any
part of the Building or the Demised Premises shall be taken or
appropriated temporarily for any public or quasi-public use under any
governmental law, ordinance, or regulations, or by right of eminent
domain, this Lease shall be and remain unaffected by such taking or
appropriation and Tenant shall continue to pay in full all Rent payable
hereunder by Tenant during the Lease Term. In the event of any such
temporary appropriation or taking, Tenant shall be entitled to receive
that portion of any award which represents compensation for the loss of
use or occupancy of the Demised Premises during the Lease Term, and
Landlord shall be entitled to receive that portion of any award which
represents the cost of restoration and compensation for the loss of use
or occupancy of the Demised Premises after the end of the Lease Term.
36. Parties. The term "Landlord", as used in this Lease, shall
include Landlord and its assigns and successors. It is hereby covenanted and
agreed by Tenant that should Landlord's interest in the Demised Premises cease
to exist for any reason during the Lease Term, then notwithstanding the
happening of such event, this Lease nevertheless shall remain in full force and
effect, and Tenant hereby agrees to attorn to the then owner of the Demised
Premises. The term "Tenant" shall include Tenant and its heirs, legal
representatives and successors, and shall also include Tenant's assignees and
sublessees, if this Lease shall be validly assigned or the Demised Premises
sublet for the balance of the Lease Term or any renewals or extensions thereof.
In addition, Landlord and Tenant covenant and agree that Landlord's right to
transfer or assign Landlord's interest in and to the Demised Premises, or any
part or parts thereof, shall be unrestricted, and that in the event of any such
transfer or assignment by Landlord which includ |
