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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For Quarterly Period Ended Commission File Number:
February 28, 1998 0-23021
EDUTREK INTERNATIONAL, INC.
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(Exact name of registrant as specified in its charter)
Georgia 58-2255472
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
3340 Peachtree Road, Suite 2000, Atlanta, Georgia 30326
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(Address of principal executive offices) (Zip Code)
404-812-8200
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(Registrant's telephone number, including area code)
Not applicable
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(Former name, former address and former fiscal year, if changed since last
report)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes X No
---- ----
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date:
Class A Common Stock, without par value per share 4,336,931 shares
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Class Outstanding at March 31, 1998
Class B Common Stock, without par value per share 6,293,000 shares
- ------------------------------------------------- -------------------------
Class Outstanding at March 31, 1998
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EduTrek International, Inc.
Form 10-Q Index
<TABLE>
<CAPTION>
PAGE
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<S> <C>
PART I - FINANCIAL INFORMATION
Item 1. Financial Statements ....................................................................... 1
Item 2. Management's Discussion and Analysis of Financial Condition and Results of Operations ...... 7
PART II. - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K ........................................................... 14
</TABLE>
<PAGE>
PART 1 - FINANCIAL INFORMATION
Item 1. Financial Statements
EduTrek International, Inc.
Consolidated Balance Sheet
(In thousands, except share amounts)
<TABLE>
<CAPTION>
February 28, May 31,
1998 1997
------------ --------
(Unaudited)
<S> <C> <C>
ASSETS
Current assets
Cash and cash equivalents .................................................... $ 7,378 $ 678
Accounts receivable -- net of allowance for doubtful accounts of
$286 and $33, respectively ................................................. 2,922 272
Other ........................................................................ 1,053 375
------- -------
Total current assets ........................................................... 11,353 1,325
Property, plant, and equipment -- net .......................................... 5,765 4,737
Goodwill -- net of accumulated amortization of $1,452 and $696, respectively ... 38,855 39,611
Deferred financing cost -- net of accumulated amortization of $165 ............. -- 1,156
Other .......................................................................... 1,826 842
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$57,799 $47,671
------- -------
------- -------
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities
Accounts payable ............................................................. $ 1,858 $ 1,501
Accrued expenses ............................................................. 1,105 1,167
Value-added tax payable ...................................................... 274 606
Unearned revenues ............................................................ 7,603 3,997
Income taxes payable ......................................................... 1,075 1,756
Notes payable ................................................................ 407 --
Current maturities -- long-term debt ......................................... 489 2,014
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Total current liabilities ...................................................... 12,811 11,041
Long-term debt -- less current maturities ...................................... 1,717 27,649
Due to affiliates .............................................................. -- 412
Other liabilities .............................................................. 794 692
Commitments and contingencies
SHAREHOLDERS' EQUITY
Common stock, Class A voting, one vote per share, without par value, 40,000,000 36,565 1,287
shares authorized, 4,319,041 and 665,000, issued and outstanding, respectively
Common stock, Class B voting, ten votes per share, without par value, 10,000,000 3,973 4,000
shares authorized, 6,293,000 issued and outstanding
Common stock warrants .......................................................... -- 677
Foreign currency translation ................................................... 122 147
Retained earnings .............................................................. 1,817 1,766
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Total shareholders' equity ..................................................... 42,477 7,877
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$57,799 $47,671
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</TABLE>
See notes to consolidated financial statements.
1
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EduTrek International, Inc.
Consolidated Statements of Operations
(In thousands, except per share amounts)
<TABLE>
<CAPTION>
Three Months Ended February 28, Nine Months Ended February 28,
------------------------------- ------------------------------
1997 1997
1998 1997 Pro Forma (3) 1998 1997 (2) Pro Forma (3)
---- ---- ------------- ---- -------- -------------
(Unaudited) (Unaudited) (Unaudited) (Unaudited) (Unaudited) (Unaudited)
<S> <C> <C> <C> <C> <C> <C>
Net revenues ..................................... $ 12,701 $ 8,803 $ 8,803 $ 28,241 $ 14,173 $ 20,363
Costs and expenses:
Cost of education and facilities ............... 4,647 3,217 3,217 11,553 5,321 8,533
Selling and promotional expenses ............... 1,801 868 868 4,407 1,384 2,966
General and administrative expenses ............ 2,886 1,961 2,253 8,191 3,492 5,579
Amortization of goodwill ....................... 252 253 253 756 422 765
------- ------ ------- ------- ------- ------
Total costs and expenses ....................... 9,586 6,299 6,591 24,907 10,619 17,843
------- ------ ------- ------- ------- ------
Income from campus operations .................... 3,115 2,504 2,212 3,334 3,554 2,520
Income from management agreement ................. -- 194 194 23 244 224
------- ------ ------- ------- ------- ------
Income from operations ........................... 3,115 2,698 2,406 3,357 3,798 2,744
Interest expense ................................. 65 991 50 1,275 1,451 1,289
Other income -- net .............................. 81 21 99 137 23 216
------- ------ ------- ------- ------- ------
Income before income taxes and extraordinary item 3,131 1,728 2,455 2,219 2,370 1,671
Provision for income taxes ....................... (1,353) (793) (1,084) (1,189) (1,273) (975)
------- ------ ------- ------- ------- ------
Income before extraordinary item ................. 1,778 935 $ 1,371 1,030 1,097 $ 696
-------- ---------
-------- ---------
Extraordinary loss less applicable income taxes .. -- -- (960) --
------- ------ ------- -------
Net income ....................................... $ 1,778 $ 935 $ 70 $ 1,097
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-------- -------- -------- --------
Basic income per share before extraordinary item.. $ 0.17 $ 0.13 $ 0.11 $ 0.08
Basic net income per share ....................... $ 0.17 $ 0.01
Diluted income per share before extraordinary item $ 0.16 $ 0.12 $ 0.10 $ 0.07
Diluted net income ............................... $ 0.16 $ 0.01
Average shares outstanding ....................... 10,608 10,608 9,161 9,161
Dilutive effect of stock options ................. 456 456 750 750
-------- -------- ------- -------
Average shares outstanding assuming dilution ..... 11,064 11,064 9,911 9,911
</TABLE>
See notes to consolidated financial statements.
2
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EduTrek International, Inc.
Consolidated Statements of Cash Flows
(In thousands)
<TABLE>
<CAPTION>
Nine Months Ended February 28,
------------------------------
1998 1997
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(Unaudited) (Unaudited)
<S> <C> <C>
OPERATING ACTIVITIES
Net income .......................................................... $ 70 $ 1,097
Adjustments to reconcile net income to net cash provided by (used in)
operating activities:
Extraordinary loss before applicable income taxes ................. 1,600 --
Depreciation and amortization ..................................... 1,847 692
Amortization of loan discount ..................................... 22 94
Decrease (increase) in accounts receivable ........................ (2,650) 887
Increase in accounts payable and accrued liabilities .............. 295 465
Increase (decrease) in unearned revenues .......................... 3,606 (4,617)
Decrease in value-added taxes payable ............................. (332) (668)
Increase (decrease) in income taxes payable ....................... (681) 737
Other ............................................................. (1,726) 183
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Net cash provided by (used in) operating activities ............... 2,051 (1,130)
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INVESTING ACTIVITIES
Acquisition of Predecessor ........................................ -- (30,746)
Purchases of property, plant, and equipment ....................... (2,005) (255)
Other ............................................................. (346) --
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Net cash used in investing activities ............................. (2,351) (31,001)
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FINANCING ACTIVITIES
Net receipts (payments) -- line-of-credit and other ............... (3,003) 1,093
Net additions (payments) under capital lease obligations .......... 73 (502)
Net long-term debt (payments) proceeds ............................ (24,587) 27,576
Proceeds from issuance of common stock ............................ 34,580 4,000
Other ............................................................. (38) --
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Net cash provided by financing activities ......................... 7,025 32,167
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Effect of exchange rate changes on cash ........................... (25) (6)
------- -------
NET INCREASE IN CASH AND CASH EQUIVALENTS ........................... 6,700 30
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD ...................... 678 154
CASH AND CASH EQUIVALENTS, END OF PERIOD ............................ $ 7,378 $ 184
SUPPLEMENTAL DISCLOSURES OF CASH FLOW INFORMATION:
Cash paid during the period for:
Interest .......................................................... $ 1,495 $ 354
Income taxes ...................................................... 1,212 --
</TABLE>
See notes to consolidated financial statements.
3
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EduTrek International, Inc.
Notes to Consolidated Financial Statements
(Unaudited)
Note 1 - Basis of Presentation
The accompanying unaudited consolidated financial statements have been prepared
in accordance with generally accepted accounting principles for interim
financial information and with the instructions to Form 10-Q and Article 10 of
Regulation S-X. Accordingly, they do not include all of the information and
disclosures required by generally accepted accounting principles for complete
financial statements. These unaudited financial statements include all
adjustments, consisting of only normal, recurring accruals, which EduTrek
International, Inc. (the "Company") considers necessary for a fair presentation
of the financial position and the results of operations for these periods.
The results of operations for three and nine months ended February 28, 1998 are
not necessarily indicative of the results to be expected for the full year
ending May 31, 1998. For further information, refer to the financial statements
and notes thereto for the fiscal year ended May 31, 1997 included in the
Company's Registration Statement on Form S-1, as amended, and related prospectus
as filed with the Securities and Exchange Commission.
The Company effected a 7 for 1 stock split in June 1997. All share and per share
information in the accompanying unaudited consolidated financial statements have
been restated to reflect the stock split as if such had occurred as of the
earliest period presented.
Note 2 - Acquisition
The Company, formerly known as E Holdings, Inc., was organized by Mr. Steve
Bostic, the Company's current Chairman and Chief Executive Officer, on July 1,
1996 for the purpose of acquiring all of the capital stock of EduTrek Systems,
Inc. ("EduTrek Systems") (a company also controlled by Mr. Bostic), American
Intercontinental University, Inc. ("AIU, Inc."), formerly known as American
European Corporation, and American College in London, Ltd. U.S., as well as 85%
of the membership interests of American European Middle East Corporation, L.L.C.
("AEMEC" which, together with AIU, Inc. and American College in London, Ltd.,
U.S. are collectively referred to herein as the "Predecessor"). On October 8,
1996, the Company acquired the capital stock and membership interests of the
Predecessor which, prior to its acquisition, operated The American College, now
known as American Intercontinental University ("AIU"). The purchase price for
the acquisition of the Predecessor was approximately $38.0 million. Also on
October 8, 1996, the Company acquired all of the issued and outstanding capital
stock of EduTrek Systems for an aggregate of 105,000 shares of Class A Common
Stock and 1,995,000 shares of Class B Common Stock.
The Company did not acquire the Predecessor until October 8, 1996. Accordingly,
the financial statements of the Company for the period from July 1, 1996 through
October 7, 1996 do not include the Predecessor. EduTrek Systems is included in
the financial statements of the Company from July 1, 1996, the date of the
Company's formation, in a manner similar to a pooling of interests.
Note 3 - Basis for Pro Forma Presentation
The pro forma presentation in the accompanying unaudited financial statements
assumes that the Company was formed on June 1, 1996 and gives effect to the
acquisitions of the Predecessor and EduTrek Systems as if such acquisitions had
occurred on June 1, 1996 and that cash proceeds from the September 23, 1997
initial public offering (the "Offering") were received on September 29, 1996 and
were used to retire applicable debt.
4
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The pro forma adjustments for the three months ended detailed below reflect (i)
adjustments for identifiable actual costs which would have been incurred by the
Company to replace certain of the eliminated costs resulting from the ownership
change, (ii) elimination of interest expense which would not have occurred due
to the use of Offering proceeds, and (iii) the addition of other income-net
related to the investment of net Offering proceeds.
General and administrative expenses were adjusted by the addition of
Company expenses of $292,000 for staff, office space, and the cost of being
a public company.
Interest expense was adjusted by the elimination of $941,000 relating to
the retirement of debt from the use of Offering proceeds.
Other income-net was adjusted by the addition of interest income of $78,000
relating to the investment of net Offering proceeds after retirement of
applicable debt.
Provision for income taxes was adjusted by $291,000 to give effect to the
pro forma adjustments.
Pro forma average shares outstanding, assuming dilution, of 11,089,000
include 4,796,000 of Class A Common Stock and 6,293,000 shares of Class B
Common Stock issued and outstanding at the end of the third quarter
adjusted for all outstanding warrants and options with respect to Class A
Common Stock. The number of shares outstanding from the assumed exercise of
all warrants and stock options is measured under the treasury stock method.
Note 4 - Significant Accounting Policies
Other Assets -- The Company has approximately $313,000 of pre-opening costs
included in Other Assets at February 28, 1998. The Company's policy is to
capitalize all pre-opening costs except those costs related to advertising
prior to the commencement of a new educational program. Pre-opening costs are
amortized over twelve months upon commencement of the new program.
Statement of Position 98-5, "Reporting on the Costs of Start-up Activities,"
(SOP 98-5) will require the Company to expense all pre-opening costs as incurred
and to write off any pre-opening costs included on the balance sheet beginning
in June 1999 (SOP 98-5 takes effect for fiscal years beginning after December
15, 1998).
Note 5 - New Accounting Pronouncements
In the current quarter ending February 28, 1998, the Company adopted SFAS 128
"Earnings Per Share." In accordance with SFAS 128, the Company has presented
both basic net income per share and diluted net income per share in all
statements of operations presented.
Note 6 - Consolidation
Effective September 1, 1997, AEMEC entered into an agreement with Middle East
Colleges, Ltd. ("MEC") to modify certain aspects of their joint venture
agreement relating to the operation of The American College in Dubai ("Dubai").
These modifications give effective control of the joint venture to AEMEC as
defined in Statement of Financial Accounting Standards ("SFAS") 94 and require
consolidation of the financial statements of Dubai with those of the Company as
of September 1, 1997. Prior to this date, AEMEC's portion of the net income from
Dubai had been reported in the income statement of the Company as "income from
management agreement." The result of these modifications and related
consolidation is not expected to change AEMEC's income related to Dubai.
5
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Note 7 - Subsequent Events
On February 16, 1998, the Company entered into a 138-month lease for a 75,711
square foot building in the North Atlanta area for its North Atlanta Campus.
The Company is to begin its occupancy in July 1998 and will incur rent
payments of approximately $1.0 million for fiscal year 1999 and approximately
$2.0 million each fiscal year thereafter.
On March 31, 1998, the Company and ITI Education Corporation (ITI) announced
that their planned combination was terminated in favor of amended and expanded
licensing arrangements under which the Company acquired rights to ITI's
information technology education system. The expanded licensing arrangements
include 11 major market areas in the United States and internationally. The
Company and ITI believe the principal benefits previously expected in the merger
can be obtained through this expanded licensing arrangement. Under the amended
arrangements, the Company plans to use the ITI system in its Master of
Information Technology and Bachelor of Information Technology degree programs in
four to five new campus locations in the Company's 1999 fiscal year.
In the fourth quarter, the Company will expense approximately $650,000 of
accounting, legal, and other costs associated with the planned combination with
ITI. The Company has approximately $160,000 of combination costs included in
Other Current Assets at February 28, 1998.
6
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
The following discussion of the results of operations and financial
condition of the Company and the Predecessor should be read in conjunction with
the "Selected Consolidated Financial Data," the Company's Consolidated Financial
Statements and Notes thereto and the Predecessor's Consolidated Financial
Statements and the Notes thereto for the fiscal year ended May 31, 1997 included
in the Company's Registration Statement on Form S-1, as amended, and the related
prospectus as filed with the Securities and Exchange Commission, as well as in
conjunction with the consolidated financial statements and notes thereto for the
three months and nine months ended February 28, 1998 included in Item 1. Unless
otherwise specified, any reference to a "fiscal year" is to a fiscal year ended
May 31.
This Quarterly Report on Form 10-Q contains forward-looking statements.
Additional written or oral forward-looking statements may be made by the Company
from time to time in filings with the Securities and Exchange Commission or
otherwise. The words "believe," "plan," "expect," "anticipate," "project" and
similar expressions identify forward-looking statements, which speak only as of
the date the statement was made. Such forward-looking statements are within the
meaning of that term in Section 27A of the Securities Act of 1933, as amended,
and Section 21E of the Securities Exchange Act of 1934, as amended. Such
statements may include, but are not limited to, projections of revenues, income
or loss, expenses, capital expenditures, plans for future operations, financing
needs or plans, the impact of inflation and plans relating to products or
services of the Company, as well as assumptions relating to the foregoing. The
Company undertakes no obligation to publicly update or revise any
forward-looking statements, whether as a result of new information, future
events, or otherwise.
Forward-looking statements are inherently subject to risks and
uncertainties, some of which cannot be predicted or quantified. Future events
and actual results could differ materially from those set forth in, contemplated
by, or underlying the forward-looking statements. Statements in this Quarterly
Report, including Notes to Consolidated Financial Statements and "Management's
Discussion and Analysis of Financial Condition and Results of Operations,"
describe factors, among others, that could contribute to or cause such
differences. Additional factors that could cause actual results to differ
materially from those expressed in such forward-looking statements include,
without limitation, new or revised interpretations of regulatory requirements,
changes in or new interpretations of other applicable laws, rules and
regulations, failure to maintain or renew required regulatory approvals,
accreditation or state authorizations, failure to obtain the Southern
Association of Colleges and Schools' ("SACS") approval to operate in new states,
changes in student enrollment, and other factors set forth in this Quarterly
Report on Form 10-Q and other reports or materials filed or to be filed with the
Securities and Exchange Commission (as well as information included in oral
statements or other written statements made or to be made by the Company or its
management).
Results of Operations
The following table sets forth, for the periods indicated, the percentage
relationship of certain statement of operations items to net revenues for the
Company and the Predecessor:
7
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<TABLE>
<CAPTION>
Three Months Ended February 28, Nine Months Ended February 28,
-------------------------------- ---------------------------------
1996 1996
1997 1996 Pro Forma (3) 1997 1996 (2) Pro Forma (3)
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<S> <C> <C> <C> <C> <C> <C>
Net revenues ........................................... 100.0% (a) 100.0% 100.0% (a) 100.0%
Costs and expenses:
Cost of education and facilities ..................... 36.6% 36.5% 40.9% 41.9%
Selling and promotional expenses ..................... 14.2% 9.9% 15.6% 14.6%
General and administrative expenses .................. 22.7% 25.6% 29.0% 27.4%
Amortization of goodwill ............................. 2.0% 2.9% 2.7% 3.8%
------ ------ ----- -----
Total costs and expenses ............................ 75.5% 74.9% 88.2% 87.6%
------ ------ ----- -----
Income from campus operations .......................... 24.5% 25.1% 11.8% 12.4%
Income from management agreement ....................... 0.0% 2.2% 0.1% 1.1%
------ ------ ----- -----
Income from operations ................................. 24.5% 27.3% 11.9% 13.5%
Interest expense ....................................... 0.5% 0.6% 4.5% 6.3%
Other income -- net .................................... 0.6% 1.1% 0.5% 1.1%
------ ------ ----- -----
Income before income taxes and extraordinary item 24.7% 27.9% 7.9% 8.2%
Provision for income taxes ............................. (10.7%) (12.3%) (4.2%) (4.8%)
------ ------ ----- -----
Income before extraordinary item ................ 14.0% 15.6% 3.6% 3.4%
------ ------ ----- -----
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</TABLE>
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(a) Because the results of the Company during the period from July 1996
through October 1996 related primarily to the Company's acquisition
activities, were non-operational in nature and were immaterial in amount,
and generated no revenue, the Company has not presented information with
respect to the period from July 1, 1996 through February 28, 1997 as this
information would not be meaningful.
The Company was organized on July 1, 1996 for the purpose of acquiring
the Predecessor and all of the capital stock of EduTrek Systems. Prior to the
Company's acquisition of the Predecessor in October 1996, the Company's
operations were de minimis as its principal operations primarily related to
the acquisition of the Predecessor. The following discussion compares the
Company's results for the three months and nine months ended February 28,
1998 to the Predecessor's pro forma results for the three months and nine
months ended February 28, 1997. The pro forma results of the Predecessor as
described
8
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herein assume that the acquisition of the Predecessor occurred on June 1, 1996
and that the Offering occurred at the end of September 1996. The period June
through November is comprised of the Summer I term, the Summer II term, and
two-thirds of the Fall term. The period from December through February is
comprised of one-third of the Fall term and four-fifths of the Winter term.
Three Months Ended February 28, 1998 Compared to Three Months Ended February
28, 1997 (Pro Forma)
NET REVENUES. Net revenues increased by approximately $3.9 million, or 44.3%,
from $8.8 million for the three months ended February 28, 1997 (pro forma)
(the "1997 period") to $12.7 million for the three months ended February 28,
1998 (the "1998 period"). Of the 44.3% increase, 20.0%, or approximately $1.8
million, was due to the consolidation of The American College in Dubai
("Dubai") (see Note 6 of notes to financial statements). Of the remaining
24.3%, 9.0%, or approximately $795,000, was due to an increase in student
enrollment and 7.4%, or approximately $655,000, was the result of a tuition
increase. The remaining 7.7%, or approximately $679,000 was from the
corporate education division, which did not begin generating revenues until
June 1997. All campuses had increases in net revenues and student enrollments
from the 1997 period to the 1998 period. Enrollment for the Fall term totaled
3,045 in the 1998 period, up from 2,815 in the 1997 period, and enrollment
for the Winter term totaled 2,899 in the 1998 period, up from 2,699 in the
1997 period.
COST OF EDUCATION AND FACILITIES. Cost of education and facilities increased
approximately $1.4 million, or 44.5%, from $3.2 million in the 1997 period to
$4.6 million in the 1998 period. Education costs increased approximately
$998,000, or 56.9%, from $1.8 million in the 1997 period to $2.8 million in the
1998 period. Of the 56.9% increase, 18.7%, or approximately $328,000, relates to
the consolidation of Dubai; 27.9%, or approximately $490,000, was due to
instructional cost increases (approximately $304,000 relates to the corporate
education division and the Graduate School of Information Technology which are
new programs); and 10.3%, or approximately $180,000, was due to royalty payments
associated with curriculum licensing for the corporate education and the
Graduate School of Information Technology. Facility costs increased
approximately $432,000, or 29.5%, from $1.5 million in the 1997 period to $1.9
million in the 1998 period. Of the 29.5% increase, 6.3%, or approximately
$92,000, relates to the consolidation of Dubai. The remaining 23.2%, or
approximately $340,000, is due to rent increases and an increase in the number
of housing students. As a percentage of net revenues, costs of education and
facilities increased slightly from 36.5% in the 1997 period to 36.6% in the 1998
period.
SELLING AND PROMOTIONAL EXPENSES. Selling and promotional expenses increased by
approximately $933,000, or 107.5%, from $868,000 in the 1997 period to $1.8
million in the 1998 period. Of the 107.5% increase, 8.4%, or approximately
$73,000, relates to the consolidation of Dubai. Approximately 65%, or
approximately $565,000, relates to increases in marketing and advertising
expenses at the Company's campuses during the 1998 period. Of the $565,000,
$265,000 relates to the Graduate School of Information Technology, which began
classes in December 1997, and $73,000 relates to the Center for Professional
Studies, which began in March 1998. The remaining $227,000 of marketing and
advertising relates to the AIU campuses. Of the remaining 34.0%, 30.0%, or
approximately $261,000, was due to commissions paid to salespeople in the
Company's corporate education division during the 1998 period and 4.0%, or
approximately $35,000, was due to increases in admissions costs. Selling and
promotional expenses increased as a percentage of net revenues from 9.9% in the
1997 period to 14.2% in the 1998 period primarily due to marketing costs
increasing at a higher rate than net revenues due to the start-up costs of new
programs.
GENERAL AND ADMINISTRATIVE EXPENSES. General and administrative expenses
increased approximately $633,000, or 28.1%, from $2.3 million in the 1997 period
to $2.9 million in the 1998
9
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period. Of the net increase, general and administrative expenses increased
$957,000 due to the consolidation of Dubai and decreased approximately $324,000
due to the capitalization of pre-operating costs (see Note 4 of notes to
financial statements). As a percentage of net revenues, general and
administrative expenses decreased from 25.6% in the 1997 period to 22.7% in the
1998 period.
AMORTIZATION OF GOODWILL. Amortization of goodwill of $252,000 in the 1998
period was the result of the October 1996 acquisition of the Predecessor with
goodwill costs being amortized over a 40-year period. The pro forma results of
the Predecessor for the 1997 period assume goodwill expense of $252,000.
INCOME FROM MANAGEMENT AGREEMENT. As a result of the consolidation of Dubai
effective September 1, 1997, there was no income from the Dubai management
agreement in the 1998 period. The portion of income from operations related
to Dubai is approximately $311,000, which represents an increase of 60.3%
primarily due to an increase in enrollment.
INTEREST EXPENSE. Interest expense is primarily due to borrowing costs and
remained relatively constant during the 1997 and 1998 periods.
OTHER INCOME -NET. Other income--net is primarily due to interest income and
remained relatively constant during the 1997 and 1998 periods.
Nine Months Ended February 28, 1998 Compared to Nine Months Ended February 28,
1997 (Pro Forma)
NET REVENUES. Net revenues increased by approximately $7.9 million, or 38.7%,
from $20.4 million for the nine months ended February 28, 1997 (pro forma)
(the "nine month 1997 period") to $28.2 million for the nine months ended
February 28, 1998 (the "nine month 1998 period"). Of the 38.7% increase,
14.6%, or approximately $3.0 million, was due to the consolidation of Dubai.
Of the remaining 24.1%, 11.0%, or approximately $2.2 million, was due to an
increase in student enrollment and 6.1%, or approximately $1.3 million, was
the result of a tuition increase. The remaining 7.0%, or approximately $1.4
million, was from revenues from the corporate education division, which did
not begin generating revenues until June 1997. All campuses had increases in
net revenues and student enrollments from the nine month 1997 period to the
nine month 1998 period. Enrollments for the first and second Summer terms
totaled 2,721, up from 2,244 the previous year. Enrollment for the Fall term
totaled 3,045, up from 2,815 the previous year. Enrollment for the Winter
term totaled 2,899, up from 2,699 the previous year.
COST OF EDUCATION AND FACILITIES. Cost of education and facilities increased
approximately $3.0 million, or 35.4%, from $8.5 million in the nine month 1997
period to $11.5 million in the nine month 1998 period. Education costs increased
approximately $2.0 million, or 43.0%, from $4.8 million in the nine month 1997
period to $6.8 million in the nine month 1998 period. Of the 43.0% increase,
12.6%, or approximately $598,000, relates to the consolidation of Dubai; 22.7%,
or approximately $1.1 million, was due to instructional cost increases
(approximately $429,000 relates to the corporate education division and the
Graduate School of Information Technology which are new programs); and 7.7%, or
approximately $367,000, was due to royalty payments associated with curriculum
licensing for the corporate education division and the Graduate School of
Information Technology. Facility costs increased approximately $976,000, or
25.3%, from $3.9 million in the nine month 1997 period to $4.8 million in the
nine month 1998 period. Of the 25.3% increase, 5.3%, or approximately $203,000,
relates to the consolidation of Dubai. Of the remaining 20.0%, or approximately
$773,000, $578,000 was due to an increase in the number of housing students and
$195,000 was due to rent increases. Costs of education and facilities
10
<PAGE>
decreased slightly as a percentage of net revenues from 41.9% in the nine month
1997 period to 40.9% in the nine month 1998 period primarily due to greater net
revenues being spread over the fixed costs related to centralized student
services.
SELLING AND PROMOTIONAL EXPENSES. Selling and promotional expenses increased by
approximately $1.4 million, or 48.6%, from $3.0 million in the nine month 1997
period to $4.4 million in the nine month 1998 period. Of the 48.6% increase,
4.8%, or approximately $142,000, relates to the consolidation of Dubai. Of the
remaining 43.8%, 19.9%, or approximately $592,000, relates to increases in
marketing and advertising expenses at the Company's campuses during the 1998
period. Of the $592,000, $347,000 relates to the Graduate School of Information
Technology, which began classes in December 1997, and $73,000 relates to the
Center for Professional Studies, which began classes in March 1998. The
remaining $172,000 of marketing and advertising relates to the AIU campuses. Of
the remaining 23.9%, 16.2%, or approximately $480,000, was due to commissions
paid to salespeople in the Company's corporate education division during the
nine month 1998 period and 7.7%, or approximately $227,000, was due to increases
in admission costs. Selling and promotional expenses slightly increased as a
percentage of net revenues from 14.6% in the nine month 1997 period to 15.6% in
the nine month 1998 period primarily due to marketing costs increasing at a
higher rate than net revenues due to the start-up costs of new programs.
GENERAL AND ADMINISTRATIVE EXPENSES. General and administrative expenses
increased approximately $2.6 million, or 46.8%, from $5.6 million in the nine
month 1997 period to $8.2 million in the nine month 1998 period. Of the 46.8%
increase, 27.6%, or approximately $1.5 million relates to the consolidation of
Dubai. The remaining increase in costs was primarily due to additions of
personnel at the home office related to new programs. As a percentage of net
revenues, general and administrative expenses increased from 27.4% in the nine
month 1997 period to 29.0% in the nine month 1998 period.
AMORTIZATION OF GOODWILL. Amortization of goodwill of $756,000 in the nine month
1998 period was the result of the October 1996 acquisition of the Predecessor
with goodwill costs being amortized over a 40-year period. The pro forma results
of the Predecessor for the 1996 period assume goodwill expense of $756,000.
INCOME FROM MANAGEMENT AGREEMENT. Income from the Dubai management agreement
decreased 89.7%, or approximately $201,000, from the nine month 1997 period due
to the consolidation of Dubai effective September 1, 1997. The portion of income
from operations related to Dubai for the nine month 1998 period is approximately
$486,000, which represents an increase of 117.0% primarily due to an increase in
enrollment.
INTEREST EXPENSE. Interest expense is primarily due to borrowing costs and
remained relatively constant during the nine month 1997 and 1998 periods.
OTHER INCOME -NET. Other income--net decreased by approximately $79,000, or
36.6%, primarily due to a nonrecurring health insurance refund in the 1997
period.
SEASONALITY
The Company experiences seasonality in its results of operations primarily as a
result of changes in the level of student enrollments. While the Company enrolls
students throughout the year, the Company's first and second fiscal quarter
enrollments and related revenues generally are lower than the third and fourth
fiscal quarters due to traditionally lower student enrollment levels in the
summer terms (first fiscal quarter is comprised of the Summer I term and
one-half of the Summer II term; second fiscal quarter is comprised of one-half
of the Summer II term and two-thirds of the Fall term). First and second fiscal
quarter costs and expenses historically are higher as a percentage of net
revenues as a result of certain
11
<PAGE>
fixed costs which are not significantly affected by the seasonal first and
second fiscal quarter declines in net revenues.
LIQUIDITY AND CAPITAL RESOURCES
The Company finances its operating activities and capital requirements
principally from cash provided by operating activities, proceeds from its
Offering completed September 29, 1997, and borrowings under its revolving loan
(the "Revolving Loan"). Borrowings under the Revolving Loan currently bear
interest at 9.5% and are payable quarterly. As of February 28, 1998, the maximum
permitted borrowings under the Revolving Loan was $1.75 million. On October 1,
1998, the maximum permitted borrowings under the Revolving Loan will be further
reduced to $1.0 million. There has been no outstanding balance against the
Revolving Loan since September 1997.
The Company experienced positive operating cash flow of approximately $2.1
million for the nine month 1998 period which was primarily the result of AIU's
Fall and Winter term tuition receipts and noncash depreciation and amortization
charges of approximately $1.8 million.
The Company's capital assets consist primarily of classroom equipment (such
as computers, software, and video equipment), classroom and office furniture,
and leasehold improvements. All building facilities are leased. The Company
plans to continue to expand current facilities, upgrade and replace equipment,
and open new campuses. During the three month 1998 period, the Company spent
approximately $778,000 to upgrade certain classroom equipment and furniture and
for other capital items. During the remainder of fiscal 1998, the Company
intends to make certain improvements to its campuses including furniture,
fixtures and equipment improvements, computerizing classrooms, and implementing
electronic library systems at an estimated cost of $500,000. Also by August
1998, the Company plans to implement the Master of Information Technology
("MIT") program in the District of Columbia. The Company implemented the MIT
program in December 1997 in the Atlanta campus curricula with investment and
start-up costs of approximately $1.5 million. The Company estimates that the
total cash required to implement the District of Columbia MIT program, including
computers, software, leasehold improvements, license fees and other start-up
expenses, will be approximately $2.0 million. The Company anticipates that these
investment and start-up costs of approximately $4.0 million will be funded
primarily from working capital, the Revolving Loan, proceeds from the Offering,
and a new credit facility currently being negotiated with NationsBank, N.A. The
Company expects primarily to use cash flow to repay such investment and start-up
costs associated with the implementation of the MIT program over a period of
approximately two years. To support its growth, the Company also is implementing
a centralized information system to integrate AIU's campus operations and
financial data including admissions, financial aid, student services, placement
services, and default management. The Company anticipates that the information
system will be fully operational by the end of calendar year 1999 and that it
will require approximately $1.5 million in fiscal 1998 and 1999 to develop and
implement this integrated information system.
While the Company's financing agreements limit the amount of capital
expenditures that may be incurred by the Company, management intends to
renegotiate these financing agreements on terms acceptable to the Company,
although there can be no assurance that such renegotiation, if undertaken, will
be successful. To take advantage of the highly fragmented postsecondary
education market and to expand its international presence, from time to time the
Company also plans to acquire existing schools in favorable locations throughout
the U.S. as well as utilize joint ventures to open campuses outside the U.S. The
Company's ability to fund its working capital and capital expenditure
requirements, implement the MIT program, make interest payments, fund future
acquisitions, and meet it other cash requirements, depends on, among other
things, internally generated funds, an additional line of credit currently being
negotiated, and funds under the Company's Revolving Loan. Management believes
that such sources, together with the remaining net proceeds of the Company's
Offering, will be sufficient to meet the Company's capital requirements and
operating needs for the remainder of fiscal 1998. However, if there is a
significant reduction of internally generated funds or if the Company is unable
to satisfy the financial
12
<PAGE>
covenants of the Revolving Loan, the Company may require additional funds from
outside sources. In such event, there can be no assurance that the Company will
be able to obtain such funding as and when required or on acceptable terms.
Cash flow from operations on a long-term basis is partly dependent on the
receipt of funds from Title IV Programs. Disbursement of funds available under
the various federal student financial assistance programs ("Title IV Programs")
under Title IV of the Higher Education Act of 1965, as amended ("HEA") is
dictated by federal regulations including, among others, certain financial
responsibility standards. Presently, approximately 27% of the Company's net
revenues is derived from Title IV Programs. Based on the consolidated financial
statements of the Company as of February 28, 1998, AIU does not satisfy all
financial responsibility standards. At February 28, 1998, the Company had a
positive tangible net worth of $3.6 million, but its acid test ratio of .8 was
under the required 1.0 ratio. Notwithstanding, the Company has maintained AIU's
eligibility to continue participating in the Title IV Programs by posting an
irrevocable letter of credit in the amount of $3.75 million in favor of the U.S.
Department of Education, which amount is approximately 50% of the Title IV
Program funds received by students enrolled at AIU. The letter of credit was
posted on March 19, 1997 and expired on March 31, 1998. The U.S. Department of
Education (DOE) has passed a new set of regulations effective July 1, 1998 to
monitor the financial stability of private, postsecondary schools. The DOE will
rely on three fiscal targets to determine the eligibility for participation in
federal student aid programs of private non- and for-profit schools. These
ratios include primary reserve ratio, equity ratio, and net income ratio. These
particular financial ratios were chosen to account for an institution's total
financial resources, including financial viability, profitability, liquidity,
ability to borrow, and capital resources. Each ratio is weighted and summed to
determine an overall score for each postsecondary school. Management believes
that the Company will be within the DOE's new guidelines and thus will no longer
be required to maintain its letter of credit once the Company has reported its
fiscal 1998 financial results to the DOE.
On March 31, 1998, the Company and ITI Education Corporation (ITI)
announced that their planned combination was terminated in favor of amended and
expanded licensing arrangements under which the Company acquired rights to ITI's
information technology education system. The expanded licensing arrangements
include 11 major market areas in the United States and internationally. The
Company and ITI believe the principal benefits previously expected in the merger
can be obtained through this expanded licensing arrangement. Under the amended
arrangements, the Company plans to use the ITI system in its Master of
Information Technology and Bachelor of Information Technology degree programs in
four to five new campus locations in the Company's 1999 fiscal year.
IMPACT OF INFLATION
The Company does not believe its operations have been materially affected
by inflation.
YEAR 2000
The Company's computer information system is not currently configured to
recognize the year 2000 in the two digit date field used by such system. The
Company is currently implementing a new centralized information system to
integrate AIU's operations and financial data including admissions, financial
aid, student services, placement services, and default management. The new
system is designed to properly recognize the year 2000 in the two digit date
field. The Company anticipates that the information system will be fully
operational by the end of calendar year 1999 and that it will require a total of
approximately $1.5 in fiscal 1998 and fiscal 1999 to develop and implement this
integrated information system. The management of the Company does not anticipate
that expenditure of such funds to implement the new computer system will have a
material impact on the Company's results of operations, liquidity, or capital
resources. In the event this information system is not implemented, management
will evaluate other available options to revise its computer programs, as
necessary, for the effect of the year 2000 problem.
13
<PAGE>
PART II - OTHER INFORMATION
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
10.17 - Lease: Embassy Row 500 Between EduTrek International,
Inc., a Georgia Corporation (Tenant) and a Maryland
Corporation (Landlord)
27.1 - Financial Data Schedule (for SEC use only)
(b) Reports on Form 8-K. No report on Form 8-K was filed during the
quarter ended February 28, 1998.
14
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
EDUTREK INTERNATIONAL, INC.
Date: April 13, 1998 By: /s/ Steve Bostic
----------------
Steve Bostic, President and
Chief Executive Officer
(principal executive officer)
Date: April 13, 1998 By: /s/ Donald J. Blankers
----------------------
Donald J. Blankers, Chief Financial
Officer (principal financial and
accounting officer)
15
<PAGE>
Exhibit 10.17 - Lease: Embassy Row 500 Between EduTrek International, Inc., a
Georgia corporation (Tenant) and a Maryland Corporation (Landlord)
THIS LEASE (the "Lease") is made as of February 16, 1998 between CarrAmerica
Realty Corporation (the "Landlord") and the Tenant as named in the Schedule
below. The term "Project" means the building (the "Building") known as "Embassy
Row 500," the Parking Deck (as such term is defined in Section 42), and the land
described on Appendix H (the "Land") located at 6600 Peachtree-Dunwoody Road,
Atlanta, Georgia 30328. "Premises" means that part of the Project leased to
Tenant described in the Schedule and outlined on Appendix A.
The following schedule (the "Schedule") is an integral part of this Lease. Terms
defined in this Schedule shall have the same meaning throughout the Lease.
1. Tenant: EduTrek International, Inc.
2. Premises: 100% of the rentable square feet in the Building (there are
75,711 rentable square feet in the Building).
Phase 1 of the Premises: 11,358 rentable square feet on Floor(s) 1 and
2 as demarcated on Appendix A.
Phase 2 of the Premises: 43,571 rentable square feet on Floor(s) 1 and
2 as demarcated on Appendix A.
Phase 3 of the Premises: 20,782 rentable square feet on Floor 3 as
demarcated on Appendix A.
3. Rentable Square Feet of the Premises: 75,711
4. Tenant's Proportionate Share: 100% (based upon a total of 75,711
rentable square feet in the Building)
5. Security Deposit: None
6. Tenant's Real Estate Broker for this Lease: Cushman & Wakefield of
Georgia, Inc.
7. Landlord's Real Estate Broker for this Lease: CarrAmerica Realty
Corporation
8. Tenant Improvements: See the Tenant Improvement Agreement attached
hereto as Appendix C.
9. Commencement Date:
The Commencement Date for Phase 1 of the Premises is the latter to
occur of July 6, 1998 or the Completion Date (as defined in Appendix C) with
respect to Phase 1 of the Premises. Landlord and Tenant shall execute a
Commencement Date Confirmation substantially in the form of Appendix E promptly
following the Commencement Date for Phase 1 of the Premises.
The Commencement Date for Phase 2 of the Premises is the latter to
occur of December 1, 1998, or the Completion Date with respect to Phase 2 of
the Premises. Landlord and Tenant shall execute a Commencement Date
Confirmation substantially in the form of Appendix E promptly following the
Commencement Date for Phase 2 of the Premises. The Commencement Date for
Phase 3 of the Premises is the latter to occur of January 1, 1999 or the
Completion Date with respect to Phase 3 of the Premises. Landlord and Tenant
shall execute a Commencement Date Confirmation substantially in the form of
Appendix E promptly following the Commencement Date for Phase 3 of the
Premises.
10. Termination Date/Term: One Hundred Thirty-Eight (138) months after the
Commencement Date for Phase 1 of the Premises, or if the Commencement Date for
Phase 1 of the Premises is not the first day of a month, then after the first
day of the following month.
11. Guarantor: None
12. Base Amount: Seven and 10/100 Dollars ($7.10) times the total number of
rentable square feet in the Building (based upon a total of 75,711 rentable
square feet in the Building, the Base Amount thus equals $537,548.10); provided,
however, the Base Amount for the calendar year in which the second anniversary
of the Commencement
<PAGE>
Date for Phase 1 of the Premises occurs shall be equal to the product of
$537,548.10 multiplied by a fraction, the numerator of which is the actual
number of days from the second anniversary of the Commencement Date for Phase 1
of the Premises through the 31st day of December in such year and the
denominator of which is 365; and provided further, the Base Amount for the last
year of the Term (if not a full calendar year) shall be equal to the product of
$537,548.10 multiplied by a fraction, the numerator of which is the actual
number of days in such last year of the Term and the denominator of which is
365. [See Special Stipulation 44 in Appendix F.]
13. Base Rent: See the Base Rent schedule set forth on Appendix G which is
hereby incorporated by reference into this Schedule.
14. Legal Requirements: Any insurance requirement and any law, statute,
ordinance, order, rule, regulation or requirement of a Governmental Authority.
15. Governmental Authority: The United States, the state, county, city and
political subdivision in which the Building is located or which exercises
jurisdiction over the Building, and any agency, department, commission, board,
bureau or instrumentality of any them which exercises jurisdiction over the
Building.
16. Modified BOMA Standard: The American National Standard Method of
Measuring Floor Area in Office Buildings of the Building Owners and Managers
Association International (ANSI Z65.1-1980; reaffirmed 1989 and approved June
21, 1989, including question and answer section), as same may be modified as
shown on Appendix K. The BOMA Standard has been modified because of changes
requested by Tenant.
1. LEASE AGREEMENT.
On the terms stated in this Lease, Landlord leases the Premises to Tenant, and
Tenant leases the Premises from Landlord, for the Term beginning on the
Commencement Date for Phase 1 of the Premises and ending on the Termination Date
unless extended or sooner terminated pursuant to this Lease.
Subject to the provisions of of Appendix C, if with Landlord's consent (which
consent shall not be unreasonably withheld) Tenant takes possession or enters
into occupancy of Phase 1 of the Premises prior to the Commencement Date for
Phase 1 of the Premises for any reason (it being agreed that Tenant shall not
have the right to do business therein prior to such date without the prior
written consent of Landlord, which consent shall not be unreasonably withheld),
including for the purpose of preparing Phase 1 of the Premises for occupancy,
such possession or occupancy shall be pursuant to all of the terms, covenants
and conditions of this Lease, excluding the obligation to pay Base Rent for
Phase 1 of the Premises, which shall commence on the Commencement Date for Phase
1 of the Premises.
Subject to the provisions of Appendix C, if with Landlord's consent (which
consent shall not be unreasonably withheld) Tenant takes possession or enters
into occupancy of Phase 2 of the Premises prior to the Commencement Date for
Phase 2 of the Premises for any reason (it being agreed that Tenant shall not
have the right to do business therein prior to such date without the prior
written consent of Landlord, which consent shall not be unreasonably withheld),
including for the purpose of preparing Phase 2 of the Premises for occupancy,
such possession or occupancy shall be pursuant to all of the terms, covenants
and conditions of this Lease, excluding the obligation to pay Base Rent for
Phase 2 of the Premises, which shall commence on the Commencement Date for Phase
2 of the Premises.
Subject to the provisions of Appendix C, if with Landlord's consent (which
consent shall not be unreasonably withheld) Tenant takes possession or enters
into occupancy of Phase 3 of the Premises prior to the Commencement Date for
Phase 3 of the Premises for any reason (it being agreed that Tenant shall not
have the right to do business therein prior to such date without the prior
written consent of Landlord, which consent shall not be unreasonably withheld),
including for the purpose of preparing Phase 3 of the Premises for occupancy,
such possession or occupancy shall be pursuant to all of the terms, covenants
and conditions of this Lease, excluding the obligation to pay Base Rent for
Phase 3 of the Premises, which shall commence on the Commencement Date for Phase
3 of the Premises.
Subject to the terms and conditions of this Lease, Tenant shall have access to
the Premises, the Building parking facilities, and the Building loading dock
twenty-four (24) hours per day, every day of the year during the Term.
<PAGE>
2. RENT.
A. Types of Rent. Tenant shall pay the following Rent in the form of a check to
Landlord at the following address:
CarrAmerica Realty Corporation
t/a Embassy Row 500
P.O. Box 198184
Atlanta, GA 30384-8184
or, alternatively, at Tenant's option, Tenant shall pay the following Rent by
wire transfer as follows:
NationsBank, N.A. (South)
ABA Number 061-000-052
Account Number [To Be Determined by Landlord; wire transfers not permitted
hereunder until such account is established by Landlord and notice of same is
given to Tenant]
or to such other address or account as Landlord may notify Tenant:
(1) Base Rent in monthly installments in advance, the first monthly installment
payable concurrently with the execution of this Lease and thereafter on or
before the first day of each month of the Term in the amount set forth on the
Schedule.
(2) Operating Cost Share Rent in an amount equal to the Tenant's Proportionate
Share of the excess of Operating Costs for the applicable Fiscal Year of the
Lease (the "Excess Operating Costs") over the Base Amount, paid monthly in
advance in an estimated amount. The definition of Operating Costs, and the
method for billing and payment of Operating Cost Share Rent, are set forth in
Sections 2B, 2C and 2D. [See Special Stipulation 44 in Appendix F.]
(3) Additional Rent in the amount of all costs, expenses, liabilities, and
amounts which Tenant is required to pay under this Lease, excluding Base Rent
and Operating Cost Share Rent, but including any interest for late payment of
any item of Rent.
(4) Rent as used in this Lease means Base Rent, Operating Cost Share Rent, and
Additional Rent. Tenant's agreement to pay Rent is an independent covenant, with
no right of setoff, deduction or counterclaim of any kind except as otherwise
expressly and specifically set forth in this Lease.
B. Payment of Operating Cost Share Rent.
(1) Payment of Estimated Operating Cost Share Rent. Landlord shall, in good
faith, reasonably estimate the Operating Costs (including Taxes) of the Project
by April 1 of each Fiscal Year, or as soon as reasonably possible thereafter.
Landlord may revise these estimates whenever it obtains more accurate
information, such as the final real estate tax assessment or tax rate for the
Project.
Within ten (10) days after receiving the original or revised estimate from
Landlord setting forth (a) an estimate of Operating Costs for a particular
Fiscal Year, (b) the Base Amount, and (c) the resulting estimate of Excess
Operating Costs for such Fiscal Year, Tenant shall pay Landlord one-twelfth
(1/12th) of Tenant's Proportionate Share of the estimated Excess Operating
Costs, multiplied by the number of months that have elapsed in the applicable
Fiscal Year to the date of such payment including the current month, minus
payments previously made by Tenant for the months elapsed. On the first day of
each month thereafter, Tenant shall pay Landlord one-twelfth (1/12th) of
Tenant's Proportionate Share of this estimate, until a new estimate becomes
applicable.
(2) Correction of Operating Cost Share Rent. Landlord shall deliver to Tenant a
report for the previous Fiscal
<PAGE>
Year (the "Operating Cost Report") by April 1 of each year, or as soon as
reasonably possible thereafter, setting forth (a) the actual Operating Costs
incurred, as certified by a financial officer of Landlord, (b) the Base Amount,
(c) the amount of Operating Cost Share Rent due from Tenant, and (d) the amount
of Operating Cost Share Rent paid by Tenant. Within twenty (20) days after such
delivery, Tenant shall pay to Landlord the amount due minus the amount paid. If
the amount paid exceeds the amount due, Landlord shall apply the excess to
Tenant's payments of Operating Cost Share Rent next coming due or, at Tenant's
election by notice to Landlord, refund such excess to Tenant if Tenant is not in
default under this Lease beyond any applicable notice and cure period (in the
instance of a default, such excess shall be held as security for Tenant's
performance, may be applied by Landlord to the extent necessary to cure any such
default, and shall not be refunded until any such default is cured). In
addition, if such excess Operating Cost Share Rent paid by Tenant is more than
five percent (5%) of the amount of Tenant's Operating Cost Share Rent for such
year, such credit or refund, as the case may be, shall be made together with
interest at the Default Rate on the amount of such excess accruing from the
first day of July of the calendar year for which such excess is applicable until
the date of refund; provided, however, if a disproportionate amount of the
excess Operating Cost Share Rent is collected by Landlord prior to or after July
1 of the applicable calendar year (calculated with reference to the actual
amount of Tenant's Operating Cost Share Rent for such year if such amount were
paid in equal monthly installments), the interest payable by Landlord, if any,
on such excess shall be calculated in a manner so as to accrue only on the
amount of such excess, as and when such excess is received by Landlord, and in a
manner to give Landlord appropriate credit for any underpayments of Tenant's
Operating Cost Share Rent and any payments thereof not made when due.
C. Definitions.
(1) Included Operating Costs. "Operating Costs" means any expenses, costs and
disbursements of any kind, paid or incurred by Landlord in connection with the
ownership, management, maintenance, operation, insurance, repair and other
related activities in connection with any part of the Project and of the
personal property, fixtures, machinery, equipment, systems and apparatus used in
connection therewith, including the cost of providing those services required to
be furnished by Landlord under this Lease. Operating Costs shall include,
without limitation, Taxes (defined below) and an annual management fee of four
percent (4%) of the product of (i) the applicable rate per rentable square foot
per annum for each respective year set forth below multiplied by (ii) the number
of rentable square feet then existing in the Premises, to wit (the Commencement
Date for Phase 1 of the Premises is abbreviated below as "CD 1"):
Rate Per Annum
<TABLE>
<CAPTION>
Period Per Rentable Square Foot
- ------ ------------------------
<S> <C>
CD 1 - 12/31/98 $21.35
1/1/99 - 6/30/99 $21.35
7/1/99 - 6/30/00 $21.78
7/1/00 - 12/31/00 $21.78
1/1/01 - 12/31/01 $22.07
1/1/02 - 12/31/02 $22.37
1/1/03 - 12/31/03 $22.68
1/1/04 - 12/31/04 $22.98
1/1/05 - 12/31/05 $23.30
1/1/06 - 12/31/06 $23.63
1/1/07 - 12/31/07 $23.96
1/1/08 - 12/31/08 $24.30
1/1/09 - End of initial Term $24.64
Each calendar year of each Renewal Term Base Rent rate per rsf per annum
</TABLE>
Operating Costs shall also include the costs of any capital improvements which
are intended to reduce Operating Costs or improve safety, and those made to keep
the Project in compliance with governmental requirements applicable from time to
time (collectively, "Included Capital Items"); provided, that the costs of any
Included
<PAGE>
Capital Item shall be amortized by Landlord, together with an amount equal to
interest at the Prime Rate plus one and one-half percent (1.5%) per annum, over
the estimated useful life of such item and such amortized costs are only
included in Operating Costs for that portion of the useful life of the Included
Capital Item which falls within the Term; and provided, further, with respect to
any capital improvements which are intended to reduce Operating Costs, the
amortized cost of such capital investment item shall not exceed the actual
savings in Operating Costs in any given year, as reasonably estimated by
Landlord.
As of the date of this Lease, Tenant leases all of the rentable area in the
Building, and for so long as Tenant continues to lease all of the rentable area
in the Building the following provisions in this grammatical paragraph shall not
be applicable. If Tenant does not lease all of the rentable area in the Building
and if the average occupancy level was less than ninety-five percent (95%) of
the rentable area of the Building during any Fiscal Year, and if the Base Amount
was calculated based on a projected average occupancy level of at least
ninety-five percent (95%) of the rentable area of the Building, then, in those
events, Landlord may reasonably adjust (an "Equitable Adjustment") Operating
Costs to equal what would have been incurred by Landlord had ninety-five percent
(95%) of rentable area of the Building been occupied. This Equitable Adjustment
shall apply only to Operating Costs (specifically including Taxes) which are
variable and therefore increase as occupancy of the Building increases. Landlord
may incorporate the Equitable Adjustment in its estimates of Operating Costs.
Notwithstanding the foregoing, in no event shall Landlord allocate Operating
Costs hereunder to Tenant that when added to allocations of Operating Costs to
tenants of the Building would result in Landlord being entitled to receive from
all tenants of the Building more than 100% of Operating Costs.
Landlord and Tenant acknowledge that the Project is part of the development
known on the date of this Lease as "Embassy Row" which does or may include other
improvements (all land and improvements now or hereafter existing comprising the
development now known as Embassy Row, including the Project, is herein referred
to as the "Development"), and that certain of the costs of management, operation
and maintenance of the Development shall, from time to time, be allocated among
and shared by two or more of the improvements in the Development (including the
Building). The determination of such costs and their allocation shall be made by
Landlord in its reasonable discretion, consistent with the manner in which
landlords of other first class developments in the Geographic Area customarily
apportion such costs. Accordingly, the term "Operating Costs," as used in this
Lease, shall, from time to time, include some costs, expenses, and taxes
enumerated above which were incurred with respect to other improvements in the
Development but which are allocated to and shared by the Building in accordance
with the foregoing. Notwithstanding the foregoing, Tenant understands and agrees
that its rights to use other portions of the development of which the Building
is a part are those available to the general public and that this Lease does not
grant to Tenant additional rights of use.
(2) Excluded Operating Costs. Operating Costs shall not include:
(a) costs of alterations of tenant premises;
(b) costs of capital improvements other than Included Capital Items;
(c) interest and principal payments on mortgages or any other debt costs
(except to the extent otherwise permitted by this Lease), or rental
payments on any ground lease of the Project (except to the extent such
rental represents the payment of taxes and insurance);
(d) real estate brokers' leasing commissions;
(e) legal fees, space planner fees and advertising expenses incurred with
regard to leasing the Building or portions thereof;
(f) any cost or expenditure for the repair or replacement of any item which is
covered under a warranty or for which Landlord is reimbursed, by insurance
proceeds or otherwise, except by Operating Cost Share Rent;
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(g) the cost of any service or work furnished to any office tenant of the
Project which Landlord does not make available to Tenant;
(h) depreciation and amortization (except on any Included Capital Items);
(i) franchise or income taxes imposed upon Landlord, except to the extent
imposed in lieu of all or any part of Taxes;
(j) costs of correcting defects in construction of the Project, including costs
to correct any violation (not caused by Tenant, its employees or agents) of
any Legal Requirement which was in effect at the completion of such
construction (as opposed to the cost of normal repair, maintenance and
replacement expected with the construction materials and equipment installed
in the Project in light of their specifications), and costs of tools and
equipment used in the initial construction of the Project;
(k) legal and auditing fees which are for the benefit of Landlord such as
collecting delinquent rents, preparing tax returns and other financial
statements, and audits other than those incurred in connection with the
preparation of reports required pursuant to Section 2B above;
(l) the wages of any employee for services not related directly to the
management, maintenance, operation and repair of the Building;
(m) fines, penalties and interest (except to the extent otherwise expressly
permitted by this Lease);
(n) any costs representing any amount paid to Landlord, or to any person, firm,
or entity related to Landlord, for services and materials to the extent such
amount exceeds the amount that would be paid for such services or materials
at the then existing market rates to an unrelated person, firm or
corporation;
(o) the cost of repairs incurred by reason of fire or other casualty or by the
exercise of eminent domain;
(p) estate, inheritance, gift, transfer, net worth, intangibles, franchise and
income taxes of Landlord (but in no event shall this subsection exclude rent
taxes, business license taxes, or any net worth, franchise or income tax
assessment, tax, levy, imposition or charge in lieu of or in addition to
real estate taxes);
(q) compensation paid to officers and executives of Landlord above the level of
senior property manager or controller (but it is understood that 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 Costs under this Lease);
(r) costs incurred solely as a result of the violation by Landlord of the terms
and conditions of any lease, provided such costs would not otherwise be
incurred in the absence of such violation of the terms and conditions of any
lease;
(s) costs incurred to remove or encapsulate asbestos or other Hazardous
Substances; and
(t) costs of acquiring sculptures, paintings and other objects of art.
(3) Taxes. "Taxes" means any and all taxes, assessments and charges of any kind,
general or special, ordinary or extraordinary, levied against the Project, which
Landlord shall pay or become obligated to pay in connection with the ownership,
leasing, renting, management, use, occupancy, control or operation of the
Project or of the personal property, fixtures, machinery, equipment, systems and
apparatus used in connection therewith. Taxes shall include real estate taxes,
personal property taxes, sewer rents, water rents, special or general
assessments, transit taxes, ad valorem taxes, and any tax levied on the rents
hereunder or the interest of Landlord under this Lease (the "Rent Tax"). Taxes
shall also include all reasonable fees and other reasonable costs and expenses
paid by Landlord in
<PAGE>
reviewing any tax and in seeking a refund or reduction of any Taxes, whether or
not the Landlord is ultimately successful.
For any year, the amount to be included in Taxes (a) from taxes or assessments
payable in installments, shall be the amount of the installments (with any
interest) due and payable during such year, and (b) from all other Taxes, shall
at Landlord's election be the amount accrued, assessed, or otherwise imposed for
such year or the amount due and payable in such year. Any such election pursuant
to the preceding clause (b) shall be made by Landlord in a reasonable and
consistent manner. Any refund or other adjustment to any Taxes by the taxing
authority, shall apply during the year in which the adjustment is made.
Taxes shall not include any net income (except Rent Tax), capital, stock,
succession, transfer, franchise, gift, estate or inheritance tax, except to the
extent that such tax shall be imposed in lieu of any portion of Taxes.
(4) Lease Year. "Lease Year" means each consecutive twelve-month period
beginning with the Commencement Date for Phase 1 of the Premises, except that if
the Commencement Date for Phase 1 of the Premises is not the first day of a
calendar month, then the first Lease Year shall be the period from the
Commencement Date for Phase 1 of the Premises through the final day of the
twelve months after the first day of the following month, and each subsequent
Lease Year shall be the twelve months following the prior Lease Year.
(5) Fiscal Year. "Fiscal Year" means the calendar year, except that the first
Fiscal Year and the last Fiscal Year of the Term may be a partial calendar year.
D. Computation of Base Rent and Rent Adjustments.
(1) Prorations. If this Lease begins on a day other than the first day of a
month, the Base Rent, Operating Cost Share Rent shall be prorated for such
partial month based on the actual number of days in such month. If this Lease
begins on a day other than the first day, or ends on a day other than the last
day, of the Fiscal Year, Operating Cost Share Rent shall be prorated for the
applicable Fiscal Year.
(2) Default Interest. Any sum due from Tenant to Landlord not paid when due
shall bear interest from the date due until paid at the Default Rate. Any sum
due from Landlord to Tenant not paid when due shall bear interest from the date
due until paid at the Default Rate. As used herein, the term "Default Rate"
means the Prime Rate plus three percent (3%) per annum. As used herein, the term
"Prime Rate" means the prime rate of interest published in the Money Rates Table
in the Wall Street Journal, or if unavailable in the Wall Street Journal, as
published in the Money Rates Table in the New York Times, or if unavailable in
the New York Times, the prime rate of interest announced publicly from time to
time by Citibank, N.A., New York, New York, or its successor, or should
Citibank, N.A., or its successor, abolish or abandon the practice of publishing
its prime rate at any time during the Term, then Landlord and Tenant shall
mutually agree upon a comparable reference rate which shall be deemed to be the
Prime Rate hereunder.
(3) Rent Adjustments. The square footage of the Premises and the Building set
forth in the Schedule are conclusively deemed to be the actual square footage
thereof, without regard to any subsequent remeasurement of the Premises or the
Building. If any Operating Cost paid in one Fiscal Year relates to more than one
Fiscal Year, Landlord may proportionately allocate such Operating Cost among the
related Fiscal Years.
(4) Books and Records. Landlord shall maintain books and records reflecting the
Operating Costs (including Taxes) in accordance with sound accounting and
management practices. Tenant and one of the independent nationally recognized
so-called "Big Six" certified public accountant firms shall have the right to
inspect and/or audit Landlord's records at Landlord's office upon at least
seventy-two (72) hours' prior notice during normal business hours during the one
hundred eighty (180) days following the respective delivery of the Operating
Cost Report. Tenant agrees that such inspection and/or audit shall be conducted
in a manner designed not to unreasonably interfere with the conduct of
Landlord's business. The inspection and/or audit shall be limited to that
portion of Landlord's books and records pertaining only to the Operating Costs
for the preceding calendar year,
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unless the inspection and/or audit proves that Landlord's calculation of
Operating Costs was in error, in which case Tenant shall have the right to
inspect and/or audit Landlord's books and records for prior years pertaining
only to such erroneous component of Operating Costs. The results of any such
inspection and/or audit shall be kept strictly confidential by Tenant and its
agents, and Tenant and such certified public accountant must agree, in their
contract for such services, to such confidentiality restrictions and shall
specifically agree that the results shall not be made available to any other
tenant of the Development. Unless Tenant sends to Landlord any written exception
to either such report within said one hundred eighty (180) day period, such
report shall be deemed final and accepted by Tenant. Tenant shall pay the amount
shown on both reports in the manner prescribed in this Lease, whether or not
Tenant takes any such written exception, without any prejudice to such
exception. If Tenant makes a timely exception, Landlord may cause its
independent certified public accountant or shall select and cause another firm
with at least five (5) years of experience in auditing the books and records of
commercial office projects to issue a report in response to Tenant's exception.
Any dispute between Landlord and Tenant with respect to Operating Costs arising
by reason of Tenant's audit shall be determined by arbitration by a panel of
three arbitrators in accordance with the rules and regulations for commercial
matters then obtaining of the American Arbitration Association or its successor
(hereinafter referred to as the "AAA"). The determination of the arbitrators
shall be final, binding and conclusive on Landlord and Tenant, and judgment say
be rendered thereon by any court having jurisdiction, upon application of either
Landlord or Tenant. Each party shall have the right to select one of the
arbitrators, and the third arbitrator, who shall, be a competent and impartial
person with at least ten (10) years' experience in office management accounting
in the Geographic Area, shall be selected by the other two arbitrators or,
failing agreement by them, the AAA.
(5) Miscellaneous. So long as Tenant is in default of any monetary obligation
under this Lease, Tenant shall not be entitled to any refund of any amount from
Landlord; any such refund may be applied by Landlord to the extent necessary to
cure any such monetary default, and if the monetary default is so cured by
Landlord the refund remaining after such application shall be promptly paid to
Tenant. If this Lease is terminated for any reason prior to the annual
determination of Operating Cost Share Rent, either party shall pay the full
amount due to the other within fifteen (15) days after Landlord's notice to
Tenant of the amount when it is determined. Landlord may commingle any payments
made with respect to Operating Cost Share Rent, without payment of interest.
3 PREPARATION AND CONDITION OF PREMISES; POSSESSION AND SURRENDER OF PREMISES.
A. Condition of Premises. Except as otherwise expressly provided in Appendix C,
Landlord is leasing the Premises to Tenant "as is", without any obligation to
alter, remodel, improve, repair or decorate any part of the Premises. Landlord
shall cause the Premises to be completed in accordance with the Tenant
Improvement Agreement attached as Appendix C.
B. Tenant's Possession. Tenant's taking possession of any portion of the
Premises shall be conclusive evidence that such portion of the Premises of which
Tenant has taken possession was in good order, repair and condition, except for
any "punch list" items (as that term is used in the construction industry) noted
by Tenant in writing to Landlord within sixty (60) days after taking possession
pursuant to any inspection of the Premises made by Tenant with Landlord within
such sixty (60) day period and except for latent defects not discoverable by
reasonable diligence by Tenant.
C. Maintenance. Throughout the Term, Tenant shall maintain each Phase of the
Premises in their condition as of the applicable Completion Date with respect to
each Phase of the Premises, loss or damage caused by the elements, ordinary
wear, and fire and other casualty excepted, and at the termination of this
Lease, or Tenant's right to possession, Tenant shall return the Premises to
Landlord in broom-clean condition. To the extent Tenant fails to perform either
obligation, Landlord may, but need not, restore the Premises to such condition
and Tenant shall pay the cost thereof.
4 PROJECT SERVICES.
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Landlord shall furnish services as follows:
A. Heating and Air Conditioning. During the normal business hours of 7:00 a.m.
to 6:00 p.m., Monday through Friday, and 7:00 a.m. to 1:00 p.m. on Saturday and
Sunday, all exclusive of Holidays, as defined below, Landlord shall furnish
heating and air conditioning in season to maintain conditions inside the
occupied or utilized portions of the Premises as follows:
(i) not more than 75 degrees Fahrenheit and 50% relative humidity (plus or minus
5%) when the outside temperature does not exceed 94 degrees Fahrenheit dry bulb
and 74 degrees Fahrenheit wet bulb;
(ii) not less than a minimum temperature of 70 degrees Fahrenheit when the
outside temperature is not less than 17 degrees Fahrenheit; and
(iii) reasonable temperatures when outside conditions are not within the ranges
established in clauses (i) and (ii) above provided, that reasonable adjustments
to such standards will be made for specific activities of Tenant (including the
design and location of Tenant improvements, lighting and equipment, and the
density of Tenant's occupancy, it being understood that the foregoing design
conditions are based on a population design of one occupant per 150 square feet
of usable area), and provided, further, reasonable adjustments to such standards
will be made to the extent Tenant installs equipment which adversely affects the
temperature maintained by the air conditioning system. If Tenant installs such
equipment, (a) Landlord may, unless Tenant releases Landlord from its obligation
to provide air conditioning in compliance with such standards in the area in
question, install supplementary air conditioning units in the Premises, and
Tenant shall pay to Landlord upon demand as Additional Rent the cost of design,
installation, operation and maintenance thereof, or (b) Tenant shall, subject to
the provisions of Section 5 below, install supplementary air conditioning units
in the Premises, and Tenant shall pay all costs to design and install same and
Tenant shall pay to Landlord upon demand as Additional Rent the cost of the
operation and maintenance thereof. The following dates shall constitute
"Holidays", as that term is used in this Lease: New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, Friday following Thanksgiving
Day, Christmas, and any other holiday generally recognized as such by the
majority of the landlords of office space in the Geographic Area, as determined
by Landlord in good faith. If, in the case of any specific holiday mentioned in
the preceding sentence, a different day shall be observed than the respective
day mentioned, then that day which constitutes the day observed by national
banks in Atlanta, Georgia on account of said holiday shall constitute the
Holiday under this Lease.
Landlord shall furnish heating and air conditioning after business hours if
Tenant provides Landlord reasonable prior notice, and pays Landlord as
Additional Rent all then current charges for such additional heating or air
conditioning, all at Landlord's actual aggregate cost (including reasonable
administrative cost) with no mark-up, provided that there shall be a two (2)
hour minimum charge each time any such additional services are provided. In
determining such cost, the cost shall include, but is not limited to, the water
cost, power cost, labor cost, management cost, accounting cost, and maintenance
cost (including supplies, repairs and a reserve for replacements) but excluding
any depreciation cost. If Tenant does not lease all of the rentable area of the
Building, Landlord may, at Tenant's expense, add a separate meter(s) to measure
the electricity and water consumed to provide such additional services.
B. Elevators. Except as otherwise provided in the following sentence, Landlord
shall provide passenger elevator service (by means of all elevators in the
Building) at all times throughout the Term to Tenant in common with Landlord and
all other tenants. Landlord shall provide limited passenger service (at least
one elevator) at times when the elevators are being maintained or repaired; in
case of an emergency, there may be no elevator service.
C. Electricity. Landlord shall provide sufficient electricity to operate normal
office lighting and equipment. Tenant shall not install or operate in the
Premises any electrically operated equipment or other machinery, other than
business machines and equipment normally employed for general office use which
do not require high electricity consumption for operation, without obtaining the
prior written consent of Landlord. If any or all of Tenant's equipment requires
electricity consumption in excess of that which is necessary to operate normal
office
<PAGE>
equipment, such consumption (including consumption for computer or telephone
rooms and special HVAC equipment) shall be submetered by Landlord at Tenant's
expense, and Tenant shall reimburse Landlord as Additional Rent for the cost of
its submetered consumption based upon Landlord's average cost of electricity.
Such Additional Rent shall be in addition to Tenant's obligations pursuant to
Section 2A(2) to pay its Proportionate Share of Operating Costs.
As used above, the term "sufficient electricity to operate normal office
lighting and equipment" means sufficient electrical capacity to operate (i)
incandescent lights, typewriters, calculating machines, photocopying machines
and other machines of the same low voltage electrical consumption (120/208
volts), provided that the total rated electrical design load for said lighting
and machines of low electrical voltage shall not exceed 3.0 watts per Rentable
Square Foot; and (ii) lighting (277/480 volts), provided that the total rated
electrical design load for said lighting shall not exceed 2.0 watts per Rentable
Square Foot (each such rated electrical design load to be hereinafter referred
to as the "Building Standard Rated Electrical Design Load"). Should Tenant's
total rated electrical demand load for the entire Premises or any portion
thereof (including, but not limited to, computer or telephone rooms) exceed the
Building Standard Rated Electrical Design Load for either low or high voltage
electrical consumption, or if Tenant's electrical design requires low voltage or
high voltage circuits in excess of Tenant's share of the building standard
circuits, Landlord will (at Tenant's expense) install such additional circuits
and associated high voltage panels and/or additional low voltage panels with
associated transformers (which additional circuits, panels and transformers
shall be hereinafter referred to as the "Additional Electrical Equipment"). If
the Additional Electrical Equipment is installed because Tenant's low voltage or
high voltage rated electrical demand load exceeds the applicable Building
Standard Rated Electrical Design Load, then a meter shall also be added (at
Tenant's expense) to measure the electricity used through the Additional
Electrical Equipment. The design and installation of any Additional Electrical
Equipment (or any related meter) required by Tenant shall be subject to the
prior approval of Landlord (which approval shall not be unreasonably withheld).
All reasonable expenses incurred by Landlord in connection with the review and
approval of any Additional Electrical Equipment shall also be reimbursed to
Landlord by Tenant. Tenant shall also pay on demand the actual metered cost of
electricity consumed through the Additional Electrical Equipment (if
applicable), plus any actual accounting expenses incurred by Landlord in
connection with the metering thereof.
D. Water. Landlord shall furnish hot and cold tap water for drinking and toilet
purposes. Tenant shall pay Landlord for water furnished for any other purpose as
Additional Rent at Landlord's actual aggregate cost (including reasonable
administrative cost) with no mark-up. In determining such cost, the cost shall
include, but is not limited to, the water cost, labor cost, management cost,
accounting cost, and maintenance cost (including supplies, repairs and a reserve
for replacements) but excluding any depreciation cost. Tenant shall not permit
water to be wasted. With Landlord's prior written consent (which shall not be
unreasonably withheld), Tenant may use the base building condenser water for the
operation of on-floor HVAC package units in the Premises, and Tenant shall pay
Landlord monthly as Additional Rent hereunder the actual cost of providing such
additional water services. If Tenant does not lease all of the rentable area of
the Building, Landlord may, at Tenant's expense, add a separate meter(s) to
measure the water consumed in providing such additional water services.
E. Janitorial Service. Landlord shall furnish janitorial service as described in
Appendix D. In the event Tenant desires any janitorial services other than those
services described in Appendix D, Landlord shall use its reasonable, good faith
efforts to provide such services and Tenant shall pay Landlord monthly as
Additional Rent hereunder the actual cost of providing such additional services.
F. Interruption of Services. If any of the Building equipment or machinery
ceases to function properly for any cause Landlord shall use reasonable
diligence to repair the same promptly. Landlord's inability to furnish, to any
extent, the Project services set forth in this Section 4, or any cessation
thereof resulting from any causes, including any entry for repairs pursuant to
this Lease, and any renovation, redecoration or rehabilitation of any area of
the Building shall not render Landlord liable for damages to either person or
property or for interruption or loss to Tenant's business, nor be construed as
an eviction of Tenant, nor work an abatement of any portion of Rent, nor relieve
Tenant from fulfillment of any covenant or agreement hereof. However, in the
event that an interruption of the Project services set forth in this Section 4
arising from Landlord's negligence causes the Premises to be
<PAGE>
untenantable for a period of at least three (3) consecutive business days (it
being agreed that Sunday shall not be considered a business day for purposes of
this Subsection F), monthly Base Rent shall be thereafter abated proportionately
until the service is restored.
G. Light Fixtures. Landlord shall replace fluorescent lamps and ballasts in the
fluorescent light fixtures installed in the Premises. Landlord shall also
replace incandescent lights.
H. Services Standard. During the Term, Landlord will use reasonable efforts to
cause the Building to be operated and managed in accordance with the standards
of other similar class A, multi-tenant office buildings (using a so-called
basket approach, and not by reference to any one specific office building) now
located within the central perimeter submarket of Atlanta, Georgia (bounded on
the west by Roswell Road and I-285, on the east by Chamblee Dunwoody Road and
I-285, on the north by Northridge Road, and on the south by the Glenridge
Connector; the "Geographic Area"), provided that Landlord shall not be obligated
to incur capital expenditures not reimbursable as Operating Costs under this
Lease in order to comply with such agreement, and provided further that nothing
contained in this sentence is intended to or shall be construed to require
Landlord to provide any services other than those expressly set forth in this
Lease, and provided further, electrical, heat, air conditioning and janitorial
service shall be deemed to satisfy the requirements set forth in this sentence
if such services satisfy the applicable standards set forth in this Lease.
5 ALTERATIONS AND REPAIRS.
A. Landlord's Consent and Conditions.
Tenant shall not make any improvements or alterations to the Premises or any
portion thereof (the "Work") without in each instance submitting plans and
specifications for the Work to Landlord and obtaining Landlord's prior written
consent (which consent shall not be unreasonably withheld) unless (a) the cost
thereof is less than $15,000.00, (b) such Work does not impact the base
structural components or systems of the Building, (c) such Work will not impact
any other tenant's premises, and (d) such Work is not visible from outside the
Premises. Tenant shall pay Landlord's standard charge for review of the plans
and all other items submitted by Tenant. Landlord will be deemed to be acting
reasonably in withholding its consent for any Work which (a) adversely impacts
the base structural components or systems of the Building, or (b) adversely
impacts any other tenant's premises.
Tenant shall reimburse Landlord for its reasonable costs actually incurred for
review of the plans and all other items submitted by Tenant. Tenant shall pay
for the cost of all Work. All Work shall become the property of Landlord upon
its installation, except for Tenant's trade fixtures and for items which
Landlord requires Tenant to remove at Tenant's cost at the termination of the
Lease pursuant to Sections 5D and 5E below.
The following requirements shall apply to all Work:
(1) Prior to commencement, Tenant shall furnish to Landlord building permits,
certificates of insurance satisfactory to Landlord, and with respect to Work
which is estimated to cost in excess of $100,000.00, at Landlord's request,
security for payment of all costs in such form and amount as Landlord may
reasonably request.
(2) Tenant shall perform all Work so as to maintain peace and harmony among
other contractors serving the Project and shall avoid interference with
other work to be performed or services to be rendered in the Project.
(3) The Work shall be performed in a good and workmanlike manner, meeting the
standard for construction and quality of materials in the Building, and
shall comply with all Legal Requirements.
(4) Tenant shall perform all Work so as to minimize or prevent disruption to
other tenants, and Tenant shall comply with all reasonable requests of
Landlord in response to complaints from other tenants.
<PAGE>
(5) Tenant shall perform all Work in compliance with Landlord's "Policies, Rules
and Procedures for Construction Projects" in effect at the time the Work is
performed.
(6) Tenant shall permit Landlord to supervise all Work. Landlord may charge a
supervisory fee not to exceed three percent (3%) of labor, material, and all
other costs of the Work, if Landlord's employees or contractors perform the
Work.
(7) Upon completion, Tenant shall furnish Landlord with contractor's affidavits
and full and final statutory waivers of liens, as-built plans and
specifications, and receipted bills covering all labor and materials, and
all other close-out documentation required in Landlord's "Policies, Rules
and Procedures for Construction Projects".
B. Damage to Systems. If any part of the mechanical, electrical or other systems
in the Premises shall be damaged, Tenant shall promptly notify Landlord, and
Landlord shall repair such damage. Landlord may also at any reasonable time make
any repairs or alterations which Landlord deems necessary for the safety or
protection of the Project, or which Landlord is required to make by any court or
pursuant to any Legal Requirement. Landlord shall use reasonable efforts to
cause any such work to be carried out in a manner so as not to interfere
unreasonably with the conduct of Tenant's business in the Premises; provided,
however, Landlord shall not be required to perform any such work at times other
than during ordinary business hours, except that, other than in an emergency
situation, Tenant may require any such work in the Premises to be done after
business hours if Tenant pays Landlord for overtime and any other additional
expenses incurred to perform such work after business hours. Except in the case
of an emergency, Landlord shall consult with Tenant regarding the scheduling for
such work and, subject to the preceding sentence, shall adhere to Tenant's
reasonable scheduling requests. Tenant shall at its expense make all other
repairs necessary to keep the Premises, and Tenant's fixtures and personal
property, in good order, condition and repair; to the extent Tenant fails to do
so, Landlord may make such repairs itself. The cost of any repairs made by
Landlord on account of Tenant's default, or on account of the mis-use or neglect
by Tenant or its invitees, contractors or agents anywhere in the Project, shall
become Additional Rent payable by Tenant on demand.
C. No Liens. Tenant has no authority to cause or permit any lien or encumbrance
of any kind to affect Landlord's interest in the Project; any such lien or
encumbrance shall attach to Tenant's interest, if any, only. If any lien shall
be filed or claim of lien made for work or materials furnished by or on behalf
of Tenant, then Tenant shall at its expense within ten (10) days thereafter
either discharge or contest the lien or claim. If Tenant contests the lien or
claim, then Tenant shall (i) within such ten (10) day period, provide Landlord
adequate security for the lien or claim, (ii) contest the lien or claim in good
faith by appropriate proceedings that operate to stay its enforcement, and (iii)
pay promptly any final adverse judgment entered in any such proceeding. If
Tenant does not comply with these requirements, Landlord may discharge the lien
or claim, and the amount paid, as well as attorney's fees and other expenses
incurred by Landlord, shall become Additional Rent payable by Tenant on demand.
The remedies provided herein shall be in addition to all other remedies
available to Landlord. Nothing contained in this Lease shall be construed as
constituting the consent or request of Landlord, express or implied, to, or for
the performance by, any contractor, laborer, materialman or vendor of any labor
or services or for the furnishing of any materials for any construction,
alteration, addition, repair or demolition of or to the Premises or any part
thereof. Tenant and any subtenants shall have no power to do any act or make any
contract which may create or be the foundation of any lien, mortgage or other
encumbrance upon the reversionary or other estate of Landlord, or any interest
of Landlord in the Premises. NOTICE IS HEREBY GIVEN THAT LANDLORD IS NOT AND
SHALL NOT BE LIABLE FOR ANY LABOR, SERVICES OR MATERIALS FURNISHED OR TO BE
FURNISHED TO TENANT OR TO ANYONE HOLDING THE PREMISES OR ANY PART THEREOF, AND
THAT NO MECHANICS' OR OTHER LIENS FOR ANY SUCH LABOR, SERVICES OR MATERIALS
SHALL ATTACH TO OR AFFECT THE INTEREST OF LANDLORD IN AND TO THE PREMISES OR THE
PROJECT.
D. Ownership of Improvements. All Work as defined in this Section 5, partitions,
hardware, equipment, machinery and all other improvements and all fixtures
except trade fixtures, constructed in the Premises by either Landlord or Tenant,
(i) shall become Landlord's property upon installation without compensation to
Tenant, unless
<PAGE>
Landlord consents otherwise in writing, and (ii) shall at Landlord's option
either (a) be surrendered to Landlord with the Premises at the termination of
the Lease or of Tenant's right to possession, or (b) be removed in accordance
with Subsection 5E below (unless Landlord at the time it gives its consent to
the performance of such construction expressly waives in writing the right to
require such removal, which waiver Landlord agrees shall not be unreasonably
withheld; Landlord will be deemed to be acting reasonably in withholding such
waiver if the Work adversely impacts the base structural components or systems
of the Building or if the Work, as-built, would decrease the number of rentable
square feet in the Premises). Landlord's waiver shall be deemed to have been
given on any Work that does not require Landlord's consent pursuant to
Subsection 5A above.
E. Removal at Termination. Upon the termination of this Lease or Tenant's right
of possession Tenant shall remove from the Project its trade fixtures,
furniture, moveable equipment and other personal property, any improvements
which Landlord elects shall be removed by Tenant pursuant to Section 5D, and any
improvements to any portion of the Project other than the Premises. Tenant shall
repair all damage caused by the installation or removal of any of the foregoing
items. If Tenant does not timely remove such property, then Tenant shall be
conclusively presumed to have, at Landlord's election (i) conveyed such property
to Landlord without compensation or (ii) abandoned such property, and Landlord
may dispose of or store any part thereof in any manner at Tenant's sole cost,
without waiving Landlord's right to claim from Tenant all expenses arising out
of Tenant's failure to remove the property, and without liability to Tenant or
any other person. Landlord shall have no duty to be a bailee of any such
personal property. If Landlord elects abandonment, Tenant shall pay to Landlord,
upon demand, any expenses incurred for disposition.
6 USE OF PREMISES. Tenant shall use the Premises only as a school or educational
facility, including any related activities in furtherance thereof, including
food concessions and dining facilities (but for use only by Tenant's students,
guests, and employees, and not by the general public), book stores (open only to
Tenant's students, guests, and employees, and not to the general public),
classrooms and training facilities, and for general office and administrative
office purposes, all of the foregoing uses subject always to Legal Requirements,
and no other use. Tenant shall not allow any use of the Premises which will
negatively affect the cost of coverage of Landlord's insurance on the Project.
Except as otherwise permitted pursuant to the provisions of Section 28 below,
Tenant shall not allow any inflammable or explosive liquids or materials to be
kept on the Premises. Tenant shall not allow any use of the Premises which would
cause the value or utility of any part of the Premises to diminish or would
interfere with any other tenant or with the operation of the Project by
Landlord. Tenant shall not permit any nuisance or waste upon the Premises, or
allow any offensive noise or odor in or around the Premises.
Pursuant to the provisions of Special Stipulation 31 of Appendix F to this
Lease, Appendix C, and Appendix J, Landlord is required to complete the Base
Building and Parking Deck in compliance with Legal Requirements, including the
Americans with Disabilities Act as it applies to the Base Building (but not as
to the Initial Improvements), taking into account in the Base Building design
that the Premises will be a "place of public accommodation" under the Americans
with Disabilities Act. The allocation between Landlord and Tenant of the cost to
construct the Base Building is set forth in Appendixes C and J. Provided that
Landlord has complied with such obligation with respect to the Base Building and
Parking Deck, if any governmental authority shall deem the Premises to be a
"place of public accommodation" under the Americans with Disabilities Act or any
other comparable law as a result of Tenant's use, Tenant shall either modify its
use to cause such authority to rescind its designation or be responsible for any
alterations, structural or otherwise, required to be made to the Building or the
Premises under such laws.
7 LEGAL REQUIREMENTS AND BUILDING RULES. Tenant shall comply with all Legal
Requirements applying to its use of the Premises. Tenant shall also comply with
all reasonable rules established for the Project from time to time by Landlord;
provided, however, Tenant shall not be bound by any new rule or regulation if
the same (i) is in conflict with or inconsistent with any of the provisions of
this Lease, or (ii) unreasonably and adversely diminishes, limits or restricts
Tenant's rights, powers or privileges under this Lease. The present rules and
regulations are contained in Appendix B. Landlord agrees that the rules and
regulations will not be enforced against Tenant in a discriminatory manner.
Whenever the rules and regulations conflict with the provisions of the body of
this Lease, the provisions of the Lease shall govern. Failure by another tenant
to comply
<PAGE>
with the rules or failure by Landlord to enforce them shall not relieve Tenant
of its obligation to comply with the rules or make Landlord responsible to
Tenant in any way. Landlord shall use reasonable efforts to apply the rules and
regulations uniformly with respect to Tenant and tenants in the Building under
leases containing rules and regulations similar to this Lease. In the event of
alterations and repairs performed by Tenant, Tenant shall comply with the
provisions of Section 5 of this Lease and also Landlord's "Policies, Rules and
Regulations for Construction Projects".
8 WAIVER OF CLAIMS; INDEMNIFICATION; INSURANCE.
A. Waiver of Claims. To the extent permitted by law, Tenant waives any claims it
may have against Landlord or its officers, directors, employees or agents for
business interruption or damage to property sustained by Tenant as the result of
any act or omission of Landlord.
To the extent permitted by law, Landlord waives any claims it may have against
Tenant or its officers, directors, employees or agents for loss of rents (other
than Rent) or damage to property sustained by Landlord as the result of any act
or omission of Tenant.
B. Indemnification. Subject to Subsection 8A, Tenant shall indemnify, defend and
hold harmless Landlord and its officers, directors, employees and agents against
any claim by any third party for injury to any person or damage to or loss of
any property occurring in the Project and arising from the use of the Premises
(unless caused by the willful misconduct, gross negligence or negligence of
Landlord or its agents, contractors or employees acting within the scope of
their authority or employment) or from any other act or omission or negligence
of Tenant or any of Tenant's employees or agents. Tenant's obligations under
this section shall survive the termination of this Lease.
Subject to Subsection 8A, Landlord shall indemnify, defend and hold harmless
Tenant and its officers, directors, employees and agents against any claim by
any third party for injury to any person or damage to or loss of any property
occurring in the Project and arising from any act or omission or negligence of
Landlord or any of Landlord's employees or agents. Landlord's obligations under
this section shall survive the termination of this Lease.
C. Tenant's Insurance. Tenant shall maintain insurance as follows, with such
other terms, coverages and insurers, as Landlord shall reasonably require from
time to time:
(1) Commercial General Liability Insurance, with (a) Contractual Liability
including the indemnification provisions contained in this Lease, (b) a
severability of interest endorsement, (c) limits of not less than Two Million
Dollars ($2,000,000) combined single limit per occurrence and not less than Two
Million Dollars ($2,000,000) in the aggregate for bodily injury, sickness or
death, and property damage, and umbrella coverage of not less than Five Million
Dollars ($5,000,000).
(2) Property Insurance against "All Risks" of physical loss covering the
replacement cost of all improvements, fixtures and personal property. Tenant
waives all rights of subrogation, and Tenant's property insurance shall include
a waiver of subrogation in favor of Landlord.
(3) Workers' compensation or similar insurance in form and amounts required by
law, and Employer's Liability with not less than the following limits:
<TABLE>
<S> <C>
Each Accident $500,000
Disease--Policy Limit $500,000
Disease--Each Employee $500,000
</TABLE>
Such workers' compensation or similar insurance shall contain, if available in
the market, a waiver of subrogation provision in favor of Landlord and its
agents.
<PAGE>
Tenant's insurance shall be primary and not contributory to that carried by
Landlord, its agents, or mortgagee. Landlord, and if any, Landlord's building
manager or agent and ground lessor shall be named as additional insureds as
respects to insurance required of the Tenant in Section 8C(1). The company or
companies writing any insurance which Tenant is required to maintain under this
Lease, as well as the form of such insurance, shall at all times be subject to
Landlord's approval (which approval shall not be unreasonably withheld), and any
such company shall be licensed to do business in the state in which the Building
is located. Such insurance companies shall have a A.M. Best rating of A VI or
better.
Tenant shall cause any contractor of Tenant performing work on the Premises to
maintain insurance as follows, with such other terms, coverages and insurers, as
Landlord shall reasonably require from time to time:
(1) Commercial General Liability Insurance, including contractor's liability
coverage, contractual liability coverage, completed operations coverage, broad
form property damage endorsement, and contractor's protective liability
coverage, to afford protection with limits, for each occurrence, of not less
than One Million Dollars ($1,000,000) with respect to personal injury, death or
property damage.
(2) Workers' compensation or similar insurance in form and amounts required by
law, and Employer's Liability with not less than the following limits:
<TABLE>
<S> <C>
Each Accident $500,000
Disease--Policy Limit $500,000
Disease--Each Employee $500,000
</TABLE>
Such workers' compensation or similar insurance shall contain, if available in
the market, a waiver of subrogation provision in favor of Landlord and its
agents.
Tenant's contractor's insurance shall be primary and not contributory to that
carried by Tenant, Landlord, their agents or mortgagees. Tenant and Landlord,
and if any, Landlord's building manager or agent, mortgagee or ground lessor
shall be named as additional insured on Tenant's contractor's insurance
policies.
D. Insurance Certificates. Tenant shall deliver to Landlord certificates
evidencing all required insurance no later than five (5) days prior to the
Commencement Date and each renewal date. Landlord shall deliver to Tenant
certificates evidencing all insurance required of Landlord no later than five
(5) days prior to the Commencement Date and each renewal date. Each certificate
will provide for thirty (30) days prior written notice of cancellation to
Landlord and Tenant.
E. Landlord's Insurance. Landlord shall maintain "All-Risk" property insurance
at replacement cost, including loss of rents, on the Building, and Commercial
General Liability insurance policies covering the common areas of the Building,
each with such terms, coverages and conditions as are normally carried by
reasonably prudent owners of properties similar to the Project, including with
annual deductibles not to exceed reasonable deductibles.
F. Waiver of Subrogation. With respect to property insurance, Landlord and
Tenant mutually waive all rights of subrogation, and the respective "All-Risk"
coverage property insurance policies carried by Landlord and Tenant shall
contain enforceable waiver of subrogation endorsements.
9 FIRE AND OTHER CASUALTY.
A. Termination. If a fire or other casualty causes substantial damage to the
Project or the Premises, Landlord shall engage a registered and responsible
architect to certify within one (1) month of the casualty to both Landlord and
Tenant the amount of time needed to restore the Project and the Premises to
tenantability, using standard working methods (the "Restoration Period"). The
Restoration Period determined by the architect selected by Landlord shall be
binding on Landlord and Tenant. If the Restoration Period exceeds (i) twelve
(12) months from the beginning of the restoration, or (ii) two (2) months
therefrom if the restoration would begin during the last
<PAGE>
twelve (12) months of the Lease, then either Landlord or Tenant may terminate
this Lease by notice to the other party within ten (10) days after the notifying
party's receipt of the architect's certificate; provided, however, that Tenant
shall have the right to nullify any such notice of termination given by Landlord
pursuant to an event in clause (ii) above if at the time such notice is given an
option to extend the Term of this Lease for a Renewal Term pursuant to Section
32 remains unexercised and Tenant shall irrevocably exercise such extension
option by giving both the non-binding and binding notices contemplated by
Section 32 within ten (10) days after the receipt of such notice from Landlord,
in which event Landlord's notice of such termination shall be of no force or
effect. The termination shall be effective thirty (30) days from the date of the
notice and Rent shall be paid by Tenant to that date, with an abatement for any
portion of the Premises which has been untenantable after the casualty.
B. Restoration. If a casualty causes damage to the Project or the Premises but
this Lease is not terminated for any reason, then subject to the rights of any
mortgagees or ground lessors, Landlord shall obtain the applicable insurance
proceeds and diligently restore the Project and the Premises subject to current
Legal Requirements. Tenant shall replace its damaged improvements, personal
property and fixtures. Rent shall be abated on a per diem basis during the
restoration for any portion of the Premises which is untenantable, except that,
to the extent the loss of Rent is not covered and paid by insurance carried by
Landlord, such Rent shall not be abated if the casualty results from the
negligence or willful misconduct of Tenant, or its employees or agents. If
Landlord is required under this Section 9 to repair and rebuild the Project or
Premises and for any reason whatsoever other than and to the extent of delays
actually caused by Tenant (including Tenant Delay, as such term is defined in
Appendix C), fails to commence to repair and rebuild the damaged portion of the
Building or Premises to the extent required of Landlord hereunder following
damage or destruction within ninety (90) days after the date when such damage or
destruction occurred (subject to extension for the period of any delays
resulting from causes beyond the reasonable control of Landlord, including
Tenant Delay), Tenant shall have the right to cancel and terminate this Lease
upon delivery of notice to Landlord delivered not more than twenty (20) days
after the expiration of such ninety (90) day period, as same may be extended for
delays resulting from causes beyond the reasonable control of Landlord, and,
further, if Landlord does not substantially complete such repairs and
restoration within the Restoration Period (subject to extension for the period
of any delays resulting from causes beyond the reasonable control of Landlord,
including Tenant Delay) or if after commencing such repairs or restoration
Landlord permanently abandons the repair or restoration work, Tenant shall have
the right to cancel and terminate this Lease upon delivery of notice to Landlord
delivered not more than ninety (90) days after the expiration of such
Restoration Period, as same may be extended for delays resulting from causes
beyond the reasonable control of Landlord. Upon any such notice of termination
being given by Tenant in accordance with the terms of this Subsection 9B, the
Term of this Lease shall automatically terminate and end effective as of the
date designated in such notice (but in no event later than thirty (30) days
after the date of such notice), such termination right being Tenant's sole and
exclusive remedy hereunder (other than the abatement of Base Rent provided in
this Subsection 9B) for such failure to commence or complete such repair or
restoration work; provided, however, if Landlord is required under this Section
9 to repair and rebuild the Building or Premises and for any reason whatsoever
other than and to the extent of delays actually caused by Tenant (including
Tenant Delay), (i) Landlord fails to commence to repair and rebuild the damaged
portion of the Building or Premises to the extent required of Landlord hereunder
following damage or destruction within ninety (90) days after the date when such
damage or destruction occurred (subject to extension for the period of any
delays resulting from causes beyond the reasonable control of Landlord,
including Tenant Delay), or (ii) the repair or restoration work is permanently
abandoned by Landlord, or (iii) Landlord does not substantially complete such
repairs and restoration within the Restoration Period after the date of the
casualty (subject to extension for the period of any delays resulting from
causes beyond the reasonable control of Landlord, including Tenant Delay), then
Tenant shall also be entitled to the equitable remedy of seeking specific
performance of Landlord's obligations under this Section 9 and/or a suit at law
for actual damages (but not consequential, indirect or special damages) suffered
or incurred by Tenant as a result thereof. Tenant expressly waives the right of
self-help for any breach by Landlord of its obligations under this Section 9.
10 EMINENT DOMAIN. If a part of the Project is taken by eminent domain or deed
in lieu thereof which is so substantial that the Premises cannot reasonably be
used by Tenant for the operation of its business, then either party may
terminate this Lease effective as of the date of the taking. Landlord and Tenant
agree that if Tenant is leasing and occupying the entire Building prior to any
such taking, then a loss of ten percent (10%) or more of
<PAGE>
Tenant's parking spaces in connection with such taking shall be deemed to be a
"substantial" taking which gives Tenant the right to terminate this Lease
pursuant to the provisions of the preceding sentence; provided, however, Tenant
shall not have the right to terminate this Lease in such event if Landlord shall
provide replacement parking spaces to Tenant in the portion of the parking
facilities in the Development which are closest in proximity to the Building. If
any substantial portion of the Project is taken without affecting the Premises,
then Landlord may terminate this Lease as of the date of such taking. Rent shall
be reduced from the date of the taking to such extent, if any, as may be fair
and reasonable under all of the circumstances. The entire award for a taking of
any kind shall be paid to Landlord, and Tenant shall have no right to share in
the award; provided, however, nothing herein shall be construed to preclude
Tenant from prosecuting any claim directly against the condemning authority for
(1) loss of business, (2) damage to, and cost of removal of, trade fixtures,
furniture and other personal property belonging to Tenant, (3) the unamortized
cost of leasehold improvements to the extent same were installed at Tenant's
expense and to the extent such costs were not reimbursed or contributed to by
Landlord, and (4) the cost of moving, provided that no such claim shall diminish
or adversely affect Landlord's award. All obligations accrued to the date of the
taking shall be performed by the party liable to perform said obligations, as
set forth herein. Notwithstanding anything to the contrary contained in this
Section 10, if, during the Term, the use or occupancy of any part of the Project
or the Premises shall be taken or appropriated temporarily for any public or
quasi-public use under any governmental law, ordinance or regulation, 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 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
Premises during the 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 Premises after the end of the Term. In the event
of any such condemnation or taking and this Lease is not terminated pursuant to
the provisions of this Section 10, Landlord shall promptly repair the Premises
or the Project, as the case may be, to Building standard condition (with
Landlord's Contribution as provided in Appendix C, without any supplement
thereto) so that the remaining portion of the Premises, or the Project, as the
case may be, shall constitute an architectural unit, fit for Tenant's occupancy
and business; provided, however, that Landlord's obligation to repair hereunder
shall be limited to the extent of the net proceeds made available to Landlord
for such repair from any such condemnation or taking.
11 RIGHTS RESERVED TO LANDLORD.
Landlord may exercise at any time any of the following rights respecting the
operation of the Project without liability to the Tenant of any kind:
A. Name. To change the name or street address of the Building or the suite
number(s) of the Premises. Except in the case of a change in the street address
of the Building required by any Governmental Authority upon less than six (6)
months notice to Landlord by the Governmental Authority, if Landlord changes the
name or street address of the Building or the suite number(s) of the Premises
upon less than six (6) months prior notice to Tenant, then Landlord shall
reimburse Tenant for the reasonable costs actually incurred by Tenant to replace
its then in-stock stationary and marketing brochures to reflect such change.
B. Signs. Subject to the provisions of Special Stipulations 33, 34 and 35 in
Appendix F, to install and maintain any signs on the exterior and in the
interior of the Building (but the signs on the interior of the Building shall be
limited to signs required by Legal Requirements and other signs which are
reasonably required in connection with the management of the Project), and to
approve at its sole discretion, prior to installation, any of Tenant's signs in
the Premises visible from the exterior of the Building. Notwithstanding the
foregoing to the contrary, from and after the date, if ever, that Tenant does
not lease all of the rentable area in the Building, Landlord shall have the
right, subject to the provisions of Special Stipulations 33, 34 and 35 in
Appendix F, to install and maintain any signs on the exterior and in the
interior of the Building, and to approve at its sole discretion, prior to
installation, any of Tenant's signs in the Premises visible from the common
areas or the exterior of the Building.
C. Window Treatments. To approve (which approval shall not be unreasonably
withheld), prior to installation, any shades, blinds, ventilators or window
treatments of any kind, as well as any lighting within the
<PAGE>
Premises that may be visible from the exterior of the Building or any interior
common area.
D. Keys. To retain and use at any time passkeys to enter the Premises or any
door within the Premises (except for doors to Secure Areas designated by Tenant
if Landlord is not required by law to have keys to such Secure Areas). Tenant
shall not alter or add any lock or bolt without the prior written consent of
Landlord, which consent shall not be unreasonably withheld. Notwithstanding the
foregoing, subject to the provisions below, Tenant shall be permitted to install
locks or other access control devices for high security areas in the Premises
(such areas designated by Tenant in writing to Landlord are herein referred to
as the "Secured Areas"), and Tenant shall not be required to furnish Landlord
with a duplicate set of keys or access control devices to the Secured Areas, and
Landlord shall not be permitted to enter the Secured Areas (i) unless with the
prior written consent of Tenant, which consent Tenant shall not unreasonably
withhold or delay, or (ii) except in the case of an emergency. The Secured Areas
shall not constitute more than fifteen percent (15%) of the total leasable area
of the Premises and shall not eliminate access to the portion of the Premises
which is not a Secured Area. Landlord shall not be required to perform any
service to any Secured Area to which Landlord does not have access and for which
access is necessary for the provision of such service.
E. Access. Upon prior reasonable notice (except in instances reasonably and in
good faith deemed an emergency by Landlord or its agents or employees under all
of the known facts and circumstances), to have access to inspect the Premises,
and to perform its obligations, or make repairs, alterations, additions or
improvements, as permitted by this Lease. Landlord shall use reasonable efforts
to cause any such inspections and work to be carried out in a manner so as not
to interfere unreasonably with the conduct of Tenant's business in the Premises;
provided, however, Landlord shall not be required to perform any such
inspections or work at times other than during ordinary business hours, except
that, other than in an emergency situation, Tenant may require any such work in
the Premises to be done after business hours if Tenant pays Landlord for
overtime and any other additional expenses incurred to perform such work after
business hours. Except in the case of an emergency, Landlord shall consult with
Tenant regarding the scheduling for such work and, subject to the preceding
sentence, shall adhere to Tenant's reasonable scheduling requests.
F. Preparation for Reoccupancy. To decorate, remodel, repair, alter or otherwise
prepare the Premises for reoccupancy at any time after Tenant abandons the
Premises, without relieving Tenant of any obligation to pay Rent.
G. Heavy Articles. To approve the weight, size, placement and time and manner of
movement within the Building of any safe, central filing system or other heavy
article of Tenant's property. Tenant shall move its property entirely at its own
risk.
H. Show Premises. To show the Premises to prospective purchasers, tenants (but
only during the last 12 months of the Term of this Lease and at any time Tenant
is in default hereunder after any applicable notice and cure period), brokers
(but only during the last 12 months of the Term of this Lease and at any time
Tenant is in default hereunder after any applicable notice and cure period),
lenders, investors, rating agencies or others at any reasonable time, provided
that Landlord gives reasonable prior notice to Tenant and does not materially
interfere with Tenant's use of the Premises.
I. [Intentionally Omitted.]
J. Use of Lockbox. To designate a lockbox collection agent for collections of
amounts due Landlord. In that case, the date of payment of Rent or other sums
shall be the date of the agent's receipt of such payment or the date of actual
collection if payment is made in the form of a negotiable instrument thereafter
dishonored upon presentment. However, Landlord may reject any payment for all
purposes as of the date of receipt or actual collection by mailing to Tenant
within 21 days after such receipt or collection a check equal to the amount sent
by Tenant.
K. Repairs and Alterations. To make repairs or alterations to the Project and in
doing so transport any
<PAGE>
required material through the Premises, to close entrances, doors, corridors,
elevators and other facilities in the Project, to open any ceiling in the
Premises, or to temporarily suspend services or use of common areas in the
Building. Landlord shall use reasonable efforts to cause any such repairs or
alterations to be carried out in a manner so as not to interfere unreasonably
with the conduct of Tenant's business in the Premises and Landlord may perform
any such repairs or alterations during ordinary business hours, except that,
other than in an emergency situation, Tenant may require any work in the
Premises to be done after business hours if Tenant pays Landlord for overtime
and any other additional expenses incurred to perform such work after business
hours. Except in the case of an emergency, Landlord shall consult with Tenant
regarding the scheduling for such work and, subject to the preceding sentence,
shall adhere to Tenant's reasonable scheduling requests. Landlord may do or
permit any work on any nearby building, land, street, alley or way; in
connection therewith, Landlord shall use reasonable efforts to cause any such
work to be carried out in a manner so as not to interfere unreasonably with the
conduct of Tenant's business in the Premises and Landlord may perform any such
work during ordinary business hours.
L. Landlord's Agents. If Tenant is in default under this Lease, possession of
Tenant's funds or negotiation of Tenant's negotiable instrument by any of
Landlord's agents shall not waive any breach by Tenant or any remedies of
Landlord under this Lease.
M. Building Services. To install, use and maintain through the Premises, pipes,
conduits, wires and ducts serving the Building, provided that such installation,
use and maintenance does not unreasonably interfere with Tenant's use of the
Premises.
N. Other Actions. To take any other action which Landlord deems reasonable in
connection with the operation, maintenance or preservation of the Building.
12. TENANT'S DEFAULT.
Any of the following shall constitute a default by Tenant:
A. Rent Default. Tenant fails to pay any Rent when due and such failure
continues for five (5) days from the date such payment was due, and such failure
shall continue for an additional five (5) days after written notice of such
failure of payment; provided, however, such notice and such additional five (5)
day cure period shall be required to be provided by Landlord and shall be
accorded Tenant, if necessary, only two (2) times during any consecutive twelve
(12) month period;
B. Assignment/Sublease or Hazardous Substances Default. Tenant defaults in its
obligations under Section 17 Assignment and Sublease or Section 28 Hazardous
Substances, and in either case such default continues for five (5) days after
written notice from Landlord, or such lesser period as is reasonably necessary
to complete the cure;
C. Other Performance Default. Tenant fails to perform any other obligation to
Landlord under this Lease, and, in the case of only the first two (2) such
failures during any consecutive twelve (12) month period, this failure continues
for ten (10) days after written notice from Landlord, except that if Tenant
begins to cure its failure within the ten (10) day period but cannot reasonably
complete its cure within such period, then, so long as Tenant continues to
diligently attempt to cure its failure, the ten (10) day period shall be
extended to ninety (90) days, or such lesser period as is reasonably necessary
to complete the cure, and, in the case of the third (3rd) or more such failures
during the same consecutive twelve (12) month period, this failure continues for
two (2) days after written notice from Landlord, except that if Tenant begins to
cure its failure within the two (2) day period but cannot reasonably complete
its cure within such period, then, so long as Tenant continues to diligently
attempt to cure its failure, the two (2) day period shall be extended to ninety
(90) days, or such lesser period as is reasonably necessary to complete the
cure;
D. Credit Default. One of the following credit defaults occurs:
(5) Tenant commences any proceeding under any law relating to bankruptcy,
insolvency, reorganization or
<PAGE>
relief of debts, or seeks appointment of a receiver, trustee, custodian or other
similar official for the Tenant or for any substantial part of its property, or
any such proceeding is commenced against Tenant and either remains undismissed
for a period of sixty (60) days or results in the entry of an order for relief
against Tenant which is not fully stayed within seven days after entry;
(6) Tenant becomes insolvent or bankrupt, does not generally pay its debts as
they become due, or admits in writing its inability to pay its debts, or makes a
general assignment for the benefit of creditors;
(7) Any third party obtains a levy or attachment under process of law against
Tenant's leasehold interest.
13. LANDLORD REMEDIES.
A. Termination of Lease or Possession. If Tenant defaults, Landlord may elect by
notice to Tenant either to terminate this Lease or to terminate Tenant's
possession of the Premises without terminating this Lease. In either case,
Tenant shall immediately vacate the Premises and deliver possession to Landlord,
and Landlord may repossess the Premises and may, at Tenant's sole cost, remove
any of Tenant's signs and any of its other property, without relinquishing its
right to receive Rent or any other right against Tenant.
B. Lease Termination Damages. If Landlord terminates the Lease, Tenant shall pay
to Landlord all Rent due on or before the date of termination, plus Landlord's
reasonable estimate of the aggregate Rent that would have been payable from the
date of termination through the Termination Date, reduced by the rental value of
the Premises calculated as of the date of termination for the same period,
taking into account anticipated vacancy prior to reletting, reletting expenses
and market concessions, both discounted to present value at the rate of five
percent (5%) per annum. If Landlord shall relet to a third party in a bona fide
arms length transaction any part of the Premises for any part of such period
before such present value amount shall have been paid by Tenant or finally
determined by a court, then the amount of Rent payable pursuant to such
reletting (taking into account vacancy prior to reletting and reletting expenses
or concessions) shall be deemed prima facie to be the reasonable rental value
for that portion of the Premises relet during the period of the reletting, and
Tenant shall have the burden to prove that the amount of Rent payable pursuant
to such reletting (taking into account vacancy prior to reletting and reletting
expenses or concessions) is not the reasonable rental value for that portion of
the Premises relet during the period of the reletting.
C. Possession Termination Damages. If Landlord terminates Tenant's right to
possession without terminating this Lease and Landlord takes possession of the
Premises itself (it being agreed that Landlord may do so without thereby
releasing Tenant from any liability hereunder), Landlord may relet any part of
the Premises for such Rent, for such time, and upon such terms as Landlord in
its sole discretion shall determine, without any obligation to do so prior to
renting other vacant areas in the Building. Any proceeds from reletting the
Premises shall first be applied to the expenses of reletting, including
redecoration, repair, alteration, advertising, brokerage, legal, and other
reasonably necessary expenses. If the reletting proceeds after payment of
expenses are insufficient to pay the full amount of Rent under this Lease,
Tenant shall pay such deficiency to Landlord monthly upon demand as it becomes
due. Any excess proceeds shall be retained by Landlord.
D. Landlord's Remedies Cumulative. All of Landlord's remedies under this Lease
shall be in addition to all other remedies Landlord may have at law or in
equity. Waiver by Landlord of any breach of any obligation by Tenant shall be
effective only if it is in writing, and shall not be deemed a waiver of any
other breach, or any subsequent breach of the same obligation. Landlord's
acceptance of payment by Tenant shall not constitute a waiver of any breach by
Tenant, and if the acceptance occurs after Landlord's notice to Tenant, or
termination of the Lease or of Tenant's right to possession, the acceptance
shall not affect such notice or termination. Acceptance of payment by Landlord
after commencement of a legal proceeding or final judgment shall not affect such
proceeding or judgment. Landlord may advance such monies and take such other
actions for Tenant's account as reasonably may be required to cure or mitigate
any default by Tenant. Tenant shall immediately reimburse Landlord for any such
advance, and such sums shall bear interest at the default interest rate until
paid.
<PAGE>
E. WAIVER OF TRIAL BY JURY. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY
WAIVES TRIAL BY JURY IN THE EVENT OF ANY LEGAL PROCEEDING BROUGHT BY THE OTHER
IN CONNECTION WITH THIS LEASE. EACH PARTY SHALL BRING ANY ACTION AGAINST THE
OTHER IN CONNECTION WITH THIS LEASE IN A FEDERAL OR STATE COURT LOCATED IN
FULTON COUNTY, GEORGIA, CONSENTS TO THE JURISDICTION OF SUCH COURTS, AND WAIVES
ANY RIGHT TO HAVE ANY PROCEEDING TRANSFERRED FROM SUCH COURTS ON THE GROUND OF
IMPROPER VENUE OR INCONVENIENT FORUM.
F. Litigation Costs. In the event either party places the enforcement of this
Lease, or any part thereof, or the collection of any Rent due, or to become due
hereunder, or recovery of the possession of the Premises in the hands of an
attorney, or files suit upon the same, the non-prevailing (or defaulting) party
shall pay the prevailing party's reasonable attorneys' fees and court costs,
including, without limitation, the costs of any special master.
14. SURRENDER. Upon termination of this Lease or Tenant's right to possession,
Tenant shall return the Premises to Landlord in good order and condition,
ordinary wear and casualty damage excepted. If Landlord requires Tenant to
remove any alterations pursuant to the provisions of Subsection 5E above, then
Tenant shall remove the alterations in a good and workmanlike manner and restore
the Premises to its condition prior to their installation.
15. HOLDOVER. Tenant shall have no right to holdover possession of the Premises
after the expiration or termination of this Lease without Landlord's prior
written consent, which consent may be withheld in Landlord's sole and absolute
discretion. If Tenant retains possession of any part of the Premises after the
end of the Term, Tenant shall become a month-to-month tenant for the entire
Premises upon all of the terms of this Lease as might be applicable to such
month-to-month tenancy, except that (i) with respect to any holdover of any
portion of the Premises during the initial 30 days after the end of the Term,
Tenant shall pay all of Base Rent and Operating Cost Share Rent at 115% of the
rate in effect immediately prior to such holdover, computed on a monthly basis
for each full or partial month Tenant remains in possession, (ii) with respect
to any holdover thereafter, Tenant shall pay all of Base Rent and Operating Cost
Share Rent at 125% of the rate in effect immediately prior to such holdover,
computed on a monthly basis for each full or partial month Tenant remains in
possession, and (iii) notwithstanding the notice provision of O.C.G.A. Section
44-7-7, as the same may be now or hereafter amended, Tenant expressly agrees
that any such tenancy may be terminated by ten (10) days prior written notice by
Landlord to Tenant. If Tenant retains possession of any part of the Premises for
more than 60 days after the end of the Term without Landlord express written
consent given to Tenant at any time after the full execution of this Lease,
Tenant shall also pay Landlord all of Landlord's direct damages and
consequential damages resulting from Tenant's holdover beyond the end of the
Term (and not just Landlord's direct damages and consequential damages resulting
from Tenant's holdover for more than 60 days after the end of the Term). No
acceptance of Rent or other payments by Landlord under these holdover provisions
shall operate as a waiver of Landlord's right to regain possession or any other
of Landlord's remedies. The inclusion of the foregoing provisions shall not be
construed as Landlord's consent for Tenant to hold over.
16. SUBORDINATION TO GROUND LEASES AND MORTGAGES.
A. Subordination. Subject to the provisions of Special Stipulation 43 of
Appendix F of this Lease, this Lease shall be subordinate to any present or
future ground lease or mortgage respecting the Project, to all advances made or
hereafter to be made upon the security of such ground lease or mortgage, to all
amendments, modifications, renewals, consolidations, extensions and restatements
of such ground lease or mortgage, and to any replacements and substitutions for
such ground lease or mortgage, at the election of the ground lessor or mortgagee
as the case may be, effected by notice to Tenant in the manner provided in this
Lease. The subordination shall be effective upon such notice, but at the request
of Landlord or ground lessor or mortgagee, Tenant shall within ten (10) days of
the request, execute and deliver to the requesting party any reasonable
documents provided to evidence the subordination. Any mortgagee has the right,
at its option, to subordinate its mortgage to the terms of this Lease, without
notice to, nor the consent of, Tenant.
<PAGE>
B. Termination of Ground Lease or Foreclosure of Mortgage. Subject to the
provisions of Special Stipulation 43 of Appendix F of this Lease, if any ground
lease is terminated or mortgage foreclosed or deed in lieu of foreclosure given,
or in the event of exercise of the power of sale under any mortgage, and the
ground lessor, mortgagee, or purchaser at a foreclosure sale shall thereby
become the owner of the Project, Tenant shall, at the option of the ground
lessor, mortgagee or purchaser, attorn to such ground lessor or mortgagee or
purchaser without any deduction or setoff by Tenant, and in such event this
Lease shall continue in effect as a direct lease between Tenant and such ground
lessor, mortgagee or purchaser. The ground lessor or mortgagee or purchaser
shall be liable as Landlord only during the time such ground lessor or mortgagee
or purchaser is the owner of the Project. At the request of Landlord, ground
lessor or mortgagee, Tenant shall execute and deliver within ten (10) days of
the request any document furnished by the requesting party to evidence Tenant's
agreement to attorn.
C. Security Deposit. Any ground lessor or mortgagee shall be responsible for the
return of any security deposit by Tenant only to the extent the security deposit
is received by such ground lessor or mortgagee.
D. Notice and Right to Cure. As of the date of this Lease, the Project is not
subject to any ground lease or mortgage. Tenant agrees to send by registered or
certified mail to any ground lessor or mortgagee identified in any notice from
Landlord to Tenant a copy of any notice of default sent by Tenant to Landlord.
If Landlord fails to cure such default within the required time period under
this Lease, but ground lessor or mortgagee begins to cure within ten (10) days
after such period and proceeds diligently to complete such cure, then ground
lessor or mortgagee shall have such additional time as is necessary to complete
such cure, including any time necessary to obtain possession if possession is
necessary to cure, and Tenant shall not begin to enforce its remedies so long as
the cure is being diligently pursued. To the extent the immediately preceding
sentence conflicts with or is inconsistent with the notice and cure rights set
forth in any non-disturbance agreement entered into as provided in Section 43 of
this Lease, the notice and cure rights set forth in any such non-disturbance
shall control.
E. Definitions. As used in this Section 16, (i) "mortgage" shall include "deed
of trust," "deed to secure debt," and/or "trust deed" and "mortgagee" shall
include "beneficiary," "grantee," and/or "trustee", "mortgagee" shall include
the mortgagee of any ground lessee, and "ground lessor", "mortgagee", and
"purchaser at a foreclosure sale" shall include, in each case, all of its
successors and assigns, however remote.
17. ASSIGNMENT AND SUBLEASE.
A. In General. Except as otherwise expressly and specifically provided in
Subsection 17B(b) below, Tenant shall not, without the prior consent of Landlord
in each case, (i) make or allow any assignment or transfer, by operation of law
or otherwise, of any part of Tenant's interest in this Lease, (ii) grant or
allow any lien or encumbrance, by operation of law or otherwise, upon any part
of Tenant's interest in this Lease, (iii) sublet any part of the Premises, or
(iv) permit anyone other than Tenant and its employees to occupy any part of the
Premises. Tenant shall remain primarily liable for all of its obligations under
this Lease, notwithstanding any assignment or transfer. No consent granted by
Landlord shall be deemed to be a consent to any subsequent assignment or
transfer, lien or encumbrance, sublease or occupancy. Tenant shall pay all of
Landlord's reasonable attorneys' fees and other expenses actually incurred in
connection with any consent requested by Tenant or in reviewing any proposed
assignment or subletting, not to exceed $5,000.00 per request or review. Any
assignment or transfer, grant of lien or encumbrance, or sublease or occupancy
without Landlord's prior written consent shall be void. If Tenant shall assign
this Lease to any person or entity which is not an Affiliate (as such term is
defined in Subsection 17B(b) below) of Tenant, then any rights of Tenant to
renew this Lease or to extend the Term or to lease additional space in the
Development shall be extinguished thereby and will not be transferred to the
assignee, all such rights being personal to the Tenant named herein. If Tenant
shall sublet the Premises or any portion thereof to any person or entity which
is not an Affiliate of Tenant, then any rights of Tenant to lease additional
space in the Development shall be extinguished thereby and will not be
transferred to the subtenant, all such rights being personal to the Tenant named
herein. Except as otherwise expressly provided in Special Stipulation 34(D) of
Appendix F of this Lease, if Tenant shall sublet the Premises or any portion
thereof to any person or entity which is not an Affiliate of Tenant, then any
rights of Tenant to renew this Lease or to extend the Term shall be extinguished
thereby and will not be transferred to the subtenant, all such rights being
personal to the Tenant named herein.
<PAGE>
B. Landlord's Consent for Non-Affiliates; No Consent for Affiliates.
(a) Landlord will not unreasonably withhold, delay or condition its consent to
any proposed assignment or subletting. It shall be reasonable for Landlord to
withhold its consent to any assignment or sublease if (i) Tenant is in default
under this Lease beyond any applicable notice and cure period, (ii) the proposed
assignee or sublessee is a tenant in the Development and Landlord can
accommodate such tenant's space needs in the Development, (iii) the financial
responsibility, nature of business, and character of the proposed assignee or
subtenant are not all reasonably satisfactory to Landlord, it being agreed that
the net worth and credit rating of Tenant shall be taken into account by
Landlord in its review of the financial responsibility of the proposed assignee
or subtenant, (iv) in the reasonable judgment of Landlord the purpose for which
the assignee or subtenant intends to use the Premises (or a portion thereof) is
not in keeping with Landlord's standards for the Building or are in violation of
the terms of this Lease or any other leases in the Project, or (v) the proposed
assignment (as opposed to a sublease) is for less than the entire Premises or
for less than the remaining Term of the Lease. The foregoing shall not exclude
any other reasonable basis for Landlord to withhold its consent. Landlord will
grant its consent to Tenant allowing its vendors, concessionaires and business
partners (collectively, "Tenant's Business Associates") to use any portion or
portions of the Premises which, together with any previously sublet or licensed
portions of the Premises to Tenant's Business Associates, shall not exceed, in
the aggregate, thirty percent (30%) of the rentable square feet of the Premises,
as of the date of such subleasing/license, provided that the terms and
conditions of this Section 17 shall be applicable to any such sublease or
license, and further provided, that such use by Tenant's Business Associates
shall not affect Tenant's express rights under the Special Stipulations annexed
hereto as Appendix F to renew this Lease or to extend the Term or to lease
additional space in the Development or to maintain signage or to exercise the
right of first offer to purchase the Land and Building, such use to be treated
as a sublease by an Affiliate of Tenant for purposes of said Appendix F as the
provisions thereof relate to such express rights of Tenant thereunder.
(b) Provided Tenant is not in default under this Lease beyond any applicable
notice and cure period, and subject to the terms and conditions contained
herein, Tenant shall have the right, upon at least five (5) days' prior written
notice to Landlord, to assign this Lease or to sublet the Premises to an
Affiliate (as hereinafter defined) having a demonstrated net worth determined in
accordance with generally accepted accounting principles and credit rating which
is equal to or greater than the demonstrated net worth determined in accordance
with generally accepted accounting principles and credit rating of Tenant on the
date of execution hereof (or, if then greater, on the date of such proposed
transfer), without Landlord's consent; provided, however, such net worth test
and credit rating test shall not be applicable with respect to any subletting of
all or any portion of the Premises to an Affiliate of Tenant as defined in
clause (i) in the next sentence (but shall be applicable to an Affiliate of
Tenant as defined in clauses (ii) and (iii) in the next sentence). The term
"Affiliate" as used in this Subsection 17B(b) shall mean (i) any a person or
entity controlling, controlled by or under common control with Tenant or (ii)
any corporation or other entity in which or with which Tenant is merged or
consolidated or (iii) any person or entity which acquires all or substantially
all of the assets of Tenant. The term "control" shall mean the power directly or
indirectly, by contract or otherwise, to direct the management and policies of
the applicable entity. Provided, however, (i) no such assignment or subletting
shall relieve Tenant of any of its obligations and liabilities to Landlord under
this Lease (as same may be amended, modified, assigned, extended or renewed) and
Tenant shall remain fully liable for the faithful performance of all covenants,
terms and conditions of this Lease (as same may be amended, modified, assigned,
extended or renewed) on the part of Tenant to be performed, (ii) such Affiliate
of Tenant must be capable of fulfilling the obligations of Tenant under this
Lease (as same may be amended, modified, assigned, extended or renewed), (iii)
it must demonstrated by Tenant to Landlord's reasonable satisfaction that such
merger, consolidation, or transfer is being consummated for a valid business
purpose, and not principally for the purpose of transferring Tenant's interest
in this Lease, and (iv) such Affiliate of Tenant must execute the agreement
contemplated by Subsection 17C below. Any such assignment agreement shall
provide that this Lease may not be further assigned without the prior written
consent of Landlord, and any such sublease shall specify that such sublease
shall not be assigned or the Premises or any part thereof further sublet without
the prior written consent of Landlord, which consent shall not be unreasonably
withheld.
C. Procedure. With respect to a proposed assignment or sublease to a
non-Affiliate of Tenant, Tenant shall
<PAGE>
notify Landlord of any proposed assignment or sublease at least thirty (30) days
prior to its proposed effective date. With respect to a proposed assignment or
sublease to an Affiliate of Tenant, Tenant shall notify Landlord of any proposed
assignment or sublease at least five (5) days prior to its proposed effective
date. Each notice under this Subsection 17C shall include the name and address
of the proposed assignee or subtenant, its corporate affiliates in the case of a
corporation and its partners in a case of a partnership, an execution copy of
the proposed assignment or sublease, and sufficient information to permit
Landlord to determine the financial responsibility and character of the proposed
assignee or subtenant. As a condition to any effective assignment of this Lease
(including to an Affiliate), the assignee shall execute and deliver in form
satisfactory to Landlord at least five (5) days prior to the effective date of
the assignment, an assumption of all of the obligations of Tenant under this
Lease. As a condition to any effective sublease (including to an Affiliate), the
subtenant shall execute and deliver in form satisfactory to Landlord at least
five (5) days prior to the effective date of the sublease, an agreement to
comply with all of Tenant's obligations under this Lease, and at Landlord's
option, an agreement (except for the economic obligations which subtenant will
undertake directly to Tenant) to attorn to Landlord under the terms of the
sublease in the event this Lease terminates before the sublease expires.
D. Change of Management or Ownership. Any transfer of the direct or indirect
power to affect the management or policies of Tenant or direct or indirect
change in 25% or more of the ownership interest in Tenant (any of the foregoing
in this Subsection D being herein sometimes referred to as an "Ownership
Transfer") shall constitute an assignment of this Lease. Notwithstanding the
foregoing in this Subsection D to the contrary, if Tenant shall be a corporation
whose stock is publicly traded on a nationally recognized securities exchange
(including the NASDAQ over-the-counter market), then, except with respect to an
Ownership Transfer in connection with the merger or consolidation of Tenant and
except with respect to an Ownership Transfer in connection with the sale of all
or substantially all of the assets of Tenant, any Ownership Transfer shall not
be deemed to be an assignment of this Lease. In any event, any Ownership
Transfer in connection with the merger or consolidation of Tenant or in
connection with the sale of all or substantially all of the assets of Tenant
shall constitute an assignment of this Lease.
E. Excess Payments. If Tenant shall assign this Lease or sublet any part of the
Premises to any entity that is not an Affiliate of Tenant for consideration in
excess of the pro-rata portion of Rent applicable to the space subject to the
assignment or sublet, then Tenant shall pay to Landlord as Additional Rent 50%
of any such excess (net of Tenant's Transfer Costs, as defined below)
immediately upon receipt. "Tenant's Transfer Costs" means the outstanding
balance from time to time of the sum of the following items: (1) the cost of any
additional tenant improvements required for the assignment of this Lease or the
subleasing of such portion of the Premises paid by Tenant; (2) reasonable
leasing commissions paid by Tenant in connection with the assignment or sublease
to the transferee, not to exceed the amount of such commissions customarily
payable with respect to the leasing of office space in the Geographic Area; (3)
rent abatements and other reasonable concessions granted by Tenant in connection
with such assignment or sublease; (4) reasonable marketing expenses paid
directly by Tenant to assign this Lease or sublease the space (to the extent not
included in a brokerage commission paid by Tenant); and (5) reasonable
attorney's fees and reasonable fees for other outside consultants incurred by
Tenant in connection with such assignment or sublease.
F. Recapture. Landlord may, by giving written notice to Tenant within thirty
(30) days after receipt of Tenant's notice of assignment or subletting,
terminate this Lease with respect to the space described in Tenant's notice, as
of the effective date of the proposed assignment or sublease and all obligations
under this Lease as to such space shall expire except as to any obligations that
expressly survive any termination of this Lease. Notwithstanding the foregoing,
the provisions of this Subsection 17F shall not be applicable with respect to
(i) any assignment of this Lease to an Affiliate, or (ii) any subletting of the
Premises or any portion thereof to an Affiliate, or (iii) any subletting of less
than substantially all of the Premises, or (iv) any assignment of this Lease to
any entity arising from the merger or consolidation of Tenant or to any entity
which acquires all or substantially all of the assets of Tenant, or (v) any
other Ownership Transfer.
18. CONVEYANCE BY LANDLORD. If Landlord shall at any time transfer its interest
in the Project or this Lease, Landlord shall be released of any obligations
occurring after such transfer, except the obligation to return to
<PAGE>
Tenant any security deposit not delivered to its transferee, and Tenant shall
look solely to Landlord's successors for performance of such obligations. This
Lease shall not be affected by any such transfer.
19. ESTOPPEL CERTIFICATE. Each party shall, within ten (10) days of receiving a
request from the other party, execute, acknowledge in recordable form, and
deliver to the other party or its designee a certificate stating, subject to a
specific statement of any applicable exceptions, that the Lease as amended to
date is in full force and effect, that the Tenant is paying Rent and other
charges on a current basis, and that to the best of the knowledge of the
certifying party, the other party has committed no uncured defaults and has no
offsets or claims. The certifying party may also be required to state the date
of commencement of payment of Rent, the Commencement Date, the Termination Date,
the Base Rent, the current Operating Cost Share Rent estimates, the status of
any improvements required to be completed by Landlord, the amount of any
security deposit, and such other matters as may be reasonably requested. Failure
to deliver such statement within the time required shall be conclusive evidence
against the non-certifying party that this Lease, with any amendments identified
by the requesting party, is in full force and effect, that there are no uncured
defaults by the requesting party, that not more than one month's Rent has been
paid in advance, that the non-certifying party has not paid any security
deposit, and that the non-certifying party has no claims or offsets against the
requesting party.
20. LANDLORD DEFAULT. The following events shall be deemed to be events of
default by Landlord under this Lease: (a) Landlord shall fail to pay any sum of
money payable by Landlord to or for the benefit of Tenant pursuant to the terms
hereof and such failure shall continue for thirty (30) days after receipt by
Landlord and any mortgagee of Landlord of written demand therefor (a "Landlord
Monetary Default"); and (b) Landlord shall fail to comply with any agreement
made under this Lease by Landlord relative to Landlord providing services to the
Premises or to Landlord making repairs to or maintaining the Project (expressly
excluding Landlord's obligations under Section 9 of this Lease), and shall not
cure such failure within thirty (30) days after receipt by Landlord and any
mortgagee of Landlord of written notice thereof (a "Landlord Non-Monetary
Default"); provided, however, if any such default is of a nature that it can be
cured and if Landlord in good faith commences to cure such default within such
cure period, but due to the nature of such default it could not be cured within
such cure period after due diligence, no event of default shall be deemed to
have occurred at the end of the cure period if Landlord is then diligently and
in good faith pursuing such cure to completion and completes such cure as
promptly as reasonably possible under all of the circumstances. Upon the
occurrence of any of the aforesaid events of default by Landlord, while the
condition which gave rise to the event of default continues, Tenant shall have
the option to pursue any one or more of the following remedies:
(i) In the case of a Landlord Monetary Default hereunder, Tenant shall have the
right to set-off against and deduct from the Base Rent next due under this Lease
the amount of any payment due Tenant hereunder, including Default Interest
accrued thereon as provided in Section 2D(2).
(ii) In the case of a Landlord Non-Monetary Default hereunder, Tenant may
perform such obligation which Landlord has failed to perform, and the actual,
reasonable amount of the cost and expense reasonably incurred by Tenant to
perform such obligation shall be paid by Landlord to Tenant. Tenant shall
provide Landlord with copies of the invoice or other written evidence of the
costs and expenses incurred by Tenant for which Tenant claims reimbursement. If
Landlord shall fail to pay such costs and expenses within thirty (30) days after
written demand therefor, Tenant shall have the right to deduct the amount due by
Landlord to Tenant hereunder as an offset from Base Rent next due hereunder,
including Default Interest accrued thereon as provided in Section 2D(2).
(iii) Pursuit by Tenant 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, except for the remedies of self-help and set-off (the procedures
for which are limited as described in clauses (i) and (ii) above) and except
that Tenant may not terminate this Lease unless such right is otherwise
expressly set forth in this Lease. The remedies set forth in clauses (i) and
(ii) above are in addition to and cumulative with the termination or rental
abatement rights of Tenant expressly and specifically set forth elsewhere in
this Lease. Any termination or rental abatement rights of Tenant expressly and
specifically set forth elsewhere in this Lease may be exercised independently of
any rights or remedies set forth in this Section 20 above. In no event shall the
cure periods set forth in this Section 20 above extend the time periods
<PAGE>
set forth in this Lease with respect to the termination or rental abatement
rights of Tenant expressly and specifically set forth elsewhere in this Lease.
(c) In the event a default by Landlord is cured by a third party, including,
without limitation, any mortgagee of Landlord, such cure shall be deemed to be a
cure by Landlord.
21. FORCE MAJEURE. Landlord shall not be in default under this Lease to the
extent Landlord is unable to perform any of its obligations on account of any
strike or labor problem, energy shortage, governmental pre-emption or
prescription, national emergency, or any other cause of any kind beyond the
reasonable control of Landlord ("Force Majeure"). If, as a result of Force
Majeure beyond the reasonable control of Tenant, Tenant is delayed in performing
any of its obligations under this Lease, other than Tenant's obligation to pay
Rent and all other charges and sums payable by Tenant hereunder, Tenant's
performance shall be excused for a period equal to such delay and Tenant shall
not during such period be considered to be in default under this Lease with
respect to the obligation, performance of which has thus been delayed.
22. SPECIAL MASTER PROCEDURE. Landlord and Tenant hereby agree that, in the
event of a default by Landlord or Tenant hereunder and the expiration of any
applicable cure period, Landlord and Tenant shall have the right (but not the
obligation), exercisable within thirty (30) days following the date of filing of
its initial pleading (complaint or answer, as the case may be) in connection
with such default, to request the court to appoint a special master in any legal
proceedings instituted by Landlord or Tenant in connection with such default in
order to attempt to expedite the entry or denial of a judgment or other decision
in such proceedings; provided, however, notwithstanding the foregoing, in no
event shall Tenant or Landlord be entitled to make any such request in any
dispossessory, eviction or other action filed by Landlord which seeks to
terminate this Lease or Tenant's right to possession of the Premises. For all
purposes of this Lease, Landlord and Tenant hereby expressly approve and consent
to the appointment of a special master in all such proceedings and consent and
agree to be governed by the rules, regulations and procedures governing same, as
same may be promulgated and in effect from time to time, and to be bound by all
decisions and judgments (subject to appeals permitted by law) rendered as a
result thereof or in connection therewith.
23. NOTICES. All notices, consents, approvals and similar communications to be
given by one party to the other under this Lease, shall be given in writing,
mailed or personally delivered as follows:
A. Landlord. To Landlord as follows:
CarrAmerica Realty Corporation
1600 Parkwood Circle, Suite 150
Atlanta, Georgia 30339
Attn: Market Officer
with a copy to:
- ---------------
CarrAmerica Realty Corporation
1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Attn: Lease Administration
and with a copy to:
- -------------------
Withrow, McQuade & Olsen, LLP
3379 Peachtree Road, N.E.
Suite 970
Atlanta, Georgia 30326
Attn: Steven J. Olsen, Esq.
<PAGE>
or to such other person at such other address as Landlord may designate by
notice to Tenant.
B. Tenant. To Tenant as follows:
Prior to the Commencement Date for Phase 1 of the Premises:
- -----------------------------------------------------------
EduTrek International, Inc.
3340 Peachtree Road, N.E.
Tower Place, Suite 2000
Atlanta, Georgia 30326
Attn: Chief Executive Officer
After the Commencement Date for Phase 1 of the Premises:
- --------------------------------------------------------
EduTrek International, Inc.
6600 Peachtree-Dunwoody Road
Building 500, Suite 300
Atlanta, Georgia 30328
Attn: Chief Executive Officer
with a copy to:
- ---------------
Smith, Gambrell & Russell, LLP
Promenade II, Suite 3100
1230 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attn: Arthur Jay Schwartz, Esq.
and with a copy to:
- -------------------
Cushman & Wakefield of Georgia, Inc.
One Atlantic Center
1201 West Peachtree Street, Suite 3300
Atlanta, Georgia 30309
Attn: Messrs. Mark Christopher and Andy Ghertner
or to such other person at such other address as Tenant may designate by notice
to Landlord.
Mailed notices shall be sent by United States certified or registered mail, or
by a reputable national overnight courier service, postage prepaid. Mailed
notices shall be deemed to have been given on the earlier of actual delivery or
three (3) business days after posting in the United States mail in the case of
registered or certified mail, and one business day in the case of overnight
courier.
24. QUIET POSSESSION. So long as Tenant shall perform all of its obligations
under this Lease, and subject to the terms and provisions of this Lease, Tenant
shall enjoy peaceful and quiet possession of the Premises for the Term against
any party claiming through the Landlord.
25. REAL ESTATE BROKER. Cushman & Wakefield of Georgia, Inc. ("Tenant's Broker")
is entitled to a leasing commission from Landlord by virtue of this Lease, which
leasing commission shall be paid by Landlord to Tenant's Broker upon and subject
to the terms of a separate written agreement between Landlord and Tenant's
Broker. Tenant hereby authorizes Tenant's Broker and Landlord to identify Tenant
as a tenant of the Building and to state the amount of space leased by Tenant in
advertisements and promotional materials relating to the Building. Tenant
represents and warrants to Landlord that, except with respect to Tenant's Broker
which has acted as agent for Tenant (and not for Landlord) in this transaction,
no broker, agent, commission salesperson, or other person has
<PAGE>
represented Tenant in the negotiations for and procurement of this Lease and of
the Premises and that, except with respect to Tenant's Broker, no commissions,
fees or compensation of any kind are due and payable in connection herewith to
any broker, agent, commission salesperson or other person as a result of any act
or agreement of Tenant. Tenant agrees to indemnify and hold Landlord harmless
from all loss, liability, damage, claim, judgment, cost or expense (including
reasonable attorneys' fees and court costs) suffered or incurred by Landlord as
a result of a breach by Tenant of the representation and warranty contained in
the immediately preceding sentence or as a result of Tenant's failure to pay
commissions, fees or compensation due to any broker who represented Tenant,
whether or not disclosed, or as a result of any claim for any fee, commission or
similar compensation with respect to this Lease made by any broker, agent or
finder (other than Tenant's Broker) claiming to have dealt with Tenant, whether
or not such claim is meritorious. The parties hereto do hereby acknowledge and
agree that CarrAmerica Realty Corporation has acted as agent for Landlord in
this transaction and shall be paid a commission by Landlord in connection with
this transaction pursuant to the terms of a separate written commission
agreement. CarrAmerica Realty Corporation has not acted as agent for Tenant in
this transaction. Landlord hereby warrants and represents to Tenant that
Landlord has not dealt with any broker, agent or finder other than CarrAmerica
Realty Corporation in connection with this Lease, and, Landlord hereby agrees to
indemnity and hold Tenant harmless from and against any and all loss, damage,
liability, claim, judgment, cost or expense (including, but not limited to,
reasonable attorneys' fees and court costs) that may be incurred or suffered by
Tenant because of any claim for any fee, commission or similar compensation with
respect to this Lease made by any broker, agent or finder claiming to have
represented Landlord.
26. MISCELLANEOUS.
A. Successors and Assigns. Subject to the limits on Tenant's assignment
contained in Section 17, the provisions of this Lease shall be binding upon and
inure to the benefit of all successors and assigns of Landlord and Tenant.
B. Date Payments Are Due. Except for payments to be made by Tenant under this
Lease which are due upon demand or are due in advance (such as Base Rent),
Tenant shall pay to Landlord any amount for which Landlord renders a statement
of account within ten (10) days of Tenant's receipt of Landlord's statement.
C. Meaning of "Landlord", "Re-Entry, "including" and "Affiliate". The term
"Landlord" means only the owner of the Project and the lessor's interest in this
Lease from time to time. The words "re-entry" and "re-enter" are not restricted
to their technical legal meaning. The words "including" and similar words shall
mean "without limitation." The word "affiliate" shall mean a person or entity
controlling, controlled by or under common control with the applicable entity.
"Control" shall mean the power directly or indirectly, by contract or otherwise,
to direct the management and policies of the applicable entity.
D. Time of the Essence. Time is of the essence of each provision of this Lease.
E. No Option. This document shall not be effective for any purpose until it has
been executed and delivered by both parties; execution and delivery by one party
shall not create any option or other right in the other party.
F. Severability. The unenforceability of any provision of this Lease shall not
affect any other provision.
G. Governing Law. This Lease shall be governed in all respects by the laws of
the state in which the Project is located, without regard to the principles of
conflicts of laws.
H. [Intentionally Omitted]
I. No Oral Modification. No modification of this Lease shall be effective unless
it is a written modification signed by both parties.
J. Landlord's Right to Cure. Subject to the provisions of Section 20, if
Landlord breaches any of its
<PAGE>
obligations under this Lease, Tenant shall notify Landlord in writing and shall
take no action respecting such breach so long as Landlord promptly begins to
cure the breach and diligently pursues such cure to its completion. Landlord may
cure any default by Tenant which remains uncured after any applicable notice and
cure period; any expenses reasonably incurred shall become Additional Rent due
from Tenant on demand by Landlord.
K. Captions. The captions used in this Lease shall have no effect on the
construction of this Lease. All Appendixes referenced in this Lease and attached
hereto are incorporated herein by reference.
L. Authority. Landlord and Tenant each represents to the other that it has full
power and authority to execute and perform this Lease.
M. Landlord's Enforcement of Remedies. Landlord may enforce any of its remedies
under this Lease either in its own name or through an agent.
N. Entire Agreement. This Lease, together with all Appendices, constitutes the
entire agreement between the parties. No representations or agreements of any
kind have been made by either party which are not contained in this Lease.
O. Landlord's Title. Landlord's title shall always be paramount to the interest
of the Tenant, and nothing in this Lease shall empower Tenant to do anything
which might in any way impair Landlord's title.
P. Light and Air Rights. Landlord does not grant in this Lease any rights to
light and air in connection with Project. Landlord reserves to itself, the Land,
the Building below the improved floor of each floor of the Premises, the
Building above the ceiling of each floor of the Premises, the exterior of the
Premises and the areas on the same floor outside the Premises, along with the
areas within the Premises required for the installation and repair of utility
lines and other items required to serve other tenants of the Building; provided,
however, Landlord covenants and agrees with Tenant that after the completion of
the Base Building and of the initial leasehold improvements in the Premises,
Landlord shall not construct any additional leasable office space on or above
the roof of the Building and, provided further, Landlord shall not install or
construct any permanent improvement outside the Building which would prevent or
materially, adversely restrict access to the interior common areas of the
Building or to the Premises.
Q. Singular and Plural. Wherever appropriate in this Lease, a singular term
shall be construed to mean the plural where necessary, and a plural term the
singular. For example, if at any time two parties shall constitute Landlord or
Tenant, then the relevant term shall refer to both parties together.
R. No Recording by Tenant. Except as otherwise expressly set forth in this
Subsection 26R below, Tenant shall not record in any public records any
memorandum or any portion of this Lease. Either contemporaneous with the
execution of this Lease or at any time thereafter, either party hereto shall
have the right to require the other party to execute a memorandum or short form
of this Lease substantially in the form annexed hereto as Appendix N and to
record the same in the public records of Fulton County, Georgia; the rent and
other economic terms hereof shall not be disclosed in such memorandum or short
form. Upon the request of Landlord following the expiration or termination of
this Lease, Tenant shall promptly execute and deliver to Landlord an appropriate
release and/or cancellation instrument acknowledging the expiration or
termination of this Lease and releasing any and all right, title and interest of
Tenant in and to the Premises and all other portions of the Development under
this Lease. Also upon the request of Landlord following the expiration,
termination, waiver or lapse of any of the rights or options of Tenant provided
for in this Lease, Tenant shall promptly execute and deliver to Landlord an
appropriate release instrument acknowledging the expiration, termination, waiver
or lapse of such rights or options, as the case may be. The release and/or
cancellation instruments contemplated herein shall be executed in proper form
for recordation in the Office of the Clerk of the Superior Court of Fulton
County, Georgia. Such agreement by Tenant shall survive the expiration or
termination of this Lease. If Tenant shall fail at any time, within ten (10)
days following the giving of a written request therefor, to execute,
acknowledge, and deliver any such instrument, Landlord, in addition to any other
remedies available to it in consequence thereof, may execute, acknowledge, and
deliver the same as the
<PAGE>
attorney-in-fact of Tenant and in Tenant's name, place, and stead, and Tenant
hereby irrevocably makes, constitutes, and appoints Landlord or such holder, and
their respective successors and assigns, as such attorney-in-fact for that
purpose.
S. Exclusivity. Landlord does not grant to Tenant in this Lease any exclusive
right except the right to occupy its Premises and except for Tenant's facing
signage rights on the Building as expressly and specifically set forth in
Special Stipulation 34 of Appendix F of this Lease and except for Tenant's
monument signage rights as expressly and specifically set forth in Special
Stipulation 35 of Appendix F of this Lease .
T. No Construction Against Drafting Party. The rule of construction that
ambiguities are resolved against the drafting party shall not apply to this
Lease.
U. Survival. All obligations of Landlord and Tenant under this Lease shall
survive the termination of this Lease.
V. Rent Not Based on Income. No rent or other payment in respect of the Premises
shall be based in any way upon net income or profits from the Premises. Tenant
may not enter into or permit any sublease or license or other agreement in
connection with the Premises which provides for a rental or other payment based
on net income or profit.
W. Building Manager and Service Providers. Landlord may perform any of its
obligations under this Lease through its employees or third parties hired by the
Landlord.
X. Late Charge and Interest on Late Payments. Without limiting the provisions of
Section 12A, if Tenant fails to pay any installment of Rent or other charge to
be paid by Tenant pursuant to this Lease within five (5) days after the same
becomes due and payable, and, in the case of only the first two (2) such late
payments in any 12 consecutive months, such failure continues for an additional
five (5) days, then Tenant shall pay a late charge equal to the greater of two
percent (2%) of the amount of such payment or $250. In addition, interest shall
be paid by Tenant to Landlord on any late payments of Rent from the date due
until paid at the rate provided in Section 2D(2). Such late charge and interest
shall constitute Additional Rent due and payable by Tenant to Landlord upon the
date of payment of the delinquent payment referenced above.
Y. Tenant's Financial Statements. Within ten (10) days after Landlord's written
request therefor, Tenant shall deliver to Landlord the current audited annual
and quarterly financial statements of Tenant, and annual audited financial
statements of the two (2) years prior to the current year's financial
statements, each with an opinion of a certified public accountant and including
a balance sheet and profit and loss statement, all prepared in accordance with
generally accepted accounting principles consistently applied. If Tenant shall
have assigned this Lease to an Affiliate of Tenant, then the foregoing
provisions in this Subsection Y shall not be applicable to the Affiliate, but
the named Tenant herein shall continue to comply with this Subsection 26Y.
Z. No Estate. Notwithstanding anything contained in this Lease to the contrary,
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 expressly provided.
27. UNRELATED BUSINESS INCOME. If Landlord is advised by its counsel at any time
that any part of the payments by Tenant to Landlord under this Lease may be
characterized as unrelated business income under the United States Internal
Revenue Code and its regulations, then Tenant shall enter into any amendment
proposed by Landlord to avoid such income, so long as the amendment does not
require Tenant to make more payments or accept fewer services from Landlord,
than this Lease provides, and provided further, Tenant shall not be obligated to
execute any such amendment which would have the effect of increasing the
obligations or liability of Tenant hereunder or of unreasonably and adversely
diminishing, limiting or restricting Tenant's rights, powers or privileges under
this Lease.
<PAGE>
28. HAZARDOUS SUBSTANCES. Tenant shall not cause or permit any Hazardous
Substances to be brought upon, produced, stored, used, discharged or disposed of
in or near the Project unless Landlord has consented to such storage or use in
its sole discretion, except for such Hazardous Substances as are commonly used
or produced as a consequence of using the Premises for the permitted uses
described in Section 6 above, but only so long as the quantities thereof do not
pose a threat to public health or to the environment or would necessitate a
"response action", as that term is defined in CERCLA, and so long as Tenant and
its partners, employees, agents and contractors strictly comply with all
applicable Legal Requirements concerning the use or storage of such Hazardous
Substances. "Hazardous Substances" include those hazardous substances described
in the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. Section 6901 et seq., any other applicable
federal, state or local law, and the regulations adopted under these laws. If
any lender or governmental agency shall require testing for Hazardous Substances
in the Premises, Tenant shall pay for such testing. Landlord shall not cause any
Hazardous Substances to be placed, held, located or disposed of in the Premises
or any part thereof, in a manner or quantity prohibited by federal or State of
Georgia laws or regulations at the time such materials are placed in the
Premises. Landlord hereby further agrees that it shall prohibit the Building
architect and the base building general contractor from installing, or requiring
the installation of, in the Premises, any Hazardous Substances in a manner or
quantity prohibited by federal or State of Georgia laws or regulations. In the
event, during the Term of this Lease, (i) the Premises is determined to contain
any Hazardous Substances in a manner or quantity prohibited by such federal or
State of Georgia laws or regulations, (ii) the federal government or the State
of Georgia requires its removal or encapsulation during the Term of this Lease,
and (iii) such Hazardous Substances was installed by Landlord or its agents,
employees, contractors or suppliers, Landlord shall, at its cost and expense,
cause such remedial measures to be taken as are necessary either to remove or
(if permitted by applicable law) encapsulate such Hazardous Substances.
29. EXCULPATION. Landlord shall have no personal liability under this Lease; its
liability shall be limited to its interest in the Project, and shall not extend
to any other property or assets of the Landlord. In no event shall any officer,
director, employee, agent, shareholder, partner, member or beneficiary of
Landlord be personally liable for any of Landlord's obligations hereunder.
30. SPECIAL STIPULATIONS. To the extent the special stipulations attached hereto
as Appendix F conflict with or are inconsistent with the foregoing provisions of
this Lease or any exhibit or other appendix to this Lease, the special
stipulations shall control.
IN WITNESS WHEREOF, the parties hereto have executed this Lease.
LANDLORD:
CarrAmerica Realty Corporation
a Maryland corporation
By:
-------------------------------
Print Name:
-----------------------
Print Title:
----------------------
TENANT:
EduTrek International, Inc.,
a Georgia corporation
<PAGE>
By:
-------------------------------
Print Name:
-----------------------
Print Title:
----------------------
<PAGE>
Page
APPENDIX A
PLAN OF THE PREMISES
(attach floor plan depicting the Premises; to be attached prior to Lease
execution)
APPENDIX B
RULES AND REGULATIONS
1. Tenant shall not place anything, or allow anything to be placed near the
glass of any window, door, partition or wall which may, in Landlord's judgment,
appear unsightly from outside of the Project.
2. The Project directory shall be available to Tenant solely to display names
and their location in the Project, which display shall be as directed by
Landlord.
3. The sidewalks, halls, passages, exits, entrances, elevators and stairways
shall not be obstructed by Tenant or used by Tenant for any purposes other than
for ingress to and egress from the Premises. Tenant shall lend its full
cooperation to keep such areas free from all obstruction and in a clean and
sightly condition and shall move all supplies, furniture and equipment as soon
as received directly to the Premises and move all such items and waste being
taken from the Premises (other than waste customarily removed by employees of
the Building) directly to the shipping platform at or about the time arranged
for removal therefrom. The halls, passages, exits, entrances, elevators,
stairways, balconies and roof are not for the use of the general public and
Landlord shall, in all cases, retain the right to control and prevent access
thereto by all persons whose presence in the judgment of Landlord, reasonably
exercised, shall be prejudicial to the safety, character, reputation and
interests of the Project. Neither Tenant nor any employee or invitee of Tenant
shall go upon the roof of the Project.
4. The toilet rooms, urinals, wash bowls and other apparatuses shall not be used
for any purposes other than that for which they were constructed, and no foreign
substance of any kind whatsoever shall be thrown therein, and to the extent
caused by Tenant or its employees or invitees, the expense of any breakage,
stoppage or damage resulting from the violation of this rule shall be borne by
Tenant.
5. Tenant shall not cause any unnecessary janitorial labor or services by reason
of Tenant's carelessness or indifference in the preservation of good order and
cleanliness.
6. Tenant shall not install or operate any refrigerating, heating or air
conditioning apparatus, or carry on any mechanical business without the prior
written consent of Landlord; use the Premises for housing, lodging or sleeping
purposes; or permit preparation or warming of food in the Premises except in the
kitchen area shown in the Construction Documents (preparation of food and drinks
for consumption in such kitchen area by Tenant's employees and guests excepted).
Tenant shall use in a safe and proper manner all kitchen equipment which is
installed in any such kitchen area pursuant to the Construction Documents.
Tenant shall not occupy or use the Premises or permit the Premises to be
occupied or used for any purpose, act or thing which is in violation of any
Legal Requirement or which may be dangerous to persons or property.
7. Tenant shall not bring upon, use or keep in the Premises or the Project any
kerosene, gasoline or inflammable or combustible fluid or material, or any other
articles deemed hazardous to persons or property, or use any method of heating
or air conditioning other than that supplied by Landlord and other than as are
commonly used or produced as a consequence of using the Premises for the
permitted uses described in Section 6 of the Lease.
8. Landlord shall have sole power to direct electricians as to where and how
telephone and other wires are to be introduced. No boring or cutting for wires
is to be allowed without the consent of Landlord. The location of
<PAGE>
Page
telephones, call boxes and other office equipment affixed to the Premises shall
be subject to the approval of Landlord.
9. Subject to the provisions of Subsection 11D of this Lease regarding Secured
Areas, no additional locks shall be placed upon any doors, windows or transoms
in or to the Premises. Tenant shall not change existing locks or the mechanism
thereof. Upon termination of this Lease, Tenant shall deliver to Landlord all
keys and passes for offices, rooms, parking lot and toilet rooms which shall
have been furnished Tenant.
In the event of the loss of keys so furnished, Tenant shall pay Landlord
therefor. Tenant shall not make, or cause to be made, any such keys and shall
order all such keys solely from Landlord and shall pay Landlord for any keys in
addition to the keys originally furnished by Landlord for each lock. The cost of
keys described in this paragraph shall not exceed a reasonable amount.
10. Tenant shall not install linoleum, tile, carpet or other floor covering so
that the same shall be affixed to the floor of the Premises in any manner except
as approved by Landlord.
11. No furniture, packages, supplies, equipment or merchandise will be received
in the Project or carried up or down in the freight elevator, except between
such hours and in such freight elevator as shall be designated by Landlord.
Tenant shall not take or permit to be taken in or out of other entrances of the
Building, or take or permit on other elevators, any item normally taken in or
out through the trucking concourse or service doors or in or on freight
elevators.
12. [Intentionally Omitted.]
13. Tenant shall not use the name or address of the Project or any picture of
the Project in any manner which in Landlord's reasonable opinion adversely
impacts Landlord or the Project.
14. Tenant shall cooperate fully with Landlord to assure the most effective
operation of the Premises' or the Project's heating and air conditioning, and
shall refrain from attempting to adjust any controls, other than room
thermostats installed for Tenant's use. Tenant shall keep corridor doors closed.
15. Tenant assumes full responsibility for protecting the Premises from theft,
robbery and pilferage, which may arise from a cause other than Landlord's
negligence, which includes keeping doors locked and other means of entry to the
Premises closed and secured.
16. Canvassing, peddling, soliciting and distribution of handbills or any other
written materials in the Building are prohibited, and Tenant shall cooperate to
prevent the same.
17. Tenant shall not advertise the business, profession or activities of Tenant
conducted in the Project in any manner which violates the letter or spirit of
any code of ethics adopted by any recognized association or organization
pertaining to such business, profession or activities.
18. No bicycle or other vehicle and no animals or pets shall be allowed in the
Premises, halls, freight docks, or any other parts of the Building except that
blind persons may be accompanied by "seeing eye" dogs. Tenant shall not make or
permit any noise, vibration or odor to emanate from the Premises, or do anything
therein tending to create, or maintain, a nuisance, or do any act tending to
injure the reputation of the Building.
19. Tenant acknowledges that Building security problems may occur which may
require the employment of extreme security measures in the day-to-day operation
of the Project.
Accordingly:
(a) Landlord may, at any time, or from time to time, or for regularly scheduled
time periods, as deemed
<PAGE>
Page
advisable by Landlord and/or its agents, in their sole discretion, require that
persons entering or leaving the Project or the Property identify themselves to
watchmen or other employees designated by Landlord, by registration,
identification or otherwise.
(b) Tenant agrees that it and its employees will cooperate fully with Project
employees in the implementation of any and all security procedures.
(c) Such security measures shall be the sole responsibility of Landlord, and
Tenant shall have no liability for any action taken by Landlord in connection
therewith, it being understood that Landlord is not required to provide any
security procedures and shall have no liability for such security procedures or
the lack thereof.
20. Tenant shall not do or permit the manufacture of any fermented, intoxicating
or alcoholic beverages without obtaining written consent of Landlord.
21. Tenant shall not disturb the quiet enjoyment of any other tenant.
22. Tenant shall not provide any janitorial services or cleaning without
Landlord's written consent and then only subject to supervision of Landlord and
at Tenant's sole responsibility and by janitor or cleaning contractor or
employees at all times satisfactory to Landlord.
23. Subject to the provisions of Subsections 11D, 11E and 11H of this Lease
regarding Secured Areas, Landlord may retain a pass key to the Premises and be
allowed admittance thereto at all times to enable its representatives to examine
the Premises from time to time and to exhibit the same and Landlord may place
and keep on the windows and doors of the Premises at any time signs advertising
the Premises for Rent.
24. No equipment, mechanical ventilators, awnings, special shades or other forms
of window covering shall be permitted either inside or outside the windows of
the Premises without the prior written consent of Landlord (Landlord's consent
with respect to shades or other forms of window covering inside of the Premises
shall not be unreasonably withheld), and then only at the expense and risk of
Tenant, and they shall be of such shape, color, material, quality, design and
make as may be approved by Landlord (Landlord's consent with respect to shades
or other forms of window covering inside of the Premises shall not be
unreasonably withheld).
25. Tenant shall not during the term of this Lease canvas or solicit other
tenants of the Building for any purpose.
26. Subject to the provision of Special Stipulation 37 of Appendix F of this
Lease, Tenant shall not install or operate any sound-producing instrument or
device, radio receiver or transmitter, TV receiver or transmitter, or similar
device in the Building in any manner which could reasonably be expected to
unreasonably interfere with other tenants or licensees in the Development
without in each instance the prior written approval of Landlord, nor install or
operate any antenna, aerial, wires or other equipment inside or outside the
Building, nor operate any electrical device from which may emanate electrical
waves which may interfere with or impair radio or television broadcasting or
reception from or in the Building or elsewhere, without in each instance the
prior written approval of Landlord, which approval shall not be unreasonably
withheld. The use thereof, if permitted, shall be subject to the reasonable
control by Landlord to the end that others shall not be unreasonably disturbed.
27. Tenant shall not overload any floors in the Premises or any public corridors
or elevators in the Building.
28. Tenant shall not in any way deface any part of the Premises or the Building,
outside or inside, without the prior written consent of Landlord.
29. Whenever Landlord's consent, approval or satisfaction is required under
these Rules, then unless otherwise stated, any such consent, approval or
satisfaction must be obtained in advance, such consent or approval may be
granted or withheld in Landlord's sole discretion, and Landlord's satisfaction
shall be determined in its sole
<PAGE>
Page
judgment.
30. Tenant and its employees shall cooperate in all fire drills conducted by
Landlord in the Building.
Whenever the Rules and Regulations conflict with any of the rights or
obligations of Tenant pursuant to the provisions of the body of this Lease, the
provisions of the Lease shall govern.
APPENDIX E
COMMENCEMENT DATE CONFIRMATION
Landlord: CarrAmerica Realty Corporation
Tenant: EduTrek International, Inc., a Georgia corporation
This Commencement Date Confirmation is made by Landlord and Tenant pursuant to
that certain Lease dated as of February 16, 1998 (the "Lease") for certain
premises consisting of the entire rentable area in the building commonly known
as Embassy Row 500 (the "Premises"). This Confirmation is made pursuant to Item
9 of the Schedule to the Lease.
1. Lease Commencement Date, Termination Date. Landlord and Tenant hereby agree
that the Commencement Date for Phase __ of the Premises is _____________, 199__
, and the Termination Date of the Lease with respect to the entire Premises is
_______________, 20__.
2. Acceptance of Premises. Tenant has inspected Phase __ of the Premises and
affirms that such Phase of the Premises is acceptable in all respects in its
current "as is" condition, except for any "punch list" items (as that term is
used in the construction industry) noted by Tenant in writing to Landlord within
sixty (60) days after taking possession pursuant to any inspection of the
Premises made by Tenant with Landlord within such sixty (60) day period and
except for latent defects not discoverable by reasonable diligence by Tenant.
3. Incorporation. This Confirmation is incorporated into the Lease, and forms an
integral part thereof. This Confirmation shall be construed and interpreted in
accordance with the terms of the Lease for all purposes.
TENANT:
EduTrek International, Inc.,
a Georgia corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
LANDLORD: CarrAmerica Realty Corporation
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
APPENDIX F
SPECIAL STIPULATIONS
<PAGE>
Page
31. Covenant to Construct Base Building. Landlord shall, at its expense (except
for the costs to be borne by Tenant as otherwise provided in this Lease,
including Appendixes C and J hereof), design and construct the Base Building (as
defined in Appendix J) substantially in accordance with the base building plans
and specifications (as such term is defined in Appendix J) and in compliance
with Legal Requirements (including the Americans with Disabilities Act) in every
material respect. Any Change Orders requested by Tenant to the Base Building
shall be governed by the provisions of Appendix C.
32. Extension Options. Subject to Subsections B and D below, Tenant may at its
option extend the Term of this Lease for four (4) successive periods of five (5)
years each. Each such period is called a "Renewal Term", and the first such five
(5) year period is called the "First Renewal Term," the second such five (5)
year period is called the "Second Renewal Term," the third such five (5) year
period is called the "Third Renewal Term," and the fourth such five (5) year
period is called the "Fourth Renewal Term". Notwithstanding the foregoing, the
duration of one (1) of the Renewal Terms may be reduced in accordance with the
provisions of Subsection 32D below. Each Renewal Term shall be upon the same
terms contained in this Lease excluding the provisions of Appendixes C and J of
this Lease and except for the payment of Base Rent during the Renewal Term; and
any reference in the Lease to the "Term" of the Lease shall be deemed to include
any Renewal Term and apply thereto, unless it is expressly provided otherwise.
Tenant shall have no additional extension or renewal options.
A. The Base Rent during a Renewal Term shall be ninety-five percent (95%) of the
Market Rate (defined hereinafter) for such space for a term commencing on the
first day of the Renewal Term in question. "Market Rate" shall mean the then
prevailing fair market rental rate (projected to the commencement date of the
applicable Renewal Term) that would be agreed to by a landlord and a comparable
tenant (including comparable size and creditworthiness) for comparable space at
a comparable, first class building located within the Geographic Area (including
other buildings in the Development), each of whom is willing, but neither of
whom is compelled, to enter into a lease transaction for a comparable term
commencing on the first day of the Renewal Term, taking into account all other
relevant factors, including without limitation the following: (i) rental for
comparable premises in comparable existing buildings within the Geographic Area
(taking into consideration, without limitation, annual escalations; definition
of net rentable area; age and location of the applicable buildings; and location
and/or floor level within the applicable building); (ii) the rentable area of
the premises being leased; (iii) the length of the pertinent rental term; (iv)
the extent to which the work letter, rent credit, moving allowance or similar
inducement given to Tenant is less than or greater than that which would have
been given to a comparable new tenant in a comparable building; (v) the quality
and credit worthiness of Tenant; (vi) the parking ratio made available to Tenant
(excluding from such determination Tenant's Parking Spaces on the top two levels
of the Parking Deck); and (vii) the provision of free parking (or lack thereof).
B. To exercise any option Tenant must deliver a non-binding notice and a binding
notice as described in this Subsection B below.
(i) Tenant must deliver a non-binding notice to Landlord that Tenant desires to
establish the Market Rate for the next Renewal Term not less than three hundred
(300) days prior to the expiration of the initial Term of this Lease, or the
Renewal Term then in effect, as the case may be. Thereafter, the Market Rate for
the particular Renewal Term shall be calculated pursuant to Subsection C below
and Landlord shall inform Tenant of the Market Rate. If Tenant fails to timely
give such non-binding notice, Tenant will be conclusively deemed to have waived
its right under this Section 32 to have the Market Rate determined prior to the
date on which Tenant is obligated to provide a binding notice pursuant to the
provisions of this Section 32 below.
(ii) If Tenant has timely given the non-binding notice required pursuant to the
provisions of Subsection 32B(i) above, then, after the Market Rate for the
particular Renewal Term is calculated pursuant to Subsection C below, Tenant
must also deliver a binding notice to Landlord not less than one hundred eighty
(180) days prior to the expiration of the initial Term of this Lease, or the
Renewal Term then in effect, as the case may be; provided, however, if Tenant
has timely and properly given the non-binding notice pursuant to Subsection
32B(i) above as aforesaid, then Tenant shall have in any event at least three
(3) business days after the determination of the Market
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Rate in accordance with Subsection 32C below to deliver the binding notice to
Landlord as required by this Subsection 32B(ii). If Tenant has not timely given
the non-binding notice required pursuant to the provisions of Subsection 32B(i)
above, then Tenant must deliver a binding notice to Landlord not less than one
hundred eighty (180) days prior to the expiration of the initial Term of this
Lease, or the Renewal Term then in effect, as the case may be, and thereafter
the Market Rate for the particular Renewal Term shall be calculated pursuant to
Subsection C below and Landlord shall inform Tenant of the Market Rate. The
calculation of Market Rate as determined in accordance with Subsection 32C below
shall be final and shall not be recalculated at the actual commencement of such
Renewal Term. If Tenant fails to timely give its binding notice of exercise,
Tenant will be deemed to have waived its option to extend.
C. Market Rate shall be determined as follows:
(i) If Tenant shall have timely provided Landlord with its non-binding notice
pursuant to Subsection 32B(i) above, then at some point between three hundred
(300) and two hundred seventy (270) days prior to the commencement of the
applicable Renewal Term (or, at Landlord's election, at an earlier point),
Landlord shall calculate and inform Tenant of the Market Rate. On the other
hand, if Tenant shall not have timely provided Landlord with its non-binding
notice pursuant to Subsection 32B(i) above, but Tenant shall have timely
provided Landlord with its binding notice pursuant to Subsection 32B(ii) above,
then at some point between two hundred ten (210) and one hundred fifty (150)
days prior to the commencement of the applicable Renewal Term (or, at Landlord's
election, at an earlier point), Landlord shall calculate and inform Tenant of
the Market Rate. In either case, if Tenant rejects the Market Rate as calculated
by Landlord, Tenant shall inform Landlord of its rejection within ten (10) days
after Tenant's receipt of Landlord's calculation, and Landlord and Tenant shall
commence negotiations to agree upon the Market Rate. If Tenant fails to timely
reject Landlord's calculation of the Market Rate it will be deemed to have
accepted such calculation. If Landlord and Tenant are unable to reach agreement
within twenty-one (21) days after Landlord's receipt of Tenant's notice of
rejection, then the Market Rate shall be determined in accordance with (ii)
below.
(ii) If Landlord and Tenant are unable to reach agreement on the Market Rate
within said twenty-one (21) day period, then within seven (7) days, Landlord and
Tenant shall each simultaneously submit to the other in a sealed envelope its
good faith estimate of the Market Rate. If the higher of such estimates is not
more than one hundred five percent (105%) of the lower, then the Market Rate
shall be the average of the two. Otherwise, the dispute shall be resolved by
arbitration in accordance with (iii) and (iv) below.
(iii) Within seven (7) days after the exchange of estimates, the parties shall
select as an arbitrator an independent licensed real estate broker from an
independent real estate brokerage company in Atlanta, Georgia each with at least
ten (10) years of brokerage experience in leasing office space in the Atlanta
metropolitan area and which has as its principal business the brokerage of
office space for lease (a "Qualified Broker"). If the parties cannot agree on a
Qualified Broker, then within a second period of seven (7) days, each shall
select a Qualified Broker and within ten (10) days thereafter the two appointed
Qualified Brokers shall select a third Qualified Broker and the third Qualified
Broker shall be the sole arbitrator. If one party shall fail to select a
Qualified Broker within the second seven (7) day period, then the Qualified
Broker chosen by the other party shall be the sole arbitrator.
(iv) Within twenty-one (21) days after submission of the matter to the
arbitrator or by any later date which may be agreed upon in writing by Landlord
and Tenant, the arbitrator shall determine the Market Rate by choosing whichever
of the estimates submitted by Landlord and Tenant the arbitrator judges to be
more accurate. The arbitrator shall notify Landlord and Tenant of its decision,
which shall be final and binding. If the arbitrator believes that expert advice
would materially assist him, the arbitrator may retain one or more qualified
persons to provide expert advice. If Tenant delivers its binding notice of
exercise pursuant to Subsection 32B above, then the fees of the arbitrator and
the expenses of the arbitration proceeding, including the fees of any expert
witnesses retained by the arbitrator, shall be paid by the party whose estimate
is not selected, and each party shall pay the fees of its respective counsel and
the fees of any witness called by that party. If Tenant does not deliver its
binding notice of exercise pursuant to Subsection 32B above, then Tenant shall
pay the fees of the arbitrator and the expenses of the arbitration proceeding,
including without limitation the fees of any expert witnesses retained by the
arbitrator, the
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fees of Tenant's counsel, the reasonable attorneys fees of Landlord's counsel,
the fees of any witness called by Tenant, and the reasonable fees of any witness
called by Landlord.
D. If, after the expiration of the then current Term of this Lease, Tenant shall
have sublet any portion of the Premises within the Building to any person or
entity which in not an Affiliate (as such term defined in Section 17B(b) of this
Lease) of Tenant, then Tenant's options to extend the Term of this Lease for any
and all remaining Renewal Terms shall be null and void and of no further force
or effect. In addition, each of Tenant's options to extend this Lease is also
subject to the conditions that: (i) on the date that Tenant delivers its
non-binding notice described above, Tenant is not in default under this Lease
after the expiration of any applicable notice and cure periods, (ii) on the date
that Tenant delivers its binding notice exercising an option to extend, Tenant
is not in default under this Lease after the expiration of any applicable notice
and cure periods, (iii) Tenant shall not have assigned this Lease to any person
or entity which in not an Affiliate of Tenant, and (iv) except as otherwise
provided in this Subsection D below, Tenant shall not have sublet all or any
portion of the Premises within the Building to any person or entity which is not
an Affiliate of Tenant under a sublease which is effective at any time during
the final twelve (12) months of the then current Term. If Tenant shall have
sublet all or any portion of the Premises within the Building to any person or
entity which in not an Affiliate of Tenant under a sublease which is effective
at any time during the final twelve (12) months of the then current Term, then,
subject to the other provisions of this Section 32 (including without limitation
the penultimate sentence in this Subsection D), Tenant may exercise its option
to extend the Term of the Lease for the next Renewal Term; provided, however,
the duration of such Renewal Term shall be reduced from five (5) years to the
period of time equal to sixty (60) months minus the number of months in the term
of the First Sublease (defined below) from the commencement date thereof through
the end of the then current Term of this Lease. If the duration of such Renewal
Term is reduced as aforesaid, then each of Tenant's remaining options to extend
this Lease is subject to the condition Tenant shall not have sublet all or any
portion of the Premises within the Building to any person or entity which is not
an Affiliate of Tenant under a sublease which is effective at any time during
the final twelve (12) months of the then current Term. The term "First Sublease"
means the first sublease entered into between Tenant and a non-Affiliate during
the last three (3) years of the then current Term and which is effective at the
end of the then current Term. For example, if the First Sublease commences with
forty (40) months remaining in the initial Term, then the duration of the First
Renewal Term shall be twenty (20) months (i.e., 60 - 40 = 20); and for further
illustration purposes, if Tenant shall have sublet all or any portion of the
Premises within the Building to any person or entity which in not an Affiliate
of Tenant under a sublease which is effective at any time during the final
twelve (12) months of said 20-month First Renewal Term, then Tenant's options to
extend the Term of this Lease for all remaining Renewal Terms shall be null and
void and of no further force or effect. Notwithstanding the foregoing to the
contrary, Tenant's option to extend this Lease for a Renewal Term of a reduced
duration as aforesaid is also subject to the conditions that: (i) on the date
that Tenant delivers its non-binding notice described in Subsection 32B(i)
above, no more than six (6) subleases to non-Affiliates of Tenant shall be in
effect, and (ii) on the date that Tenant delivers its binding notice exercising
its option to extend, no more than six (6) subleases to non-Affiliates of Tenant
shall be in effect. Further, notwithstanding anything contained in Section 17 of
the Lease to the contrary, if Tenant leases the Premises for a Renewal Term with
a reduced duration pursuant to the provisions of this Subsection D, then,
without Landlord's prior written consent (which consent Landlord may withhold in
its sole and absolute discretion), no more than six (6) subleases to
non-Affiliates of Tenant affecting the Premises or any portion or portions
thereof shall be in effect at any one time.
E. As used in this Section, "Additional Available Space" shall mean up to 10,000
rentable square feet of contiguous office space in building 300, building 400 or
building 600 in the Development which Landlord notifies Tenant shall be vacant,
unencumbered and available for lease at the commencement of each Renewal Term in
question (the extension option for which Tenant has exercised in accordance with
the provisions of this Section 32 above), which Additional Available Space may
be leased, in whole or in part, to Tenant as provided in this Subsection E. To
exercise the option to lease the Additional Available Space, Tenant must deliver
a binding notice to Landlord contemporaneously with the binding extension
election notice described in Subsection 32B(ii) above that Tenant elects to
expand the Premises to include all or a portion of the Additional Available
Space in accordance with and subject to provisions of this Subsection E. The
exact location, size and configuration of the Additional Available Space to be
leased by Tenant shall be mutually agreed upon by Landlord and Tenant in the
following manner: If Tenant desires to lease Additional Available Space, then
contemporaneously with the delivery to Landlord of
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Tenant's non-binding notice to extend the Term as provided in Subsection
32(B)(ii) above, Tenant shall give Landlord a non-binding notice of such desire.
Within a reasonable period of time after Landlord's receipt of Tenant's
non-binding notice expressing a desire to lease Additional Available Space,
Landlord shall give Tenant written notice of the space in the Development which
shall be Additional Available Space at the commencement of the next Renewal Term
in question. Prior to the delivery to Landlord of its binding extension election
notice described in Subsection 32B(ii) above, Landlord and Tenant shall agree on
the location, size and configuration of the Additional Available Space that
Tenant may lease at the commencement of the next Renewal Term pursuant to this
Subsection E. Without limiting the generality of the foregoing, the following
standards (the "Partial Floor Standard") shall apply to the Additional Available
Space for each Renewal Term in question: (i) all such space shall be contiguous
to itself, (ii) the remaining space on the floor shall be of a size and
configuration which is marketable as office space for lease on reasonable
commercial terms, and (iii) such space shall constitute not less than 2,000
rentable square feet nor more than 10,000 rentable square feet. Tenant does not
have the right pursuant to this Subsection E to lease more than 10,000 rentable
square feet of Additional Available Space at the commencement of any Renewal
Term; however, with Landlord's written consent (which consent Landlord may
withhold in its sole, absolute and arbitrary discretion), Landlord may allow
Tenant to lease more than 10,000 rentable square feet of Additional Available
Space at the commencement of any Renewal Term. The Additional Available Space
shall be measured by the Modified BOMA Standard. If Tenant gives timely notice
that it has exercised its right under this Subsection E and the Premises are
expanded by the addition of any Additional Available Space, then the Additional
Available Space approved by Landlord shall be upon and subject to all of the
provisions of this Lease on the commencement of the Renewal Term in question
(including, without limitation, the Base Rent rate for the Additional Available
Space for the Renewal Term in question shall be the same as the Base Rent rate
for the Premises during such Renewal Term as established in this Section 32
above), excluding with respect to such Additional Available Space (i) the
provisions of Sections 33, 34, 35, 36, 37, 38, 39, 40, 41, 44, 46 and 48 of this
Lease, (ii) the provisions of Appendix C of this Lease, (iii) the provisions of
Appendix J of this Lease, (iv) the provisions of Section 6 of this Lease which
permit food concessions, dining facilities and book stores (it being agreed that
such uses shall not be permitted in the Additional Available Space), and (v) the
provisions of Subsection 2C of this Lease which state that the management fee
component of Operating Costs shall equal 4% of the Base Rent for the Premises
(it being agreed that the management fee component of Operating Costs for the
building in which the Additional Available Space is located shall equal the
actual management fees that Landlord shall pay from time to time with respect to
such building), and, provided further, Tenant shall be entitled to only 3.5
parking spaces per 1,000 rentable square feet contained in the Additional
Available Space leased by Tenant, such spaces to be located in the parking
facilities associated with the building in which the Additional Available Space
leased by Tenant is located. Upon the timely exercise of its right to lease any
Additional Available Space, Landlord and Tenant shall enter into a written
agreement modifying and supplementing this Lease and specifying that the
Additional Available Space in question is a part of the Premises and under this
Lease and containing other appropriate terms and provisions relating to the
addition of such area to this Lease, including, without limitation, increasing,
adjusting or augmenting Rent (including without limitation Base Rent and
Operating Cost Share Rent) as a result of the addition of such space, it being
agreed that the provisions of Section 2 of this Lease with respect to the
payment of Operating Cost Share Rent relating to the Project shall likewise
apply with respect to the Additional Available Space and the Operating Costs for
the building and project in which the Additional Available Space is located and
is a part (with appropriate adjustments in the definition of Operating Costs to
take into account that the Operating Costs relate to the building and project in
which the Additional Available Space is located and is a part). Tenant's
Proportionate Share with respect to the space leased by Tenant in such building
(including the Additional Available Space) shall be obtained by dividing the
rentable square feet of all of the space leased by Tenant in such building
(including the Additional Available Space) by the total number of rentable
square feet in the building in which the Additional Available Space is located,
and multiplying such quotient by 100; the operating expense stop (i.e., the Base
Amount) or base year operating expenses for such building shall be determined in
connection with the calculation of the Market Rate pursuant to Section 32C
above. If Tenant fails to exercise such option as provided in and in strict
accordance with the terms of this Subsection E, or if the conditions in this
Subsection E are not entirely satisfied, the option shall automatically
terminate and be of no further force or effect, or if exercised, shall be null
and void. Tenant's options to lease Additional Available Space at the
commencement of each Renewal Term are subject to the conditions that: (i) on the
date that Tenant delivers its binding notice exercising such expansion option,
Tenant is not in default under this Lease after the expiration of any applicable
notice and cure periods, (ii) Tenant shall not have assigned this Lease to
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any person or entity which is not an Affiliate of Tenant or which is not a
permitted assignee of this Lease arising from the merger or consolidation of
Tenant with another entity, (iii) Tenant shall not have sublet any portion of
the Premises to any person or entity which in not an Affiliate of Tenant under a
sublease which is effective at any time during the final twelve (12) months of
the initial Term or the Renewal Term then in effect, as applicable, and (iv)
Tenant shall have extended the Term for an additional five (5) years pursuant to
the provisions of this Section 32 above contemporaneously with the leasing of
the Additional Available Space in question.
33. Building 400 Facing Sign Rights of Tenant. Landlord hereby grants to Tenant
the right to install and maintain, all at Tenant's sole cost and expense, one
(1) corporate identification sign (the "Building 400 Facing Sign") on the top of
the western face of the Embassy Row 400 building ("Building 400"), upon and
subject to all of the following terms and conditions:
(a) The precise location of the Building 400 Facing Sign shall be subject to the
prior written approval of Landlord (the approved area is herein referred to as
the "Building 400 Facing Sign Area"). Landlord has not made any representations
to Tenant regarding whether or not Legal Requirements permit the Building 400
Facing Sign to be located on Building 400. Landlord does not grant Tenant any
exclusive right under this Section 33, but Landlord agrees that it will allow
only one other tenant to maintain a facing sign on the top of Building 400;
(b) The exact design, weight, size, color, lettering, and manner of installation
and illumination of the Building 400 Facing Sign shall be subject to the prior
written approval of Landlord, which approval shall not be unreasonably withheld.
Without limiting the generality of the foregoing, the Building 400 Facing Sign
shall comply with the specifications set forth in Appendix L, which are hereby
approved by Landlord and Tenant. Tenant shall deliver to Landlord Tenant's plans
and specifications for the installation of the Building 400 Facing Sign for
review and approval by Landlord not less than sixty (60) days prior to
commencing installation of the Building 400 Facing Sign. The Building 400 Facing
Sign shall be installed in strict compliance with the plans and specifications
approved by Landlord, and the installation shall be performed by contractors
approved by Landlord. Landlord shall not charge Tenant for the electricity
consumed by the Building 400 Facing Sign;
(c) Tenant shall, at its sole cost and expense, obtain all governmental permits
or licenses required for the installation, repair, maintenance, operation and
removal of the Building 400 Facing Sign and shall provide Landlord with evidence
thereof. Tenant's installation, repair, maintenance, operation and removal of
the Building 400 Facing Sign shall be subject to and performed in accordance
with the terms and conditions of this Lease and all applicable Legal
Requirements in effect from time to time. Tenant shall, at its sole cost and
expense, and at its sole risk, install and maintain the Building 400 Facing Sign
in a first-class manner, and in compliance with all applicable Legal
Requirements, including, but not limited to, all building, electric,
communications, and safety codes, ordinances, standards, regulations and
requirements of any Governmental Authority. Tenant shall conduct the
installation and maintenance of the Building 400 Facing Sign in a good and
workmanlike manner so as to not interfere with any other tenant or occupant of
Building 400. The operation of the Building 400 Facing Sign shall not disturb or
interfere with the systems of Building 400 or with any other tenant or occupant
of Building 400. In no event shall the installation or operation of the Building
400 Facing Sign damage Building 400 or any portion thereof, or interfere with
the maintenance of Building 400, any system serving Building 400, any radio or
telecommunications equipment currently being operated from or within Building
400 or in any manner invalidate any existing warranties on Building 400 or on
any improvements to Building 400;
(d) The Building 400 Facing Sign installed shall be and remain the property of
Tenant, and Tenant shall, (i) prior to the expiration or termination of this
Lease, or (ii) within ten (10) days after the termination of Tenant's rights
under this Section in accordance with the provisions set forth below, whichever
occurs first, remove the Building 400 Facing Sign (including all installation
and anchoring hardware) installed in the Building 400 Facing Sign Area and
elsewhere in or upon Building 400, and surrender the Building 400 Facing Sign
Area in substantially the same condition existing prior to the installation of
the Building 400 Facing Sign. Tenant shall be liable for, and shall promptly
reimburse Landlord for, the cost of repairing all damage done to the Building
400 Facing Sign Area or to the any other portion of Building 400 by such
removal, including filling and sealing any holes or cavities left by the removal
of installation or anchoring hardware. Any such repairs made by Tenant shall be
subject to Landlord's
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approval, which approval shall not be unreasonably withheld;
(e) Landlord shall not be liable to Tenant for any stoppages or shortages of
electrical power furnished to the Building 400 Facing Sign or to the Building
400 Facing Sign Area because of any act, omission or requirement of the public
utility serving Building 400, or the act or omission of any other tenant,
licensee or contractor of Building 400, or for any other cause beyond the
control of Landlord or such owner, and Tenant shall not be entitled to any
rental abatement for any such stoppage or shortage of electric power;
(f) Tenant shall operate, repair and maintain the Building 400 Facing Sign in
strict compliance with Landlord's reasonable rules and regulations, now or
hereafter promulgated, and all applicable Legal Requirements. Tenant shall, at
Tenant's expense, be solely responsible throughout the Term for maintaining,
servicing and repairing the Building 400 Facing Sign and for repairing any
damage to Building 400 or any systems or equipment serving Building 400 caused
by the Building 400 Facing Sign or by any act, negligence or misconduct of
Tenant, Tenant's employees, agents or contractors, while installing, using,
servicing, repairing, maintaining or removing the Building 400 Facing Sign.
Tenant shall protect, defend, indemnify and save Landlord and its officers,
directors, mortgagees, agents, employees, other tenants, licensees and invitees
harmless from and against any and all obligations, costs (including costs of
litigation and attorneys' fees), expenses, claims, damages and liabilities of
any nature whatsoever arising out of or in connection with the existence,
installation, construction, operation, repair, maintenance and/or removal of the
Building 400 Facing Sign;
(g) Notwithstanding anything to the contrary contained herein, the rights
granted to Tenant in this Section 33 are personal to the Tenant named herein and
shall be deemed null and void in the event of any assignment of this Lease to
any person or entity which is not an Affiliate of Tenant; and
(h) Tenant's rights under this Section shall also automatically terminate upon
the occurrence of any of: (A) Tenant no longer leases at least 75,711 rentable
square feet in the Building, or (B) Tenant or any Affiliate of Tenant no longer
occupies and does business from at least 40,000 rentable square feet in the
Building, or (C) Landlord obtains a judgment against Tenant (which judgment need
not be a judgment not subject to further appeal, and, further, such judgment
need not be a judgment not subject to any pre-appeal or post-judgment motion)
for any monetary default under this Lease and Tenant fails to pay to Landlord
the full amount of such judgment within thirty (30) days after the date of the
judgment. In addition, the rights granted to Tenant in this Section 34 are
personal to the Tenant named herein and may not be transferred to any subtenant
that is not an Affiliate of Tenant.
34. Building 500 Facing Sign Rights of Tenant. Subject to such limitations as
may be imposed by Legal Requirements, Landlord hereby grants to Tenant the right
to install and maintain, all at Tenant's sole cost and expense, two (2)
corporate identification sign (collectively, the "Facing Signs") on the top of
the Building, upon and subject to all of the following terms and conditions:
(a) The precise location of the Facing Signs shall be subject to the prior
written approval of Landlord (the approved areas are herein collectively
referred to as the "Facing Sign Areas"). Landlord has not made any
representations to Tenant regarding whether or not Legal Requirements permit the
Facing Signs to be located on the Building. Landlord has given Tenant notice
that, as of the date of this Lease, Legal Requirements do not permit two (2)
facing signs on the exterior of the Building. Upon Tenant's request, Landlord
shall, at Tenant's sole cost and expense, use reasonable efforts to apply for
and obtain a variance from existing Legal Requirements in order to permit two
(2) facing signs on the exterior of the Building. Any such costs and expenses,
including without limitation reasonable attorneys fees and costs, shall be paid
by Tenant to Landlord upon demand as Additional Rent. Landlord shall not grant
any other tenant the right to install a sign on the Building;
(b) The exact design, weight, size, color, lettering, and manner of installation
and illumination of the Facing Signs shall be subject to the prior written
approval of Landlord, which approval shall not be unreasonably withheld. Without
limiting the generality of the foregoing, the Facing Signs shall comply with the
specifications set forth in Appendix L, which are hereby approved by Landlord
and Tenant. Tenant shall deliver to Landlord Tenant's plans and specifications
for the installation of the Facing Signs for review and approval by Landlord not
less than sixty
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(60) days prior to commencing installation of the Facing Signs. The Facing Signs
shall be installed in strict compliance with the plans and specifications
approved by Landlord, and the installation shall be performed by contractors
approved by Landlord. Landlord shall not charge Tenant for the electricity
consumed by the Facing Signs;
(c) Tenant shall, at its sole cost and expense, obtain all governmental permits
or licenses required for the installation, repair, maintenance, operation and
removal of the Facing Signs and shall provide Landlord with evidence thereof.
Tenant's installation, repair, maintenance, operation and removal of the Facing
Signs shall be subject to and performed in accordance with the terms and
conditions of this Lease and all applicable Legal Requirements in effect from
time to time. Tenant shall, at its sole cost and expense, and at its sole risk,
install and maintain the Facing Signs in a first-class manner, and in compliance
with all applicable Legal Requirements, including, but not limited to, all
building, electric, communications, and safety codes, ordinances, standards,
regulations and requirements of any Governmental Authority. Tenant shall conduct
the installation and maintenance of the Facing Signs in a good and workmanlike
manner so as to not interfere with any other tenant or occupant of the Building.
The operation of the Facing Signs shall not disturb or interfere with the
systems of the Building or with any other tenant or occupant of the Building. In
no event shall the installation or operation of the Facing Signs damage the
Building or any portion thereof, or interfere with the maintenance of the
Building, any system serving the Building, any radio or telecommunications
equipment currently being operated from or within the Building or in any manner
invalidate any existing warranties on the Building or on any improvements to the
Building;
(d) The Facing Signs installed shall be and remain the property of Tenant, and
Tenant shall, (i) prior to the expiration or termination of this Lease, or (ii)
within ten (10) days after the termination of Tenant's rights under this Section
in accordance with the provisions set forth below, whichever occurs first,
remove the Facing Signs (including all installation and anchoring hardware)
installed in the Facing Sign Areas and elsewhere in or upon the Building, and
surrender the Facing Signs Area in substantially the same condition existing
prior to the installation of the Facing Signs. Tenant shall be liable for, and
shall promptly reimburse Landlord for, the cost of repairing all damage done to
the Facing Sign Areas or to the any other portion of the Building by such
removal, including filling and sealing any holes or cavities left by the removal
of installation or anchoring hardware. Any such repairs made by Tenant shall be
subject to Landlord's approval, which approval shall not be unreasonably
withheld;
(e) Landlord shall not be liable to Tenant for any stoppages or shortages of
electrical power furnished to the Facing Signs or to the Facing Sign Areas
because of any act, omission or requirement of the public utility serving the
Building, or the act or omission of any other tenant, licensee or contractor of
the Building, or for any other cause beyond the control of Landlord, and Tenant
shall not be entitled to any rental abatement for any such stoppage or shortage
of electric power;
(f) Tenant shall operate, repair and maintain the Facing Signs in strict
compliance with Landlord's reasonable rules and regulations, now or hereafter
promulgated, and all applicable Legal Requirements. Tenant shall, at Tenant's
expense, be solely responsible throughout the Term for maintaining, servicing
and repairing the Facing Signs and for repairing any damage to the Building or
any systems or equipment serving the Building caused by the Facing Signs or by
any act, negligence or misconduct of Tenant, Tenant's employees, agents or
contractors, while installing, using, servicing, repairing, maintaining or
removing the Facing Signs. Tenant shall protect, defend, indemnify and save
Landlord and its officers, directors, mortgagees, agents, employees, other
tenants, licensees and invitees harmless from and against any and all
obligations, costs (including costs of litigation and attorneys' fees),
expenses, claims, damages and liabilities of any nature whatsoever arising out
of or in connection with the existence, installation, construction, operation,
repair, maintenance and/or removal of the Facing Signs; and
(g) Notwithstanding anything to the contrary contained herein, the rights
granted to Tenant in this Section 34 are personal to the Tenant named herein and
shall automatically terminate and be deemed null and void upon the occurrence of
any of: (A) any assignment of this Lease to any person or entity which is not an
Affiliate of Tenant; (B) Tenant no longer leases at least 75,711 rentable square
feet in the Building, or (C) Tenant or any Affiliate of Tenant collectively no
longer occupy and do business from at least 40,000 rentable square feet in the
Building. In addition, the rights granted to Tenant in this Section 34 are
personal to the Tenant named herein and may not be
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transferred to any subtenant that is not an Affiliate of Tenant.
35. Monument Sign. Landlord shall procure and install, all at its sole cost and
expense, a monument type sign (the "Monument Sign") on the Land for the
exclusive use of Tenant and those certain permitted assignees and subtenants
which qualify under Section 35(e) below to use the Monument Sign, in a location
to be mutually agreed upon by Landlord and Tenant. Landlord and Tenant hereby
approve of the rendering of the Monument Sign and of the location of the
Monument Sign as shown on Appendix M. Tenant shall have the right to procure,
and Landlord shall install and maintain, all at Tenant's sole cost and expense,
Tenant's lettering/sign on the Monument Sign (the "Tenant's Monument Signage"),
upon and subject to the following terms and conditions:
(a) Landlord shall procure and install the Monument Sign on or before August 1,
1998. All costs and expenses in connection with the procurement, installation,
insuring, maintenance and removal of Tenant's Monument Signage shall be the
responsibility of Tenant;
(b) Tenant's Monument Signage shall comply with all Legal Requirements and
Tenant shall obtain any required consents or permits from any applicable
Governmental Authority;
(c) Tenant's Monument Signage shall be located on the Monument Sign in the area
approved by Landlord, which approval shall not be unreasonably withheld, and the
exact manner of installation, design, size, color, lettering, location and
illumination of the Monument Sign and Tenant's Monument Signage shall be subject
to the prior written approval of Landlord (such approval not to be unreasonably
withheld). Without limiting the generality of the foregoing, the Monument Sign
and Tenant's Monument Signage shall not adversely affect or conflict with in any
way the Embassy Row entrances or Embassy Row development identification(s);
(d) Tenant shall pay to Landlord, as additional rental, on a monthly basis, the
actual costs incurred by Landlord in furnishing electric power for the
illumination of the Monument Sign. Landlord shall have the right to install, at
Tenant's expense, a meter to monitor Tenant's use of electricity furnished by
Landlord in the operation of the Monument Sign;
(e) Tenant shall have the right to maintain Tenant's Monument Signage on the
Monument Sign only for so long as (i) this Lease remains in full force and
effect, and (ii) from and after the Commencement Date for Phase 2 of the
Premises,
(A) Tenant and/or its Affiliates are collectively occupying and doing business
in 40,000 rentable square feet or more of the Premises, or
(B) subject to the immediately following sentence, a permitted assignee of this
Lease and/or its Affiliates are collectively occupying and doing business in
40,000 rentable square feet or more of the Premises, or
(C) subject to the immediately following sentence, one (1) permitted subtenant
of Tenant which is not an Affiliate of Tenant is occupying and doing business in
40,000 rentable square feet or more of the Premises.
In addition to the foregoing conditions, the rights granted to Tenant in this
Section 35 are personal to the Tenant named herein and may not be transferred to
any assignee or subtenant that is not an Affiliate of Tenant without the prior
written consent of Landlord. Subject to the other terms and conditions of this
Section 35, Landlord will not unreasonably withhold its consent to such transfer
of Tenant's Monument Signage rights to a permitted assignee of this Lease which
is not an Affiliate of Tenant or to a permitted subtenant of Tenant which is not
an Affiliate of Tenant and which subleases 40,000 rentable square feet or more
of the Premises, it being agreed by Tenant, however, that it shall be reasonable
for Landlord to withhold its consent if the signage proposed by such assignee or
subtenant would contravene any restrictive covenant granted to any other tenant
in the Development or would cause Landlord to be in violation of the provisions
of the lease of any other tenant in the Development relating to signage rights
and restrictions. No consent granted by Landlord shall be deemed to be a consent
to any subsequent transfer of the Tenant's Monument Signage rights. Tenant
shall, at its sole cost and expense, promptly remove the Tenant's
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Monument Signage and repair any damage to the Monument Sign, the Building, the
Land and/or any other portion of the Project caused by or resulting from such
removal if the above conditions do not continue to be satisfied. In the event
Tenant fails to so remove such Tenant's Monument Signage or repair such damage,
Landlord may remove same and make such repairs at Tenant's cost and Tenant shall
pay Landlord on demand as additional Rent the cost of such removal and repairs.
The Monument Sign shall remain the property of Landlord upon the expiration or
earlier termination of this Lease.
36. Rights of First Refusal.
(a) As used herein, the term "First Refusal Space" shall mean the following
described leasable space which is at any point in time, in Landlord's reasonable
determination, unencumbered and legally available for lease:
<TABLE>
<CAPTION>
Approx. Existing Tenant's Current
Embassy Row 300 RSF Lease Expiration Date (Approximately)
- --------------- --- -------------------------------------
<S> <C> <C>
Suite 400 47,296 07/01/02
Suite 100 98,780 09/01/03 (plus two 5-year renewal options)
</TABLE>
<TABLE>
<CAPTION>
Approx. Existing Tenant's Current
Embassy Row 400 RSF Lease Expiration Date (Approximately)
- --------------- --- -------------------------------------
<S> <C> <C>
Suite 250 15,744 01/01/99 (plus one 5-year renewal option)
Suite 300 16,836 04/04/00
Suite 400 12,019 04/01/00
Suite 550 97,520 01/01/04 (plus one 5-year renewal option)
</TABLE>
<TABLE>
<CAPTION>
Approx. Existing Tenant's Current
Embassy Row 600 RSF Lease Expiration Date (Approximately)
- --------------- --- -------------------------------------
<S> <C> <C>
Suite 500 22,831 08/01/01 (plus one 5-year renewal options)
</TABLE>
Upon Tenant's request, Landlord shall update the above schedule to inform Tenant
as to when and what portion of such First Refusal Space is unencumbered and
legally available for lease. Landlord acknowledges that Tenant may wish to
expand the Premises and lease the First Refusal Space or portions thereof.
Tenant, however, acknowledges that Landlord must be in a position to lease the
First Refusal Space to other tenants. In order to accommodate Tenant's desires
regarding the First Refusal Space and Landlord's requirement for future leasing
of the First Refusal Space, Landlord shall grant to Tenant the right of first
refusal (the "Right of First Refusal") to lease the First Refusal Space and
portions thereof in accordance with the terms and conditions contained in this
Section 36. To exercise any Right of First Refusal, Tenant must deliver a
non-binding notice to Landlord not less than six (6) months prior to the
expiration of the term of the lease of the existing tenant of the space in
question, as such expiration date is set forth in the schedule above, that
Tenant desires to lease the First Refusal Space in question. Provided Tenant
timely delivers such notice, in the event the applicable First Refusal Space or
portion thereof becomes unencumbered and legally available for lease, as
determined by Landlord in its reasonable discretion, and in the further event
that Landlord obtains a written offer from a prospective tenant to lease the
First Refusal Space and Landlord desires to accept such offer, then Landlord
shall submit to Tenant in writing the proposed lease term and all of the
material terms and conditions of such proposed offer to lease (hereinafter
referred to as the "Offer") and Tenant shall have the right and option to lease
the First Refusal Space covered by the Offer for the same lease term and upon
the other material terms and conditions (including without limitation, permitted
parking ratio and any offer of free rent and leasehold improvement allowances),
as embodied in the copy of such Offer submitted to Tenant by Landlord, but
otherwise upon the same terms and conditions as this Lease, including Tenant's
permitted use as described in Section 6 of this Lease, provided that Tenant
shall not have the right to use the First Refusal Space or any portion thereof
for food concessions, dining facilities or a book store. Unless the Offer
specifically describes a management fee component of Operating Expenses, the
Offer shall be deemed to include a management fee component of Operating
Expenses equal to the actual management fees that Landlord shall pay from time
to time with respect to building in which the First Refusal Space is located. To
avoid any doubt, Tenant shall not be entitled to any concessions or allowances,
including without limitation any Landlord's Contribution or Additional Tenant
Improvement Allowance or other
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construction obligation under Appendixes C or J hereof, on account of leasing
the First Refusal Space or any portion thereof, except for the concessions or
allowances, if any, which are embodied in the Offer. If Tenant shall elect to
exercise its right to lease the First Refusal Space covered by the Offer,
written notice of such election shall be given to Landlord within ten (10) days
from the time that Tenant first received a copy of the Offer from Landlord
(hereinafter referred to as the "Offer Period"). Tenant's election to lease the
portion of the First Refusal Space in question shall be irrevocable. Upon the
exercise of its right to lease the First Refusal Space covered by the Offer,
Landlord and Tenant shall enter into a written agreement modifying and
supplementing this Lease and specifying that the portion of the First Refusal
Space in question is a part of the Premises and under this Lease and containing
other appropriate terms and provisions relating to the addition of such area to
this Lease, including, without limitation, increasing, adjusting or augmenting
Rent (including without limitation Base Rent and Operating Cost Share Rent) as a
result of the addition of such space, it being agreed that the provisions of
Section 2 of this Lease with respect to the payment of Operating Cost Share Rent
relating to the Project shall likewise apply with respect to the First Refusal
Space and the Operating Costs for the building and project in which the First
Refusal Space is located and is a part (with appropriate adjustments in the
definition of Operating Costs to take into account that the Operating Costs
relate to the building and project in which the First Refusal Space is located
and is a part). Tenant's Proportionate Share with respect to all of the space
leased by Tenant in such building (including the First Refusal Space in
question) shall be obtained by dividing the rentable square feet of all of the
space leased by Tenant in such building (including the First Refusal Space in
question) by the total number of rentable square feet in the building in which
the First Refusal Space is located, and multiplying such quotient by 100; the
operating expense stop (i.e., the Base Amount) or base year operating expenses
for such building shall be the same as set forth in the Offer. In addition,
within ten (10) days after the commencement date for any First Refusal Space,
Landlord and Tenant agree to enter into an amendment to this Lease to document
the commencement date for the First Refusal Space in question pursuant to this
Section 36 in a form similar to Appendix E.
(b) Tenant Improvements shall be constructed by Landlord in the First Refusal
Space substantially in accordance with the provisions set forth in Appendix C,
except (i) Tenant shall not be entitled to any concessions or allowances
(including without limitation any Landlord's Contribution or Additional Tenant
Improvement Allowance) on account of leasing the First Refusal Space or any
portion thereof, except for the concessions or allowances, if any, which are
embodied in the Offer and are expressly and specifically granted to Tenant in
accordance with the terms of this Section 36 as provided above; and (ii) Tenant
shall deliver Plans for the First Refusal Space to Landlord no later than thirty
(30) days after the exercise of the Right of First Refusal in question. The
First Refusal Space shall be measured as stated in the Offer, or if no
measurement standard is stated in the Offer, then by the Modified BOMA Standard.
(c) Each First Refusal Space shall become part of the Premises on the
commencement date applicable to that First Refusal Space, established as
hereinafter provided in this Section 36(c), and shall be leased to Tenant for
the lease term contained in the Offer upon the terms and conditions set forth in
this Section 36. The commencement date for the portion of the First Refusal
Space in question that is leased by Tenant and the date upon which Base Rent,
Operating Cost Share Rent and other items of Rent shall commence to accrue on
that First Refusal Space shall be the date which is the earlier to occur of (A)
the Completion Date of the portion of the First Refusal Space in question or (B)
the date Tenant first occupies any portion of the First Refusal Space in
question for the conduct of its business; provided, however, for purposes
hereof, Tenant shall not be deemed to be occupying the First Refusal Space for
the conduct of its business merely by moving furniture and equipment into such
space. If the commencement date for any First Refusal Space is delayed by reason
of Tenant's default under this Lease or Tenant Delays, commencement of Rent with
respect to the First Refusal Space in question shall be accelerated by the
number of such days of delay.
(d) If a Right of First Refusal pursuant to this Section 36 shall not be
exercised within the Offer Period or shall be waived (no notice is deemed to be
a waiver of such right), then Landlord shall have the right to offer such space
to the prospective tenant upon substantially the same terms and conditions
contained in the Offer submitted to Tenant (the total consideration, taking into
account all concessions, to be paid by the third party tenant to Landlord shall
not be less than 95% of the total consideration, taking into account all
concessions, stated in the Offer waived by Tenant). If a right to lease pursuant
to this Section 36 shall not be exercised within the Offer Period or shall be
waived (no notice is deemed to be a waiver of such right), and Landlord fails to
lease the space covered by the Offer
<PAGE>
Page
within six (6) months after Landlord's submission of a copy of the Offer to
Tenant, then this Section 36 shall be applicable to any subsequent offer to
lease the portion of the First Refusal Space in question.
(e) Notwithstanding the foregoing Right of First Refusal and any other provision
of this Lease to the contrary, such Right of First Refusal is conditioned upon
this Lease being in full force and effect and there being no default under this
Lease which remains uncured after any applicable notice and cure period
expressly provided in this Lease. If (i) Tenant fails to exercise the foregoing
Right of First Refusal as provided in and in strict accordance with the terms of
this Section 36, or (ii) the conditions in this subsection are not entirely
satisfied, then if Tenant exercises the option the notice of exercise shall be
null and void with respect to the portion of the First Refusal Space in
question. The rights granted to Tenant in this Section 36 are personal to the
Tenant named herein, and Tenant shall not have the right to assign its Right of
First Refusal (or any of them) set forth in this Section 36 to any sublessee of
the Premises or any portion thereof or to any assignee of this Lease (except to
a permitted assignee that is an Affiliate of Tenant), nor may any such sublessee
or assignee (except a permitted assignee that is an Affiliate of Tenant)
exercise or enjoy the benefit of such Right of First Refusal (or any of them).
(f) Notwithstanding any other term or provision of this Section 36 or elsewhere
in this Lease, expressed or implied, it is understood and agreed by Tenant that
(i) one or more existing tenants ("Existing Tenants") may have as of the date of
this Lease certain renewal options, extension options, expansion options, rights
to lease and rights of first refusal or offer with respect to the First Refusal
Space, (ii) the rights and interests in and to the First Refusal Space and all
portions thereof granted by Landlord to Tenant in this Section 36 are, in all
respects, subject and subordinate to all such options and rights of the Existing
Tenants and may be wholly or partially rendered void and of no effect by such
options and rights and such other actions, (iii) Landlord shall not be liable
for the failure or inability of Tenant to exercise or benefit from any or all
rights granted in this Section 36 with respect to said First Refusal Space or
any portion thereof by reason of any of the foregoing, and (iv) Tenant shall not
be entitled to any compensation, consolation, consideration, replacement of such
space, or any other remedy from or against Landlord by reason of such failure or
inability.
37. Communications Equipment
(a) During the Term, Landlord shall grant to Tenant a non-exclusive license to
install, maintain, repair, replace and operate such number of satellite
communication dishes, antennae, or microwave dishes (together with any related
wires, conduits and other equipment necessary or desirable for the proper
operation of same, collectively the "Communications Equipment") as Tenant
desires in the conduct of its business in such locations on the roof of the
Building designated by Landlord and reasonably acceptable to Tenant (the
"Equipment Space Area") upon and subject to all of the terms and conditions set
forth in this Section 37.
(b) The Communications Equipment shall be used only by Tenant solely to transmit
and receive aerial transmissions in connection with the business of Tenant;
Tenant shall not have the right to use or allow any other person or entity to
use the Communications Equipment in any manner unrelated to the conduct of
Tenant's business for a fee. The rights under this Section 37 are personal to
the Tenant named herein and are not assignable except to a permitted assignee of
this Lease, a permitted sublessee that is an Affiliate of Tenant, and up to an
aggregate of six (6) communication dishes may be used by permitted non-Affiliate
sublessees of Tenant. Subject to the Building rules and regulations, Tenant, its
employees, agents and contractors shall have the right, upon prior reasonable
notice to Landlord's managing agent, to enter or leave the roof for purposes of
accessing the Communications Equipment. The Communications Equipment installed
shall be and remain the property of Tenant, and Tenant shall, prior to the
expiration or termination of this license, remove the Communications Equipment
(including all installation and anchoring hardware) installed in the Equipment
Space Area and elsewhere in the Building, and surrender the Equipment Space Area
in substantially the same condition existing prior to the installation of the
Communications Equipment. Tenant shall be liable for, and shall promptly
reimburse Landlord for, the cost of repairing all damage done to the Equipment
Space Area or to the Building by such removal, including filling and sealing any
holes or cavities left by the removal of installation or anchoring hardware.
(c) Tenant shall, at its sole cost and expense, obtain all governmental permits
or licenses required for the
<PAGE>
Page
installation, repair, maintenance, operation and removal of the Communications
Equipment and shall provide Landlord with evidence thereof. Landlord agrees to
cooperate with Tenant in obtaining all such permits and authorization, at no
cost or expense to Landlord. Tenant's installation, repair, maintenance,
operation and removal of the Communications Equipment shall be subject to and
performed in accordance with the terms and conditions of this Lease, all
applicable Legal Requirements in effect from time to time, and the reasonable
requirements of Landlord's manager (e.g., Tower Resource Management, Inc. or
such other entity selected by Landlord) under any telecommunications site
management agreement in effect from time to time. Tenant shall, at its sole cost
and expense, and at its sole risk, install the Communications Equipment in a
good and workmanlike manner, and in compliance with all applicable Legal
Requirements, including, but not limited to, all building, electric,
communications, and safety codes, ordinances, standards, regulations and
requirements of the Federal Communications Commission and any other Governmental
Authority. Tenant shall conduct the installation and maintenance of the
Communications Equipment in a good and workmanlike manner so as to not interfere
with any other tenant or occupant of the Building. The operation of the
Communications Equipment shall not disturb or interfere with the systems of the
Building or with any other tenant or occupant of the Building or of any other
building in the Embassy Row development. Tenant shall deliver to Landlord
Tenant's plans and specifications for the installation of the Communications
Equipment and for the aesthetic screening of same for review and approval by
Landlord, which approval shall not be unreasonably withheld, not less than
thirty (30) days prior to commencing installation of the Communications
Equipment. The Communications Equipment shall be installed substantially in
accordance with the plans and specifications approved by Landlord, which
approval shall not be unreasonably withheld, and the installation shall be
performed by contractors approved by Landlord, which approval shall not be
unreasonably withheld. In no event shall the installation or operation of the
Communications Equipment damage the existing structure on the Building, or
interfere with the maintenance of the Building, any system currently serving the
Building, any radio or telecommunications equipment currently being operated
from or within the Building or from any other building in the Embassy Row
development, or in any manner invalidate or otherwise adversely affect any
existing warranties in place on the Building or on any improvements to the
Building.
(d) Landlord shall not be liable to Tenant for any stoppages or shortages of
electrical power furnished to the Communications Equipment or to the Equipment
Space Area because of any act, omission or requirement of the public utility
serving the Building, or the act or omission of any other tenant, licensee or
contractor of the Building, or for any other cause beyond the control of
Landlord, and Tenant shall not be entitled to any rental abatement for any such
stoppage or shortage of electric power. Tenant shall operate the Communications
Equipment in strict compliance with Landlord's reasonable rules and regulations,
now or hereafter promulgated, and all applicable Legal Requirements. Tenant
shall, at Tenant's expense, be solely responsible throughout the Term for
maintaining, servicing and repairing the Communications Equipment and for
repairing any damage to the Building or any systems or equipment serving the
Building caused by the Communications Equipment or by any act, negligence or
misconduct of Tenant, Tenant's employees, agents or contractors, while
installing, using, servicing, repairing, maintaining or removing the
Communications Equipment. Tenant shall protect, defend, indemnify and save
Landlord and its officers, directors, agents, employees, other tenants,
licensees and invitees harmless from and against any and all obligations, costs
(including costs of litigation and attorneys' fees), expenses, claims, damages
and liabilities of any nature whatsoever arising out of or in connection with
the existence, installation, construction, operation, repair, maintenance and/or
removal of the Communications Equipment. Tenant's license under this Section 37
shall automatically terminate upon the end of the Term of this Lease.
(e) Nothing contained in this Section 37 shall be deemed to prohibit or restrict
any other individual or entity, including without limitation Landlord or any
other tenant of the Development, from installing communications equipment on the
roof of the Building or to use the roof for any other purpose (subject to the
provisions of Section 26P of this Lease); provided, however, (i) Landlord shall
not install or permit the installation of communications equipment on the
Building if the proposed equipment is to be used in connection with the business
of a competitor of Tenant, (ii) Landlord shall not install or permit the
installation of communications equipment on the Building if the proposed
equipment will interfere with the operations of the Communications Equipment,
(iii) Landlord shall not install or permit the installation of any
communications equipment on the Building which, in Tenant's reasonable opinion,
adversely affects the aesthetics and appearance of the Building, and (iv)
Landlord shall remove such communications equipment from the roof of the
Building or relocate the same on the roof of the Building if and to
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the extent such removal or relocation is necessary in order to accommodate
Tenant's need for additional Communications Equipment.
38. Staircase. Landlord acknowledges that pursuant to one or more Change Orders
requested by Tenant, the base building plans and specifications will be modified
to require construction of a monumental staircase (the "Staircase") between
floors one and two in the Premises. Provided that Tenant has delivered to
Landlord the required design criteria to Landlord by a deadline hereafter
established by written notice to Tenant, and provided that Landlord approves
such design criteria, Landlord agrees to design and construct, all at Tenant's
sole cost and expense, such approved Staircase, a floor opening for the
Staircase, different lobby finishes (including stone work and wood work), and
other changes to the Base Building relating to such Staircase as reflected in
the approved modified base building plans and specifications (the aggregate
costs incurred by Landlord relating thereto, both hard costs and soft costs,
which shall be established pursuant to the provisions of Appendix C, are herein
collectively referred to as the "Staircase Costs"), subject to the following
additional terms and conditions:
(a) If Tenant shall designate a location for the floor opening which would
require the moving of floor beams or would otherwise compromise the structural
integrity of the Building or the related floor, Landlord may refuse to grant its
approval for same; and
(b) The Staircase Costs shall be payable by Tenant to Landlord as Additional
Rent prior to commencing the work, or if Tenant does not pay all of the
Staircase Costs to Landlord on or before the commencement of such work, then the
Staircase Costs shall be paid out of the Additional Tenant Improvement Allowance
pursuant to the provisions of Appendix C.
39. Additional Restrooms. Landlord acknowledges that pursuant to one or more
Change Orders requested by Tenant, the base building plans and specifications
will be modified to require construction of additional restrooms on the second
floor of the Building (i.e., restrooms in addition to the restrooms initially
contemplated by the base building plans), with at least two lavatories in each
such additional restroom and with finishes identical to the base building
finishes in the other restrooms in the Building (the "Additional Restrooms").
The Additional Restrooms must be added by Tenant in order to comply with Legal
Requirements. The actual aggregate cost (both hard costs and soft costs)
incurred by Landlord to design and construct the Additional Restrooms shall be
established pursuant to the provisions of Appendix C and is herein referred to
as the "Additional Restroom Costs." The Additional Restroom Costs shall be
payable by Tenant to Landlord prior to commencing the work, or if Tenant does
not pay all of the Additional Restroom Costs to Landlord on or before the
commencement of such work, then the Additional Restroom Costs shall be paid out
of the Additional Tenant Improvement Allowance pursuant to the provisions of
Appendix C.
40. Security Desk in Building Lobby. With Landlord's prior written consent
(which consent shall not be unreasonably withheld), Tenant may at its cost and
expense procure and install its own security desk in the lobby of the Building.
If the security desk is installed, Landlord shall enter into a security contract
with a reputable security company to man the security desk on such dates and at
such times as Tenant designates to Landlord in writing sufficiently in advance
of the requirement for the service. Tenant shall pay to Landlord upon demand as
Additional Rent all costs and expenses incurred by Landlord in connection with
such security services. Alternatively, at Tenant's option, Tenant shall either
enter into the security contract with a reputable security company approved by
Landlord (which approval shall not be unreasonably withheld) to man the security
desk or Tenant shall employ its own security guard with prior work experience as
a security guard with a reputable security company, to man the security desk,
all upon and subject to such reasonable rules and regulations as Landlord may
prescribe. Landlord shall not be liable to Tenant for, and Tenant hereby
releases Landlord from any liability to Tenant or loss to Tenant, its agents,
employees and visitors arising out of, losses due to theft, burglary, or damage
or injury to persons or property caused by persons gaining access to the Project
or the Premises.
41. Elevator Card Key System. Upon Tenant's request and with Landlord's prior
written consent (which shall not be unreasonably withheld), Landlord shall
procure and install, all at Tenant's sole cost and expense, an elevator card key
access system for each floor in the Building which is entirely leased by Tenant.
All work to effect
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any such requested changes to the Building elevators shall be performed by
Landlord, and Tenant shall pay to Landlord upon demand as Additional Rent all
costs and expenses incurred by Landlord in connection with such work.
42. Parking.
(a) Landlord shall seek to obtain all necessary consents, approvals, variances
and permits (collectively, the "Parking Deck Construction Permits") to build on
the Land and the adjacent Embassy Row 400 land a three-level (surface level plus
two structural levels) parking deck (the "Parking Deck"). The Parking Deck is
presently designed to contain 383 parking spaces. Landlord may change the design
of the Parking Deck provided that the number of Parking Spaces (defined below)
is not reduced. As of the date of this Lease, Landlord has not obtained the
Parking Deck Construction Permits, although Landlord covenants to use reasonable
efforts to obtain the Parking Deck Construction Permits. Landlord has not made
any representations to Tenant regarding whether or not Legal Requirements will
permit the Parking Deck or whether or not Landlord will be successful in
obtaining the Parking Deck Construction Permits. If Landlord obtains all Parking
Deck Construction Permits, then Landlord shall promptly commence and diligently
complete construction of the Parking Deck soon as reasonably practicable under
all of the circumstances. If Landlord does not obtain the Parking Deck
Construction Permits, then Landlord shall not be obligated to commence
construction of the Parking Deck or to complete construction of the Parking
Deck, and this Lease shall not be void or voidable, nor shall Landlord be liable
to Tenant for any resulting loss or damages. If Landlord has not obtained Fulton
County zoning modification approval for the Parking Deck on or before April 2,
1998, then Landlord and Tenant shall each have the right to terminate this Lease
by giving written notice to the other party at any time thereafter but prior to
Landlord obtaining the Parking Deck Construction Permits, and Landlord and
Tenant shall thereupon be released from all obligations under this Lease,
provided that any such termination notice by Tenant shall not be effective
unless the termination notice is accompanied by a certified check made payable
to Landlord in the amount of $67,500.00, such sum representing Tenant's share of
certain costs incurred by Landlord under this Lease (and is in lieu of any
amount due by Tenant under that certain letter agreement between Landlord and
Tenant dated December 30, 1997); and provided, further, if Landlord obtains
Fulton County zoning modification approval (or acceptable substitute
governmental approval) for the Parking Deck within fifteen (15) days after
Landlord's receipt of any such termination notice from Tenant, then such
termination notice shall be vitiated and this Lease shall remain in full force
and effect. In addition, if Landlord in its reasonable discretion concludes
that, notwithstanding the exercise of reasonable efforts to obtain the Parking
Deck Construction Permits, Landlord will not be successful in such efforts, then
Landlord shall have the right to terminate this Lease by notice to Tenant, and
Landlord and Tenant shall thereupon be released from all obligations under this
Lease.
(b) As used herein, the term"Parking Spaces" shall mean 7.96 parking spaces per
1,000 rentable square feet in the initial Premises located in the Building
(expressly excluding any expansion space not located in the Building) leased
from time to time pursuant to the provisions of this Lease, such Parking Spaces
to be located in the Parking Deck and in the other parking facilities located on
the Land from time to time associated with the Building, all of which shall be
non-designated spaces, except as otherwise expressly provided in Section 42(e)
below. Tenant and its agents, employees, contractors, invitees and licensees may
not use additional parking spaces without the prior written consent of Landlord.
Tenant and its agents, employees, contractors, invitees or licensees shall not
interfere with the rights of Landlord or others entitled to similar use of the
parking facilities. Notwithstanding the foregoing to the contrary, if any
portion of the Parking Deck and/or surface parking lot surrounding the Building
is taken by eminent domain or deed in lieu thereof, then the number of Parking
Spaces made available to Tenant shall be reduced to such number of Parking
Spaces as will allot Tenant the same percentage of the total parking spaces in
such surface lot and Parking Deck after the taking as Tenant had before the
taking (for illustration purposes, if 7.96 parking spaces per 1,000 rentable
square feet in the initial Premises represents 90% of the total spaces in
surface lot and Parking Deck before the taking, and if 6.0 parking spaces per
1,000 rentable square feet in the initial Premises represents 90% of the total
spaces in surface lot and Parking Deck after the taking, then Tenant shall only
be entitled to 6.0 parking spaces per 1,000 rentable square feet in the initial
Premises after the taking); provided, always, nothing contained in this
paragraph is intended or shall be construed to affect in any way Tenant's
express rights under Section 10 of the Lease to terminate this Lease and to have
Rent reduced following certain types of condemnations or takings as described in
Section 10.
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(c) All parking facilities furnished by Landlord shall be subject to the
reasonable control and management of Landlord, who may, from time to time,
establish, modify and enforce reasonable rules and regulations with respect
thereto, provided that there shall be no charge to Tenant or its employees or
invitees for use of the Parking Spaces during the Term (including any extensions
and renewals thereof), except in connection with Operating Costs and except for
the reasonable cost of any access cards. Landlord further reserves the right to
change or reconfigure the parking facilities and designate the parking spaces
therein, to construct or repair any portion thereof, and to restrict or
eliminate the use of any parking areas and do such other acts in and to such
areas as Landlord deems necessary or desirable without such actions being deemed
an eviction of Tenant or a disturbance of Tenant's use of the Premises and
without Landlord being deemed in default hereunder; provided, however, the
number of Parking Spaces as set forth in Section 42(b) above shall be maintained
throughout the Term (including any extensions and renewals thereof).
(d) If parking spaces are not assigned pursuant to the terms of this Lease,
Landlord reserves the right at any time to assign parking spaces, and Tenant
shall thereafter be responsible to insure that its employees park in the
designated areas. Landlord shall not be liable for any damage of any nature to,
or any theft of, vehicles, or contents thereof, in or about such parking
facility.
(e) Five (5) of Tenant's Parking Spaces in close proximity to the Building
loading dock shall be designated for the exclusive use of Tenant's couriers
and/or mail service. Landlord shall not be required to police or enforce such
designated reserved spaces. Subject to Legal Requirements, Landlord shall use
reasonable efforts to designate seven (7) parking spaces in close proximity to
the front and/or side of the Building as visitor parking spaces.
43. Non-Disturbance Agreement. This Lease shall be prior to and superior to any
mortgage now or hereafter encumbering or affecting the Premises; provided,
however, Tenant agrees that upon request from the Landlord or from the holder or
proposed holder of any mortgage, Tenant shall execute a subordination,
non-disturbance and attornment agreement ("non-disturbance agreement") in form
reasonably satisfactory to the mortgagee and mortgagee's counsel, subordinating
this Lease to such mortgage and to the interest of such holder and its heirs,
successors and assigns. Tenant's obligation to execute and deliver a
non-disturbance agreement pursuant to the preceding sentence is expressly
conditioned upon Landlord and such other requesting party also executing and
delivering such non-disturbance agreement. Tenant hereby agrees that the form of
the non-disturbance agreement annexed to this Lease as Appendix I is
satisfactory to Tenant and Tenant's counsel in all respects and will satisfy, in
full, the requirements of this Lease, including the provisions of this Section,
relating to the delivery of a non-disturbance agreement. With respect to Section
8 (Certifications) of the non-disturbance agreement annexed to this Lease as
Appendix I, Tenant shall not be required to make any certification therein which
is not true and correct. Landlord will join in the signing of the
non-disturbance agreement.
44. Operating Cost Share Rent During Initial 24 Months of Term. Notwithstanding
anything containing in Section 2 of this Lease to the contrary:
(a) No Operating Cost Share Rent shall be due or payable prior to the second
anniversary of the Commencement Date for Phase 1 of the Premises;
(b) The payment of Operating Cost Share Rent with respect to the initial 24
months of the Term shall be due and payable on the second anniversary of the
Commencement Date for Phase 1 of the Premises; and
(c) The amount of the Operating Cost Share Rent which shall be due and payable
by Tenant on the second anniversary of the Commencement Date for Phase 1 of the
Premises shall be equal in amount to the excess, if any, of (i) the Operating
Costs for the 24-month period beginning on the Commencement Date for Phase 1 of
the Premises and ending on the second anniversary of the Commencement Date for
Phase 1 of the Premises, over (ii) Nine Hundred Thousand Dollars ($900,000.00).
Following such second anniversary date, Landlord shall provide a statement to
Tenant showing the amount, if any, of such Operating Cost Share Rent which is
due and payable by Tenant, and within ten (10) days after receiving such
statement from Landlord, Tenant shall pay Landlord the
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amount of Operating Cost Share Rent as shown in such statement. If the Operating
Costs for the 24-month period beginning on the Commencement Date for Phase 1 of
the Premises and ending on the second anniversary of the Commencement Date for
Phase 1 of the Premises are less than Nine Hundred Thousand Dollars
($900,000.00), then Tenant shall be granted a credit against Operating Cost
Share Rent next becoming due under this Lease in an amount equal to the dollar
amount of any such difference; and
(d) In addition to the amount due Landlord by Tenant pursuant to the provisions
of this Section 44 above, the provisions of Section 2 of the Lease with respect
to the method of billing and payment of Operating Cost Share Rent by Tenant
shall be applicable on the second anniversary of the Commencement Date for Phase
1 of the Premises and continuing thereafter throughout the balance of the Term.
45. Tenant Termination Right. If the Completion Date for Phase 1 of the Premises
has not occurred on or before July 6, 1999 (the parties specifically intending
to insert the date "July 6, 1999" and not the date "July 6, 1998") for any
reason whatsoever other than due to Tenant Delay, Tenant, at its option at any
time thereafter but prior to the Completion Date for Phase 1 of the Premises,
may terminate this Lease by notice to Landlord, and Landlord and Tenant shall
thereupon be released from all obligations under this Lease.
46. Telephone Service. As long as Tenant is leasing all of the rentable area in
the Building, with Landlord's prior written consent (which consent shall not be
unreasonably withheld) and subject to compliance with all applicable Legal
Requirements, Tenant shall have the right to contract with alternate providers
of local telephone service for the provision of, without limitation, telephone,
data, information or other telecommunication services to the Premises. With
Landlord's prior written consent (which consent shall not be unreasonably
withheld), and subject to such reasonable rules and regulation as may be
promulgated by Landlord, Landlord shall allow such telecommunications equipment
to be installed in the Building's risers and other areas approved by Landlord
for the provision of such services to the Premises. The exercise and enjoyment
of the rights under this Section 46 shall be at Tenant's sole cost and expense.
47. Electric Service. Landlord has advised Tenant that, as of the date of this
Lease, Georgia Power Company (the "Current Electric Service Provider") is the
utility company selected by Landlord to provide electricity service for the
Development, including the Building. Notwithstanding the foregoing, as long as
Tenant is leasing all of the rentable area in the Building, and subject to the
terms and conditions of this Section 47, Tenant shall have the right at any time
and from time to time during the term of this Lease to require that Landlord
contract for service from a different company or companies providing electricity
service (each an "Alternate Service Provider"), but only if and to the full
extent permitted by applicable Legal Requirements. If an Alternate Service
Provider is willing and able to provide such electricity service to the
Building, then Landlord shall, at Tenant's sole cost and expense, contract with
such Alternate Service Provider to provide electricity service to the Building;
provided, however, Landlord shall not be required to contract with the Alternate
Service Provider if it would adversely affect Landlord in any way. Tenant shall
fully cooperate with Landlord, the Current Service Provider, and any Alternate
Service Provider at all times and, as reasonably necessary, shall allow
Landlord, the Current Service Provider, and any Alternate Service Provider
reasonable access to the Building's electric lines, feeders, risers, wiring, and
any other machinery within the Premises. Landlord shall in no way be responsible
or liable for any damage, loss, cost or expense which Tenant may sustain or
incur by reason of any change, failure, interference, disruption, or defect in
the supply or character of the electric energy furnished to the Premises, or if
the quality or character of the electric energy supplied by the Current Electric
Service Provider or any Alternate Service Provider is no longer available or
suitable for Tenant's requirements, and no such change, failure, defect,
unavailability, or unsuitability shall constitute an actual or constructive
eviction, in whole or in part, or entitle Tenant to any abatement or diminution
of Rent, or relieve Tenant from any of its obligations under this Lease. The
exercise and enjoyment of the rights under this Section 47 shall be at Tenant's
sole cost and expense.
48. Right of First Offer to Purchase.
(a) Except as hereinafter provided, during the Term of this Lease and provided
that (i) Tenant shall not be in default (after any applicable notice and cure
period) under this Lease on the date Tenant elects to purchase the Land
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and Building in accordance with the provisions of this Section 48 or on the date
of the closing of the purchase and sale, (ii) the original named Tenant herein
or its Affiliate is leasing all of the rentable square feet in the Building, and
(iii) Tenant shall not have assigned this Lease to any person or entity that is
not an Affiliate of Tenant, Landlord shall not transfer or convey its fee title
to the Land and the Building in a Single Asset Transaction (as such term is
hereinafter defined) without first complying with the provisions of this Section
48. As used herein, the term "Single Asset Transaction" shall mean a sale
transaction that does not involve any land or improvements other than the Land
and Building. Landlord covenants with Tenant that Landlord shall not include
additional land or additional improvements in the proposed sale transaction for
the sole purpose of nullifying Tenant's right of first offer under this Section
48. Should Landlord desire to so transfer or convey the Land and the Building in
a Single Asset Transaction, Landlord shall give Tenant notice thereof, which
notice shall specify the cash consideration which Landlord would accept for the
transfer and conveyance of the Land and the Building to Tenant, free of mortgage
debt. Tenant shall have thirty (30) days after such notice (the "Due Diligence
Period") in which to elect either to purchase the Land and the Building for such
cash consideration or to elect not to so purchase. During the Due Diligence
Period, Tenant shall, if and to the extent it desires to do so, independently
obtain, perform and approve at its sole expense:
(i) engineering reports, including, without limitation, an inspection of the
structure and integrity of the Building, including foundation, walls, roof,
floors and supports; inspection of all mechanical systems, including heat, HVAC
and electrical; and inspection of water and sewer systems;
(ii) all architectural reports and surveys as Tenant deems necessary;
(iii) all environmental inspections and reports as Tenant and its inspectors
deem necessary of the Building and the Land; and
(iv) title examinations, reports and commitments for title insurance.
(b) Upon request, Landlord shall furnish to Tenant, at Tenant's expense, copies
of the foregoing due diligence items which are in Landlord's possession. All of
the above inspections and reports shall be performed at reasonable times during
normal business hours upon no less than forty-eight (48) hours prior notice to
Landlord and shall not interfere with Landlord's business operations at the
Development. Tenant may not perform any soil boring tests without the prior
written consent of Landlord, which consent shall not be unreasonably withheld.
Tenant shall, at Tenant's sole expense, repair any damage caused by such soil
boring tests to the reasonable satisfaction of Landlord. Tenant further agrees
to repair any damage to the Building, the Land or the other portions of the
Development and to defend, indemnify and hold Landlord harmless for any damage,
loss, cost, claim or fee (including attorney's fees) arising from any and all of
the above inspections and reports and any other inspections and reports
performed by or at the request of Tenant, its agents, contractors and employees
(including, but not limited to, accountants, appraisers, engineers and
architects).
(c) Failure of Tenant to respond to Landlord within the Due Diligence Period
shall be conclusively deemed to constitute Tenant's election not to so purchase.
(d) If Tenant elects to so purchase, then a closing of such purchase and sale
shall be held within fifteen (15) days of the expiration of the Due Diligence
Period at a time and place in Atlanta, Georgia selected by Landlord. At such
closing, Landlord shall transfer by limited warranty deed fee simple title to
the Land and Building, subject to the following matters: (a) matters of record
encumbering such title; (b) zoning regulations, building codes and similar
ordinances (including any violations thereof); (c) all matters which would be
disclosed by a current and accurate survey and inspection of said property; (d)
rights of parties in possession of said property; (e) the lien of current years
ad valorem taxes; (f) tenant leases; and (g) inchoate mechanics and materialmen'
liens. All mortgages or other encumbrances to secure debt shall be paid out of
the sales proceeds if not discharged by Landlord prior to such conveyance.
Tenant shall assume all of Landlord's duties and obligations under all leases
and service contracts for such property. Rent, taxes, utilities and service
charges shall be prorated as of the date of closing. All recording costs, taxes
and fees shall be borne by Tenant, with the exception of the Georgia transfer
tax, which shall be paid by
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Landlord. Landlord and Tenant agree to execute such other and further
documentation as shall be necessary or advisable to effectuate the foregoing as
reasonably requested by the other party, including without limitation a
reciprocal easement agreement relating to ingress and egress, parking rights in
the Parking Deck, and the costs associated with the Parking Deck (any such
agreement shall provide, inter alia, that Tenant's parking ratio and obligation
to share costs relating to the Parking Deck [including taxes thereon and the
cost of maintaining, repairing, insuring, and operating the Parking Deck] shall
be substantially the same as provided by this Lease).
(e) If Tenant elects not to so purchase, Landlord shall be free to sell such
property to any person within one (1) year of Landlord's notice to Tenant so
long as the consideration paid by the purchaser is not less than ninety percent
(90%) of the amount stated in Landlord's notice to Tenant, even if such
consideration is not all cash, as, for example, purchase money financing or a
property exchange, but in such cases, the non-cash consideration shall be
converted to the reasonable cash equivalent thereof for purposes of determining
whether such 90% test has been met. At any time, Landlord may send a new notice
to Tenant, and if Tenant elects not to so purchase, such one year period shall
commence anew. While no consent or waiver of Tenant shall be required, Tenant
agrees to certify to any such purchaser in writing whether the provisions hereof
have been complied with by Landlord.
(f) This Section 48 shall not apply to any sale, leasing of the entire Building
and/or the Land or other transfer between or among any current or future
partners in Landlord, the successors of current or future partners, or entities
which are affiliated with any such partners or successors, but any such transfer
shall not relive the successor in title of its obligation to comply with this
Section 48. This Section 48 shall not apply to any leasing of less than all of
the Building or to the grant of easements, covenants or other encumbrances which
do not result in the divestment of substantially all of the interest of Landlord
in the Building and this Section 48 shall not apply to any sale transaction that
involves land and/or improvements in addition to the Land and Building. If the
property is sold or transferred after a right of first offer to purchase is
afforded to Tenant under this Section 48 and Tenant either waives or declines to
purchase, then this provision shall expire and become null and void, and the
purchaser or grantee shall take free of this Section 48. Further, this Section
48 shall not be applicable to any financing transaction where a deed to secure
debt, security deed, security agreement, mortgage, sale and leaseback or other
financing instrument (hereinafter referred to as a "security instrument") is
granted to encumber the Land or the Building or both or parts thereof or
interests therein or interests in Landlord as security for debt and/or
obligations, and it shall not apply to any foreclosure sale or deed in lieu of
foreclosure under any such security instrument. It is intended that this Section
48 is unconditionally subordinate and inferior to any security instrument now or
hereafter granted on any of the aforementioned properties or interests, and this
Section 48 shall be extinguished upon a foreclosure sale or deed in lieu of
foreclosure under a security instrument.
APPENDIX G
BASE RENT SCHEDULE
The annual Base Rent during the initial Term is equal the product of (a) the
applicable Base Rent rate per rentable square foot per annum for each respective
year set forth below multiplied by (b) the number of rentable square feet then
existing in the Premises, to wit (the Commencement Date for Phase 1 of the
Premises is abbreviated below as "CD 1"):
<TABLE>
<CAPTION>
Base Rent Rate Per Annum
Period Per Rentable Square Foot
- ------ ------------------------
<S> <C>
CD 1 - 12/31/98 $23.42
1/1/99 - 6/30/99 $24.65
7/1/99 - 6/30/00 $24.65
7/1/00 - 12/31/00 $26.50
1/1/01 - 12/31/01 $26.82
1/1/02 - 12/31/02 $27.14
1/1/03 - 12/31/03 $27.48
</TABLE>
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<TABLE>
<CAPTION>
Base Rent Rate Per Annum
Period Per Rentable Square Foot
- ------ ------------------------
<S> <C>
1/1/04 - 12/31/04 $27.81
1/1/05 - 12/31/05 $28.16
1/1/06 - 12/31/06 $28.53
1/1/07 - 12/31/07 $28.89
1/1/08 - 12/31/08 $29.26
1/1/09 - End of initial Term $29.63
</TABLE>
With respect to Phase 1 of the Premises, the Base Rent for each twelve-month
period shall be paid in twelve (12) equal monthly installments in advance on the
first day of each calendar month, commencing on the Commencement Date for Phase
1 of the Premises and continuing thereafter throughout the Term.
With respect to Phase 2 of the Premises, the Base Rent for each twelve-month
period shall be paid in twelve (12) equal monthly installments in advance on the
first day of each calendar month, commencing on the Commencement Date for Phase
2 of the Premises and continuing thereafter throughout the Term.
With respect to Phase 3 of the Premises, the Base Rent for each twelve-month
period shall be paid in twelve (12) equal monthly installments in advance on the
first day of each calendar month, commencing on the Commencement Date for Phase
3 of the Premises and continuing thereafter throughout the Term.
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NOTE: The above Base Rent schedule includes Tenant's share of the cost of the
Parking Deck. It does NOT include any Additional Rent which may be payable by
Tenant pursuant to the provisions of Section 2.2 of Appendix C of this Lease.
APPENDIX H
LEGAL DESCRIPTION OF LAND
APPENDIX I
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (hereinafter
referred to as this "Agreement"), made as of the 16th day of February, 1998, by
and among __________________________(hereinafter referred to as "Lender") under
the Loan Documents (as defined below), ____________________, a
_____________________(hereinafter referred to as "Landlord") and
________________, a _________________(hereinafter referred to as "Tenant").
W I T N E S S E T H:
WHEREAS, Lender is now the owner and holder of that certain note (the "Note") of
the Landlord and a first deed to secure debt and security agreement more
particularly described on Exhibit "A" annexed hereto (said deed to secure debt
and security agreement, as it may be amended, increased, renewed, modified,
consolidated, replaced, combined, substituted, severed, split, spread or
extended, being herein called the "Deed", and the Note, Deed and all other
documents and instruments evidencing, securing or otherwise relating to the loan
which is the subject of the Note and the Deed are collectively referred to
herein as the "Loan Documents") covering certain real property more particularly
described on Exhibit "B" annexed hereto (the "Property"); and
WHEREAS, Tenant is the lessee or tenant under a certain lease made by Landlord,
as the original lessor or landlord, which lease (including any modifications or
amendments thereof) and the portion of the Property therein leased (the "Demised
Premises") are more particularly described on Exhibit "C" annexed hereto (as
such lease may hereafter be amended, modified or supplemented by written
agreement, from time to time, among Landlord and Tenant and consented to in
writing by Lender, the "Lease"); and
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WHEREAS, Tenant, Landlord and Lender desire to confirm their understanding with
respect to the Lease and the Deed.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Non-Disturbance. So long as Tenant is not in default (as described in Section
12 of the Lease, which term "default" shall mean beyond any applicable period
given Tenant to cure such default as provided in the Lease) in the payment of
base rental or additional rental or in the performance of any of the terms,
covenants or conditions of the Lease on Tenant's part to be performed: (a)
Tenant's possession or occupancy of the Demised Premises and Tenant's rights and
privileges under the Lease, or any extensions or renewals thereof which may be
effected in accordance with any option therefor in the Lease, shall not be
terminated, diminished or interfered with by Lender in the exercise of any of
Lender's rights under the Deed; and (b) Lender will not join Tenant as a party
defendant in any action or proceeding for the purpose of terminating Tenant's
interest under the Lease because of any default under the Deed.
2. Attornment. If (a) any proceedings are brought for the foreclosure of the
Deed or (b) the Property is conveyed by deed in lieu or assignment in lieu of
foreclosure (or similar device), Tenant shall attorn to and recognize the Lender
[or any other holder of the Note or its nominee], its nominee, or such
purchaser, as the case may be, as the landlord under the Lease for the remainder
of the term thereof, and Tenant shall perform and observe its obligations
thereunder, subject only to the terms and conditions of the Lease. Such
attornment shall be effective and self-operative without the execution of any
further instrument on the part of any of the parties hereto. Tenant agrees,
however, to execute and deliver at any time, and from time to time, upon the
request of Landlord, Lender or of any other holder of any of the indebtedness or
other obligations secured by the Deed or any such nominee or purchaser, any
instrument or certificate which, in its sole judgment, Landlord, Lender, such
other holder, or such nominee or purchaser, as the case may be, deems to be
necessary or appropriate in any such foreclosure proceeding or conveyance or
assignment in lieu of foreclosure (or similar device) or otherwise to evidence
such attornment. To the extent permitted by applicable law, Tenant waives the
provisions of any statute or rule of law now or hereafter in effect that may
give or purport to give it any right or election to terminate or otherwise
adversely affect the Lease or the obligations of Tenant thereunder by reason of
any foreclosure or other proceedings for enforcement of the Deed or the taking
of a deed or assignment in lieu of foreclosure (or similar device).
3. Liability of Lender. If Lender [or any other holder of the Note or its
nominee] or its nominee shall succeed to the interests of Landlord under the
Lease in any manner, or if any purchaser acquires the Property or any part
thereof including the Demised Premises upon any foreclosure of the Deed or by a
conveyance or assignment in lieu of such foreclosure (or similar device),
Lender, its nominee, such other holder [or its nominee], or such purchaser, as
the case may be, shall have the same remedies by entry, action, or otherwise in
the event of any default by Tenant (beyond any period given Tenant to cure such
default) in the payment of base rental or additional rental or in the
performance of any of the terms, covenants and conditions of the Lease on
Tenant's part to be performed that Landlord had or would have had if Lender, its
nominee, such other holder [or its nominee] or such purchaser, as the case may
be, had not succeeded to the interest of Landlord. From and after such
attornment, Lender, its nominee, such other holder [or its nominee] or such
purchaser, as the case may be, shall be bound to Tenant under all the terms,
covenants and conditions of the Lease. Except as herein provided, Tenant shall,
from and after the succession to the interest of Landlord under the Lease by
Lender, its nominee, or such other holder [or its nominee] or such purchaser, as
the case may be, have the same remedies against Lender, its nominee, such other
holder [or its nominee] or such purchaser, as the case may be, for the breach of
any agreement contained in the Lease that Tenant might have had under the Lease
against Landlord if Lender, its nominee, such other holder [or its nominee] or
such purchaser, as the case may be, had not succeeded to the interest of
Landlord; provided, however, that Lender, its nominee, such other holder [or its
nominee] or such purchaser, as the case may be, shall not be:
(i) obligated to cure any defaults under the Lease of any prior landlord
(including Landlord), but nothing is this clause (i) shall release Lender from
its obligation under the Lease to cure defaults under the Lease committed or
continued thereunder by Lender, provided that Lender shall not be obligated to
cure any defaults under the Lease of
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any prior landlord;
(ii) liable for any act or omission of any prior landlord (including Landlord)
except to the extent (and for the time period) that Lender continues such act or
omission, provided, however, nothing contained in this clause (ii) is intended
or shall be construed to affect or diminish the right of Tenant to make
Permitted Offsets (as such term is defined in clause (iii) below);
(iii) subject to any offsets or defenses which Tenant might have against any
prior landlord (including Landlord), except those offsets which Tenant is
expressly permitted to make pursuant to the provisions of the Lease which arose
out of Landlord's default under the Lease, provided that Tenant has promptly
thereafter notified Lender and given Lender an opportunity to cure same as
provided in Section 7 below, and except to the extent (and for the time period)
that Lender continues any such prior default which gives rise to such offset
(collectively, the "Permitted Offsets");
(iv) bound by any base rental or additional rental which Tenant might have paid
for more than the current month to any prior landlord (including Landlord);
(v) bound by any amendment or modification of the Lease made without Lender's
prior written consent;
(vi) bound by any warranty or representation of any prior landlord (including
Landlord) relating to work performed by any prior landlord (including Landlord)
under the Lease, provided, however, nothing contained in this clause (vi) is
intended or shall be construed to affect or diminish the right of Tenant to make
Permitted Offsets; or
(vii) responsible for security deposits or other refundable fees unless paid
over to Lender, provided, however, nothing contained in this clause (vii) is
intended or shall be construed to affect or diminish the right of Tenant to make
Permitted Offsets.
4. No Affect on Security Title and Lien of Deed. Nothing herein contained shall
in any way impair or affect the security title and lien created by the Deed
except as may be specifically set forth herein. Nothing herein contained is
intended, nor shall be construed, to abridge or adversely affect any right or
remedy of Landlord under the Lease in the event of any default by Tenant (beyond
any period given Tenant to cure such default) in the conditions of the Lease on
Tenant's part to be performed.
5. Subordination. Tenant hereby covenants and agrees that the Lease, together
with all rights, title, interests, estates, options, liens and charges created
thereby, is hereby expressly made, now is and shall at all times continue to be
subject and subordinate in all respects to the Loan Documents, the Deed, the
Note, all sums advanced under the Note, and all other documents and instruments
evidencing or securing (or to evidence or secure) the indebtedness evidenced by
the Note and secured by the Deed and to all amendments, consolidations,
extensions, replacements, modifications, renewals, recastings, refinancings,
transfers and assignments thereof. Tenant, upon request, shall execute and
deliver any certificate or other instrument whether or not in recordable form
which Lender may request to perfect, confirm or effectuate said subordination.
The Loan Documents shall be superior to the right, title, interest and estate of
Tenant in and to the Demised Premises by virtue of the Lease. The Loan Documents
may be amended from time to time without the consent of Tenant.
6. Notices. Any notice or communication required or permitted hereunder shall be
given in writing, hand delivered, sent by any overnight courier service
providing dated evidence of delivery, or sent by United States mail, postage
prepaid, registered or certified mail, return receipt requested, addressed as
set forth on Exhibit "D" annexed hereto, or to such other address or in care of
such other person as hereafter shall be designated in writing by the applicable
party sent in the manner in this Paragraph 6 provided and shall be deemed to
have been given as of the date of receipt. Rejection or other refusal to accept
or inability to deliver because of changed address of which no notice has been
received shall constitute receipt.
7. Default by Landlord. So long as the Deed remains outstanding and unsatisfied,
Tenant will mail or deliver
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to Lender, at the address and in the manner herein provided, a copy of all
notices permitted or required to be given to Landlord by Tenant under and
pursuant to the terms and provisions of the Lease. In addition thereto, so long
as the Deed remains outstanding and unsatisfied, Tenant will mail or deliver to
Lender, at the address and in the manner hereinabove provided, written notice of
any default or claimed default of Landlord under the Lease (whether or not
Tenant is obligated under the Lease to give written notice thereof to Landlord).
If Landlord shall fail to cure any default within the time prescribed by the
Lease, Tenant shall give further notice of such fact to Lender. At any time
before the rights of Landlord shall have been forfeited or adversely affected
because of any default of Landlord, or within the time permitted Landlord for
curing any default under the Lease as therein provided (but not less than thirty
(30) days from the receipt of notice), Lender may, but shall have no obligation
to, pay any taxes and assessments, make any repairs and improvements, make any
deposits or do any other act or thing required of Landlord by the terms of the
Lease, and all payments so made and all things so done and performed by Lender
shall be as effective to prevent the rights of Landlord from being forfeited or
adversely affected because of any default under the Lease as the same would have
been if done and performed by Landlord. Tenant agrees that notwithstanding any
provisions of the Lease, no notice of cancellation shall be effective unless
Lender has received notice as herein provided, and Lender has failed within
sixty (60) days of its receipt of such notice to cure the default, or if the
default cannot be cured within sixty (60) days, has failed to commence and
diligently prosecute the curing of the default (which may include, but not be
limited to, commencement of foreclosure proceedings, if necessary to effect such
cure) which gave rise to such right of cancellation.
8. Certifications. Tenant hereby certifies to Lender that the Lease has been
duly executed by Landlord and Tenant and is in full force and effect; that the
Lease and any modifications and amendments specified herein are a complete
statement of the agreement between Landlord and Tenant with respect to the
leasing of the Demised Premises, and the Lease has not been modified or amended
except as specified herein; that to the knowledge of Tenant, no party to the
Lease is in default thereunder; that no rent under the Lease has been paid more
than thirty (30) days in advance of its due date; and that Tenant, as of this
date, has no charge, lien or claim of offset under the Lease, or otherwise,
against the rents or other charges due or to become due thereunder. Landlord
hereby certifies to Lender that a true and correct copy of the Lease has been
delivered to Lender; that the Lease has been duly executed by Landlord and is in
full force and effect; that the Lease is a complete statement of the agreement
between Landlord and Tenant with respect to the leasing of the Demised Premises;
and that the Lease has not been modified or amended except as specified herein.
9. Assignments, Modifications, Etc. Tenant shall not, without obtaining the
prior written consent of Lender, (i) assign the Lease or sublease the Demised
Premises or any portion thereof other than pursuant to and not in violation of
the provisions of the Lease; (ii) prepay any of the rents, additional rents or
other sums due under the Lease for more than one (1) month in advance of the due
dates thereof; or (iii) enter into any agreement amending, modifying or
terminating the Lease. Tenant agrees that no termination of the Lease as
described in the preceding clause (iii) shall be effective without the express
prior written consent of Lender. With respect solely to any amendment or
modification of the Lease which pursuant to the provisions of the Lease Landlord
and Tenant are expressly and specifically required to execute and deliver in
order to confirm an event (e.g., an amendment agreement to confirm the leasing
of First Refusal Space by Tenant), Lender hereby agrees that it will not
unreasonably withhold or delay its consent to any such amendment or modification
of the Lease which is submitted to Lender for its consent. The "reasonableness"
standard described in the immediately preceding sentence shall not be applicable
to any other amendment or modification.
10. Limited Liability of Lender. Anything herein or in the Lease to the contrary
notwithstanding, in the event that Lender [or any other holder of the Note or
its nominee] or its nominee shall succeed to the interest of the Landlord under
the Lease (any of the foregoing being herein referred to as the "Successor"),
the Successor shall have no obligation, nor incur any liability, beyond its then
interest, if any, in the Property and Tenant shall look exclusively to such
interest of the Successor, if any, in the Property for the payment and discharge
of any obligations imposed upon the Successor hereunder or under the Lease and
the Successor is hereby released or relieved of any other liability hereunder
and under the Lease. Tenant agrees that with respect to any judgment which may
be obtained or secured by Tenant against the Successor, Tenant shall look solely
to the estate or interest owned by the Successor in the Property and Tenant will
not collect or attempt to collect any such judgment out of any other assets
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of the Successor.
11. Satisfaction of Lease Requirements. Tenant agrees that this Agreement
satisfies any condition or requirement in the Lease relating to the granting of
a non-disturbance agreement with respect to the Deed. Tenant further agrees that
in the event there is any inconsistency between the terms and provisions of this
Agreement and the terms and provisions of the Lease, the terms and provisions of
this Agreement shall be controlling.
12. Modifications; Binding Effect. This Agreement may not be modified orally or
in any manner other than by an agreement in writing signed by the parties hereto
or their respective successors in interest. The term "Landlord", as used herein,
shall mean and include the Landlord under the Lease and any successor landlord
under the Lease up to and including any landlord succeeding to the position of
Landlord prior to and other than Lender. This Agreement shall inure to the
benefit of, and be binding upon, the parties hereto, their legal
representatives, successors and assigns (except for assignees of Tenant, other
than a permitted assignee of Tenant to the extent of a permitted assignment
under the Lease), and any purchaser or purchasers at foreclosure of the
Property, and its or their respective heirs, personal representatives,
successors and assigns.
13. Assignment of Rents. Tenant acknowledges that it has notice that the
Landlord's interest under the Lease and the rent and all other sums due
thereunder have been assigned to Lender as part of the security for the
indebtedness secured by the Deed, and Tenant expressly consents to such
assignment. In the event that Lender notifies Tenant of an event of default
under the Deed and demands that Tenant pay rent and all other sums due under the
Lease to Lender, Tenant agrees that it shall pay rent and all other sums due
under the Lease directly to Lender.
14. Miscellaneous. This Agreement shall be governed by and construed under the
laws of the State of Georgia. If any of the terms of this Agreement or the
application thereof to any person or circumstances shall to any extent be
invalid or unenforceable, the remainder of this Agreement or the application of
any such terms to any person or circumstances other than those as to which it is
invalid or unenforceable shall not be affected thereby, and each term of this
Agreement shall be valid and enforceable to the fullest extent permitted by law.
15. Exhibits. All exhibits attached hereto are by this reference incorporated
fully herein, and the term "this Agreement" shall include all such exhibits.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under seal
as of the date first above written.
"LENDER":
- ---------
Signed, sealed and delivered ,
in the presence of: ---------------------
a
---------------------
Witness By:
---------------------
Title:
Notary Public
Attest:
My Commission expires:
Title:
[SEAL]
[NOTARIAL SEAL]
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"LANDLORD":
Signed, sealed and delivered ,
in the presence of: ----------------------
a
----------------------
Witness By:
---------------------
Title:
Notary Public
My Commission expires:
Title:
[SEAL]
[NOTARIAL SEAL]
"TENANT":
Signed, sealed and delivered ,
in the presence of: ----------------------
a
----------------------
Witness By:
----------------------
Title:
Notary Public
My Commission expires:
Title:
[SEAL]
[NOTARIAL SEAL]
EXHIBIT "A"
DESCRIPTION OF DEED
That certain Deed to Secure Debt and Security Agreement, dated ___________,
19____ , by and among _______________, a _______________, as Borrower and
________________, as Lender, to be recorded in the records of the Superior Court
of Fulton County, Georgia, given to partially secure an indebtedness in the
original stated principal amount of $ _____________, as the same may be amended,
supplemented or modified from time to time.
EXHIBIT "B"
LEGAL DESCRIPTION OF PROPERTY
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EXHIBIT "C"
DESCRIPTION OF LEASE AND DEMISED PREMISES
Lease Agreement, dated ___________, 19__ , between ________________, a
_______________, as Landlord, and ____________, a ___________, as Tenant. The
initial Demised Premises cover of the office building located on the Property.
EXHIBIT "D"
NOTICE ADDRESSES
The address of Landlord is:
- ----------------------
- ----------------------
- ----------------------
- ----------------------
- ----------------------
Attn:
------------------
The address of Lender is:
- ----------------------
- ----------------------
- ----------------------
- ----------------------
- ----------------------
Attn:
-----------------
with a copy sent to:
- ----------------------
- ----------------------
- ----------------------
- ----------------------
- ----------------------
Attn:
------------------
The address of Tenant is:
Prior to the Commencement Date of the Lease:
- --------------------------------------------
- ----------------------
- ----------------------
- ----------------------
- ----------------------
- ----------------------
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After the Commencement Date of the Lease:
- -----------------------------------------
- ----------------------
- ----------------------
- ----------------------
- ----------------------
- ----------------------
APPENDIX J
BASE BUILDING
I. General.
A. This Appendix specifies the base building elements (the "Base Building") that
shall be provided by Landlord at Landlord's expense, except as otherwise
provided. As used in this Lease, the term "base building plans and
specifications" means the following: See the plans and specifications listed on
Schedule 1 of this Appendix J and made a part hereof by reference. Except as
otherwise expressly provided in this Appendix J, the Base Building work is
reflected in said base building plans and specifications. B. The Base Building
shall be designed to meet all applicable minimum code requirements for
commercial office building construction or the requirements of this Appendix ,
whichever are the more stringent, including the requirements of the Americans
With Disabilities Act (taking into account that the Premises will be a "place of
public accommodation" as defined thereunder). C. The equipment, services, and
utilities furnished by Landlord must be free of safety, health, and fire
hazards. D. Landlord shall provide Tenant a copy of the site work and base
building plans and specifications and a copy of all construction contracts for
all site work and base building construction. Landlord will provide Tenant
copies of all changes to the site work and base building plans and specification
and copies of all change orders issued to construction contracts for site work
and base building construction.
II. Site.
A. The site shall be fully graded and landscaped. Landlord shall install and
place in good working order all site improvements shown on the development plan.
Improvements shall include, but are not limited to, sewer, water, telephone
service, electrical service, storm drainage structures, storm water management
structures, roads, parking, and signs, sidewalks, irrigation, and landscaping.
B. Landlord shall provide Tenant a survey of the site and a copy of the site
development plan. The survey shall contain the following information.
1. Land area of the site;
2. Current zoning designation of the site and adjoining parcels;
3. Topography;
4. Property restrictions which would limit or affect development, including
current and proposed set-backs, easements, flood plains, and wet lands; and
5. Site utilities, including power, telephone, gas, and storm drainage.
C. Landlord shall provide Tenant a copy of the site geotechnical and
environmental reports.
III. Structure.
A. The Building structure shall accommodate a minimum tenant live load of 100
pounds per square foot within the Premises, which includes 20 pounds per square
foot for tenant partitions. The structure shall accommodate a wind load based on
an 80-mph wind zone.
B. The seismic design for the Building shall meet SBC
Seismic Performance Category B requirements.
C. The Building foundation will satisfy minimum code requirements for allowable
total and differential
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settlement. Landlord shall be responsible for any damage to leasehold
improvements caused by building settlement or other foundation or structural
defects.
D. The Building foundation and below-grade spaces shall be protected
with a properly installed foundation drainage and waterproofing system.
E. Concrete floors within the Premises shall have a specified overall value
(S.O.V.) floor flatness (Ff) of 23 and floor levelness (FL) of 18 as determined
by ASTM E1155-87. Concrete floors within the Premises shall have a minimum local
value (M.L.V.) floor flatness (Ff) of 15 and minimum floor levelness (FL) of 10
as determined by ASTM E1155-87. Landlord shall survey and correct at Landlord's
expense all deviations from floor flatness and floor levelness criteria.
IV. Building Skin and Roof.
A. The Building skin and roof will be complete, and shall include all masonry,
pre-cast concrete panels, cladding, EIFS, caulking, vision and spandrel glass,
store front glass, exterior doors and hardware, membrane or built-up roofing,
ballast, flashing, and other elements required to make the Building
weather-tight. The Building skin and roof shall be sufficiently weather tight to
prevent weather damage to leasehold improvements.
B. The exterior Building perimeter, roof, and foundation shall be insulated in
accordance with energy code requirements.
C. The interior face of all non-glazed exterior walls in the Premises and common
areas shall be insulated to energy code requirements and covered with gypsum
wallboard. The gypsum wallboard shall be taped, blocked, finish sanded and prime
painted ready to receive a final finish. On Tenant floors where Landlord shall
not cover the interior face of exterior walls with gypsum wallboard, Landlord
shall credit the Landlord's Contribution by an amount equal to the value of the
gypsum wallboard; it is agreed that the maximum total credit for this item shall
equal $10,100. D. Exterior face of all interior exposed columns in the Premises
shall not be covered with gypsum wallboard.
V. Building Common Areas.
A. The Building entrance lobby, common corridors, restrooms, mechanical spaces,
janitorial spaces, loading dock, trash removal spaces, and other common areas
will be finished complete.
B. Men and women's rest rooms shall be located on each floor per code
requirements. Restrooms shall meet ADA requirements. Restrooms shall be complete
with all fixtures, partitions, accessories, lavatories, lavatory tops, and
mirrors. Fixtures and accessories shall be institution grade or better, and
shall be water saving type, as appropriate. Toilet fixtures shall be wall-hung.
Toilet partitions shall be ceiling-hung and have a baked enamel finish with
chrome hardware, or shall consist of metal studs covered with gypsum wallboard.
Wet walls and floors shall be covered with ceramic tile. Other walls shall be
covered with vinyl wall covering or multi-colored paint. Lavatory tops shall be
natural stone or solid surfacing materials (DuPont Corian or better).
C. Exit stairways shall be provided on each floor per code and ADA requirements.
Stairways shall be complete with all wall, floor, and ceiling finishes,
lighting, handrails, treads and risers, doors and hardware, emergency lights,
and exit signs.
D. Passenger elevators and service elevators (if any are shown on the base
building plans) shall serve each tenant floor not having ground level access and
be in good working order. Elevators shall meet ADA requirements. Passenger
elevators must have a capacity to transport in five (5) minutes fifteen percent
(15%) of the normal population of all upper floors (based on 125 occupied square
feet per person). Further, the dispatch interval between elevators during the
up-peak demand period should not exceed thirty-five (35) seconds.
E. Multi-tenant floors shall have a finished elevator lobby per applicable
codes, complete with all wall, floor, and ceiling finishes, lighting, emergency
lights, and exit signs. On single tenant floors where Tenant shall finish the
elevator lobby as part of its leasehold improvements, Landlord shall credit the
Landlord's Contribution by an amount equal to the value of a multi-tenant floor
elevator lobby; it is agreed that the amount of the total credit for this item
shall equal $12,000 per floor; $24,000 in the aggregate for two floors.
F. Common area corridors will be finished per code requirements, complete with
all floor, wall, and ceiling finishes, lighting, emergency lights, and exit
signs.
G. Landlord shall provide no less than three (3) 4" diameter, conduit sleeves in
common area mechanical
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spaces for Tenant's use to feed voice, video, and data cable risers. Conduit
sleeves shall allow Tenant to service Tenant supplied and installed roof mounted
antenna systems which may be expressly permitted by this Lease. Antenna or other
equipment to be placed on the roof will be subject to Landlord's prior written
approval. Conduit shall terminate in the Building main telephone room to allow
Tenant to connect to the Building main telephone service. Landlord shall provide
Tenant reasonable access to the Building common area telephone equipment rooms
to connect to Building telephone services. Tenant voice and data backboards and
distribution equipment shall be located in the Premises.
H. Landlord will not locate any electrical and mechanical chases in the
Premises, except two (2) wet columns per floor as shown on the base building
plans.
I. If not located within the common areas, Landlord shall provide a finished and
painted janitorial closet within the Premises. The janitorial closet shall
include a service sink, hot and cold water. All fixtures shall be institution
grade or better. The janitorial closet service sink shall be capable of
accepting condensate and condenser water drains from supplemental HVAC equipment
without overflowing. Janitorial closet doors shall be fitted with an automatic
deadlocking latch bolt. Access to janitorial closets will be controlled by
Landlord.
J. Landlord shall provide water coolers adjacent to the restrooms in the common
area on each floor.
VI. Common Walls.
A. Base Building shall include slab-to-slab gypsum wallboard on each side of all
demising walls, corridors, stairwells, and other walls not interior to the
Premises. Common walls shall meet fire code requirements. All common walls shall
be taped, blocked, finish sanded and prime painted ready to receive a final
finish. Common walls adjacent to or below fan rooms, toilets, retail areas, and
mechanical spaces shall be constructed to ensure the following acoustical
performance criteria: Sound Transmission Class (STC) greater than or equal to
55. All other common walls shall be constructed to ensure an acoustical
performance criteria greater than or equal to STC-40.
B. Common walls shall include entry and exit doors from public corridors per
applicable codes and regulations. Doors in firewalls shall meet code
requirements and regulations. Entry and exit doors shall be minimum 3'0" x 8' 4"
x 1-3/4" and consist of a solid core covered with a plain-sliced wood veneer
meeting "Grade AA" standards of the Architectural Woodwork Institute or better.
Stiles shall match face veneer. Landlord shall mount doors in door frames
constructed of 16-gage metal. Doors shall be completely functional and include
hinges, lever sets, closers, doorstops, and other hardware. Doors and hardware
shall comply with ADA requirements. Tenant shall approve the location of all
entry and exit doors to the Premises.
VII. Fire Protection and Life Safety Systems.
A. The Base Building shall include a fully functioning, approved, automatic fire
protection system installed in accordance with applicable codes and regulations
as specified on the base building plans. The fire protection system will be
installed complete, including all mains, risers, pumps, laterals, sprinkler
heads (turned up), fire extinguishers (2 per floor), fire extinguisher cabinets,
backup power system, and other devices.
B. The fire protection system shall include all control and monitoring devices,
including but not limited to, annunciator panels, alarm systems, pull stations,
emergency lighting, exit signs, alarms, smoke and heat detectors, tamper-proof
detection devices, and other devices.
C. The fire protection system shall be provided with emergency power as required
by local codes.
D. All costs to adapt the fire protection system to the layout of Tenant space
shall be at Tenant's expense. Tenant costs shall include:
1. Turning sprinkler heads down.
2. Installing pipe extensions on sprinkler heads to match the height of the
sprinkler head to the final finished ceiling height.
3. Moving or adding any sprinkler heads because of locations of tenant
partitions.
E. Tenant shall supply and install all sprinkler heads at Tenant's expense.
Sprinkler heads shall be the "semi-recessed" or "flush" type.
VIII. Window Treatment.
A. The Base Building shall include building standard window treatments on the
exterior windows as specified
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in the base building plans. The building standard window treatment is
Bali-Graber thin-type, "Tender taupe" colored horizontal blinds, one per
exterior window.
IX. Electrical.
A. Power will be available in the electric room on each floor of the Building as
specified on the base building plans. The total demand load for Tenant's
lighting and power (excluding building system air conditioning, building system
heating, and domestic hot water) shall be equal to 2 watts per rentable square
foot for lighting and 4 watts per rentable square foot for power. The Base
Building must include the ability to increase Tenant lighting and power demand
load by twenty five percent (25%).
B. Landlord shall install all main switchboards, panel boards, distribution
boards, transformer, bus duct, feeders and other equipment to completely
distribute power to electrical closets on each tenant floor. Landlord shall
locate an electrical service panel in the electrical closet in the common area
on the same floor as the Premises. Installation of electrical service up to and
including Tenant's service panel shall be a Base Building cost. Landlord shall
have the right to bill Tenant, and Tenant shall pay upon demand, a prorata share
of the Totalized Georgia Power Invoice to Landlord.
C. Landlord shall install all wiring, branch circuiting, conduit and devices for
the complete electrical system to all public and common areas. Landlord shall
provide all power wiring and connection for all mechanical equipment furnished
as part of Base Building. Landlord shall provide all power wiring to life safety
and fire protection systems.
D. Landlord shall provide a lightning protection system.
E. Landlord shall provide adequate space and access for Tenant's backup
emergency power generator. Tenant's backup emergency power generator shall be
separate from the Base Building emergency power system.
F. Tenant shall provide at its expense all engineering for electrical systems
necessary to accommodate Tenant's use of the Premises.
X. Communications.
Landlord will bring telephone service, as provided by the local telephone
operating company, to the Building main telephone room.
XI. Lighting.
A. Base Building shall include lighting to provide a minimum of 50 foot-candles
at working surface height throughout the Premises. Tenant shall approve final
location of light fixtures. Lamps shall be energy saving type. Ballast shall be
energy efficient, electronic type. All open office lighting shall adhere to
ANSI-A132.1 Practice for Office Lighting. Notwithstanding anything contained
herein to the contrary, Landlord shall not supply or install any light fixtures
as part of the Base Building. In consideration thereof, Landlord shall credit
the Landlord's Contribution by an amount equal to $64,400. It is understood and
agreed by Tenant that Tenant must use, and the Construction Documents must
reflect the use of, Building Standard light fixtures (which shall be Lithonia
2PM3 Series - 3 lamp 2'x4' with 18 cell parabolic louver or equal), and no other
light fixtures except with Landlord's written consent, which consent may be
withheld in Landlord's sole and absolute discretion.
B. Base Building shall include a lighting level of at least 20 foot-candles at
foot level in corridors providing ingress and egress to the Premises. Base
Building shall include a lighting level of at least 10 foot-candles or minimum
levels to insure safety in other interior areas.
C. Building entrances, walkways, and parking areas must be lighted. Exterior
building entrances, night depositories, loading areas, and pedestrian walkways
shall have a minimum of 10 foot-candles of illumination. Surface parking areas
shall have a minimum of 1 foot-candle of illumination. Indoor parking areas
shall have a minimum of 10 foot-candles level illumination.
D. Tenant shall provide electrical service to all lighting and light switches.
Individual offices and support functions shall be locally switched. Open office
areas shall be either panel switched or locally switched. The lighting shall be
switched so that light levels can be reduced fifty percent (50%) at any given
time and primarily during the cleaning operation. All other controllable light
circuits should be coded to allow shut-off of the lighting systems in unoccupied
areas.
E. Base Building shall include the cost to provide electrical service to all
life safety and fire protection systems required by the Base Building. Tenant
shall provide at its expense all other life safety and fire protection devices
and
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systems within the Premises.
F. Tenant shall provide at its expense all engineering for lighting systems
necessary to accommodate Tenant 's use of the Premises.
XII. Plumbing
Tenant shall provide all engineering for plumbing systems necessary to
accommodate Tenant's use of the Premises. Water lines from fixtures on the first
floor of the Building will be pumped overhead.
XIII. HVAC.
A. Base Building shall include the design and installation of a semi-complete
heating, ventilation, and air conditioning system. The system shall be designed
to applicable American Society of Heating, Refrigeration and Air-Conditioning
Engineers (ASHRAE) standards for indoor air temperature, humidity, outside air,
noise, and air quality. The system shall include medium pressure ducts, duct
liner, perimeter ducts, perimeter diffusers and, grills, condensers, pumps,
electrical service, controls, and other equipment shown on the base building
plans and specifications required for a first-class, fully functional, operating
system, and shall be properly balanced and in good working order.
B. The Premises shall have one (1) thermostat for each VAV box and PIU shown on
the base building plans and specifications. Thermostats shall be temporarily
mounted within the Premises.
C. Final installation of thermostats in the Premises and connection to any
central energy management or control system shall be at Tenant's expense.
D. Tenant shall provide at its expense all engineering for mechanical systems
necessary to accommodate Tenant's use of the Premises.
XIV. Ceiling Grid and Tile.
A. The Building standard ceiling grid shall be "Armstrong - Prelude Xl.," or
approved equal. Costs to modify the ceiling grid shall be paid by Tenant.
Notwithstanding anything contained herein to the contrary, Landlord shall not
supply or install any ceiling grid. In consideration thereof, Landlord shall
credit the Landlord's Contribution by an amount equal to $35,500. Tenant
understands and agrees that it shall be required to use, and the Construction
Documents must reflect the use of, a Building Standard ceiling grid throughout
the entire Premises, and no other ceiling grid except with Landlord's written
consent, which consent may be withheld in Landlord's sole and absolute
discretion.
B. Landlord shall not supply acoustical ceiling tile. The Building Standard
ceiling tile is "Armstrong - Minatone" or approved equal and will have an
average noise reduction coefficient (NRC) of .55 or better. Notwithstanding
anything contained herein to the contrary, Landlord shall not supply or install
any ceiling tile. In consideration thereof, Landlord shall credit the Landlord's
Contribution by an amount equal to $31,400. Tenant understands and agrees that
it shall be required to use, and the Construction Documents must reflect the use
of, Building Standard ceiling tile throughout the entire Premises, and no other
ceiling tile except with Landlord's written consent, which consent may be
withheld in Landlord's sole and absolute discretion.
C. Tenant shall supply and install 4" sound bat insulation above ceiling tiles
for 2 feet on either side of the centerline of each wall delineating all private
offices, conference rooms, lunch rooms computer rooms, and other spaces so
designated by Tenant. Tenant will install ceiling tile only after other
above-ceiling work is complete.
XV. Building Directory.
Notwithstanding anything contained herein to the contrary, Landlord shall not
provide a directory in the lobby of the Building. In lieu thereof, Landlord will
credit the Landlord's Contribution by an amount equal to $6,000. Landlord shall
have the right to approve any Building directory desired to be installed by
Tenant at Tenant's expense, such approval not to be unreasonably withheld.
XVI. Keys.
Landlord shall supply Tenant up to 100 keys to the Premises.
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XVII. Security System.
Landlord will provide an electronically controlled card access security system.
The system will control all entry areas to the Building. Landlord will code each
card for individual tenant employee access. Landlord shall supply Tenant up to
100 access cards to allow access to the Premises, parking areas and other common
areas of the Project. Additional cards can be obtained by Tenant at its expense
at approximately $250.00 per 100 cards.
APPENDIX D
JANITORIAL SERVICES
DAILY
-------
Sweep, dry mop (using treated mops), or vacuum all floor areas (moving
light furniture) of resilient wood or carpet, remove matter such as gum and tar
which has adhered to the floor.
Empty and damp wipe all ashtrays and waste baskets and remove all trash.
Dust all horizontal surfaces with treated dust cloth, including furniture,
files, equipment, blinds, and louvers that can be reached without a ladder.
Damp wipe all telephones, including dials and crevices.
Spot wash to remove smudges, marks and fingerprints from such areas as walls,
equipment, doors, partitions and light switches within reach.
Wash and disinfect water fountains and water coolers.
Damp mop all non-resilient floors such as concrete, terrazzo and ceramic tile.
Empty all waste containers.
Dust and rub down elevator doors, walls, and metal work in elevator cabs.
TOILET ROOMS
--------------
Clean mirrors, soap dispensers, shelves, wash basins, exposed plumbing,
dispenser and disposal container exteriors using detergent disinfectant and
water. Damp wipe all ledges, toilet stalls and doors, spot clean light
switchers, doors and walls.
Clean toilets and urinals with detergent disinfectant, beginning with seats and
working down. Pour one ounce of bowl cleaner into urinal after cleaning and do
not flush.
Furnish and refill all soap, toilet, sanitary napkin and towel dispensers.
Clean all baseboards.
Damp mop floors using detergent disinfectant.
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WEEKLY
Wash all directory board, display, entry door and side light glass, as
necessary.
Spot clean carpet stains.
Spot wash interior partition glass and door glass to remove all smudge marks and
finger marks from doors, partitions, woodwork, window ledges and window
mullions.
MONTHLY
Sweep stairwells and landings.
Wash all uncarpeted areas.
High dust all horizontal and vertical surfaces not reached in nightly cleaning,
such as pipes, light fixtures, door frames, picture frames and other wall
hangings.
QUARTERLY
Vacuum all ceilings and wall air supply and exhaust diffusers or grills.
Wash all stairwell landings and treads.
Clean exterior windows of the building, weather permitting.
Scrub, wax and buff all tile areas.
APPENDIX L
BUILDING 400 FACING SIGN SPECIFICATIONS
[To be added prior to Lease execution]
APPENDIX M
MONUMENT SIGN RENDERING AND SITE PLAN SHOWING LOCATION THEREOF
[To be added prior to Lease execution]
APPENDIX N
LEASE (SHORT FORM)
THIS LEASE (SHORT FORM) [hereinafter referred to as the "Lease (Short Form)"] is
made and entered into as of the 16th day of February, 1998, between CarrAmerica
Realty Corporation, a Maryland corporation (together with
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its successors and assigns, hereinafter called "Landlord"), and EduTrek
International, Inc., a Georgia corporation (together with its successors and
permitted assigns, hereinafter called "Tenant").
W I T N E S S E T H:
WHEREAS, for and in consideration of the sum of Ten and No/100 Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and the further consideration of the covenants and
undertakings hereinafter set forth, as well as each and every covenant,
agreement and undertaking set forth in that certain Lease between Landlord and
Tenant dated February 16, 1998 (hereinafter called the "Lease"), an executed
copy of which is in the possession of each party hereto and all of which terms
and conditions are hereby made a part hereof as fully and completely as if
herein specifically set out in full, Landlord and Tenant do hereby covenant and
agree as follows:
1. Leased Premises. Subject in all respects to the terms, provisions and
conditions of the Lease, by virtue of the Lease Landlord has leased, demised and
let and does hereby lease, demise and let, to Tenant and Tenant has leased and
does hereby lease from Landlord the Premises (defined below), subject to the
terms and conditions of the Lease. The building in which the Premises shall be
located (the "Building") shall be constructed on the land located in Fulton
County, Georgia, as more particularly described on Exhibit "A" attached hereto
and made a part hereof. The Premises shall mean all of the rentable square feet
in the Building. The Building is part of a multi-building development known on
the date hereof as "Embassy Row" (the "Development").
2. Term. Subject in all respects to the terms, provisions and conditions of the
Lease, the initial term of the Lease shall be one hundred thirty-eight (138)
months, beginning on the Commencement Date for Phase 1 of the Premises (as such
term is defined in the Lease). Subject in all respects to the terms, conditions
and provisions of the Lease, Tenant has the option to extend the term of the
Lease for four (4) additional consecutive periods of five (5) years each.
3. Right of First Refusal. Subject in all respects to the terms, conditions and
provisions of the Lease, Tenant shall have certain antenna rights with respect
to the Building, exterior signage rights with respect to the Building and with
respect to the 400 Building (as defined in the Lease), and the right of first
refusal to lease certain other leasable space in the other office buildings now
located in the Development.
4. Conflicting Provisions. In the event that any conflict exists between the
terms and provisions of this Lease (Short Form) and the terms and provisions of
the Lease, the terms, conditions and provisions of the Lease shall be deemed
controlling in all respects.
5. Effect of Lease (Short Form). Landlord and Tenant desire to execute, deliver
and record this Lease (Short Form) for the purpose of placing the public on
notice of inquiry as to the specific terms, conditions and covenants of the
Lease. Nothing contained herein is intended to or does change, modify or affect
any of the terms or provisions of the Lease or the rights, duties, obligations,
conditions and agreements created thereby, all of which remain in full force and
effect.
6. Release. Upon the request of Landlord following the expiration or termination
of the Lease, Tenant shall promptly execute and deliver to Landlord an
appropriate release and/or cancellation instrument acknowledging the expiration
or termination of the Lease and releasing any and all right, title and interest
of Tenant in and to the Premises and all other portions of the Development under
the Lease. Also upon the request of Landlord following the expiration,
termination, waiver or lapse of any of the rights or options of Tenant provided
for in the Lease, Tenant shall promptly execute and deliver to Landlord an
appropriate release instrument acknowledging the expiration, termination, waiver
or lapse of such rights or options, as the case may be. The release and/or
cancellation instruments contemplated herein shall be executed in proper form
for recordation in the Office of the Clerk of the Superior Court of Fulton
County, Georgia. If Tenant shall fail at any time, within ten (10) days
following the giving of a written request therefor, to execute, acknowledge, and
deliver any such instrument, Landlord, in addition to any other remedies
available to it in consequence thereof, may execute, acknowledge, and deliver
the same as the
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attorney-in-fact of Tenant and in Tenant's name, place, and stead, and Tenant
hereby irrevocably makes, constitutes, and appoints Landlord or such holder, and
their respective successors and assigns, as such attorney-in-fact for that
purpose.
IN WITNESS WHEREOF, the parties hereto have executed this Lease (Short Form)
under seal as of the date aforesaid.
"LANDLORD":
Signed, sealed and delivered CarrAmerica Realty Corporation in the presence of:
By:
Title:
---------------------------------
Witness
[Corporate Seal]
- ----------------------
Notary Public
My Commission expires:
- ----------------------
[NOTARIAL SEAL]
"TENANT":
Signed, sealed and delivered EduTrek International, Inc.
in the presence of:
By:
------------------------------------
Witness Title:
---------------------------------
Notary Public [CORPORATE SEAL]
My Commission expires:
- ----------------------
[NOTARIAL SEAL]
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1. LEASE AGREEMENT 3
2. RENT 4
A. Types of Rent 4
(1) Base Rent 4
(2) Operating Cost Share Rent 4
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(3) Additional Rent 4
(4) Rent 4
B. Payment of Operating Cost Share Rent 5
(1) Payment of Estimated Operating Cost Share Rent 5
(2) Correction of Operating Cost Share Rent 5
C. Definitions 6
(1) Included Operating Costs 6
(2) Excluded Operating Costs 7
(3) Taxes 9
(4) Lease Year 10
(5) Fiscal Year 10
D. Computation of Base Rent and Rent Adjustments 10
(1) Prorations. 10
(2) Default Interest. 10
(3) Rent Adjustments. 11
(4) Books and Records. 11
(5) Miscellaneous. 12
3. PREPARATION AND CONDITION OF PREMISES; POSSESSION AND SURRENDER OF PREMISES
A. Condition of Premises. 12
B. Tenant's Possession. 12
C. Maintenance. 12
4. PROJECT SERVICES 12
A. Heating and Air Conditioning 12
B. Elevators 14
C. Electricity 14
D. Water 15
E. Janitorial Service 15
F. Interruption of Services 15
G. Light Fixtures 16
HF. Services Standard 16
5. ALTERATIONS AND REPAIRS 16
A. Landlord's Consent and Conditions. 16
B. Damage to Systems. 17
C. No Liens. 18
D. Ownership of Improvements. 18
E. Removal at Termination. 19
6. USE OF PREMISES 19
7. LEGAL REQUIREMENTS AND BUILDING RULES. 20
8. WAIVER OF CLAIMS; INDEMNIFICATION; INSURANCE. 20
A. Waiver of Claims. 20
B. Indemnification. 20
C. Tenant's Insurance. 21
D. Insurance Certificates. 22
E. Landlord's Insurance. 22
F. Waiver of Subrogation. 22
</TABLE>
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9. FIRE AND OTHER CASUALTY 22
A. Termination. 22
B. Restoration. 23
10. EMINENT DOMAIN. 24
11. RIGHTS RESERVED TO LANDLORD. 25
A. Name 25
B. Signs. 25
C. Window Treatments. 25
D. Keys 26
E. Access 26
F. Preparation for Reoccupancy 26
G. Heavy Articles 26
H. Show Premises 26
I. [Intentionally Omitted] 27
J. Use of Lockbox 27
K. Repairs and Alterations 27
L. Landlord's Agents 27
M. Building Services. 27
N. Other Actions. 27
12. TENANT'S DEFAULT. 28
A. Rent Default. 28
B. Assignment/Sublease or Hazardous Substances Default. 28
C. Other Performance Default. 28
D. Credit Default. 28
13. LANDLORD REMEDIES 29
A. Termination of Lease or Possession. 29
B. Lease Termination Damages. 29
C. Possession Termination Damages. 29
D. Landlord's Remedies Cumulative. 29
E. WAIVER OF TRIAL BY JURY. 30
F. Litigation Costs. 30
14. SURRENDER. 30
15. HOLDOVER. 30
16. SUBORDINATION TO GROUND LEASES AND MORTGAGES 31
A. Subordination 31
B. Termination of Ground Lease or Foreclosure of Mortgage 31
C. Security Deposit 31
D. Notice and Right to Cure 32
E. Definitions. 32
17. ASSIGNMENT AND SUBLEASE. 32
A. In General. 32
B. Landlord's Consent for Non-Affiliates; No Consent for Affiliates. 33
C. Procedure. 34
D. Change of Management or Ownership. 34
E. Excess Payments. 35
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F. Recapture 35
18. CONVEYANCE BY LANDLORD 35
19. STOPPEL CERTIFICATE 36
20. LANDLORD DEFAULT 36
21. FORCE MAJEURE 37
22. SPECIAL MASTER PROCEDURE 37
23. NOTICES 38
A. Landlord. 38
B. Tenant. 38
24. QUIET POSSESSION 39
25. REAL ESTATE BROKER 39
26. MISCELLANEOUS 40
A. Successors and Assigns. 40
B. Date Payments Are Due. 40
C. Meaning of "Landlord", "Re-Entry, "including" and "Affiliate". 40
D. Time of the Essence. 41
E. No Option. 41
F. Severability. 41
G. Governing Law. 41
H. [Intentionally Omitted]. 41
I. No Oral Modification. 41
J. Landlord's Right to Cure. 41
K. Captions. 41
L. Authority. 41
M. Landlord's Enforcement of Remedies. 41
N. Entire Agreement. 41
O. Landlord's Title. 42
P. Light and Air Rights. 42
Q. Singular and Plural. 42
R. No Recording by Tenant. 42
S. Exclusivity. 43
T. No Construction Against Drafting Party. 43
U. Survival. 43
V. Rent Not Based on Income. 43
W. Building Manager and Service Providers. 43
X. Late Charge and Interest on Late Payments. 43
Y. Tenant's Financial Statements. 43
Z. No Estate. 44
27. UNRELATED BUSINESS INCOME 44
28. HAZARDOUS SUBSTANCES 44
29. EXCULPATION 45
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30. SPECIAL STIPULATIONS 45
</TABLE>
APPENDIX A - PLAN OF THE PREMISES
APPENDIX B - RULES AND REGULATIONS
APPENDIX C - TENANT IMPROVEMENT AGREEMENT
APPENDIX D - JANITORIAL SERVICES
APPENDIX E - COMMENCEMENT DATE CONFIRMATION
APPENDIX F - SPECIAL STIPULATIONS
APPENDIX G - BASE RENT SCHEDULE (WITH PARKING DECK)
APPENDIX H - LEGAL DESCRIPTION OF LAND
APPENDIX I - SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
APPENDIX J - BASE BUILDING
APPENDIX K - MODIFIED BOMA STANDARD
APPENDIX L - BUILDING 400 AND BUILDING 500 FACING SIGN SPECIFICATIONS
APPENDIX M - MONUMENT SIGN RENDERING AND LOCATION THEREOF
APPENDIX N - LEASE (SHORT FORM)
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<PERIOD-START> MAY-31-1998
<PERIOD-END> FEB-28-1998
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