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EXHIBIT 10.3
ALLIANCE CENTER
OFFICE LEASE AGREEMENT
BY AND BETWEEN
SOLANO ASSOCIATES
AS LANDLORD
AND
SECURITY FIRST TECHNOLOGIES, INC.
AS TENANT
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TABLE OF CONTENTS
1. BASIC LEASE DEFINITIONS, EXHIBITS AND ADDITIONAL DEFINITIONS............1
1.1 BASIC LEASE DEFINITIONS............................................1
1.2 EXHIBITS...........................................................6
1.3 ADDITIONAL DEFINITIONS.............................................6
2. GRANT OF LEASE.........................................................14
2.1 DEMISE............................................................14
2.2 QUIET ENJOYMENT...................................................14
2.3 LANDLORD AND TENANT COVENANTS.....................................14
3. TERM...................................................................14
3.1 COMMENCEMENT DATE.................................................14
3.2 EARLY OCCUPANCY...................................................15
3.3 DELAYED OCCUPANCY.................................................15
3.4 SURRENDER.........................................................17
3.5 HOLDING OVER......................................................18
4. RENT..................................................................18
4.1 BASE RENT.........................................................18
4.2 ADDITIONAL RENT...................................................19
4.3 TERMS OF PAYMENT..................................................20
4.4 LATE CHARGE; INTEREST ON LATE PAYMENTS............................20
4.5 RIGHT TO ACCEPT PAYMENTS..........................................21
4.6 TENANT'S AUDIT RIGHT..............................................21
5. CONDITION OF PREMISES..................................................22
5.1 ACCEPTANCE OF PREMISES............................................22
5.2 COMPLETION OF PUNCHLIST..........................................23
5.3 WARRANTIES........................................................23
6. USE AND OCCUPANCY......................................................23
6.1 USE...............................................................22
6.2 COMPLIANCE........................................................23
6.3 OCCUPANCY.........................................................25
6.4 COMMON FACILITIES.................................................25
6.5 SERVICE PROVIDERS.................................................25
7. SERVICES AND UTILITIES.................................................26
7.1 LANDLORD'S STANDARD SERVICES......................................25
7.2 SEPARATE UTILITY SERVICES.........................................28
7.3 ADDITIONAL SERVICES...............................................28
7.4 INTERRUPTION OF SERVICES..........................................29
8. REPAIRS................................................................31
8.1 REPAIRS WITHIN THE PREMISES.......................................31
8.2 FAILURE TO MAINTAIN PREMISES......................................31
8.3 NOTICE OF DAMAGE..................................................32
9. ALTERATIONS............................................................31
9.1 ALTERATIONS BY TENANT.............................................32
9.2 ALTERATIONS AND ENTRY BY LANDLORD.................................33
10. LIENS..................................................................34
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11. INSURANCE...........................................................33
11.1 LANDLORD'S INSURANCE..............................................33
11.2 TENANT'S INSURANCE................................................34
12. DAMAGE OR DESTRUCTION...............................................36
12.1 TERMINATION OPTIONS...............................................36
12.2 REPAIR OBLIGATIONS................................................35
12.3 RENT ABATEMENT....................................................36
13. WAIVERS AND INDEMNITIES.............................................36
13.1 LANDLORD'S WAIVERS................................................36
13.2 TENANT'S WAIVERS..................................................36
13.3 LANDLORD'S INDEMNITY..............................................37
13.4 TENANT'S INDEMNITY................................................37
14. CONDEMNATION........................................................37
14.1 FULL TAKING.......................................................37
14.2 PARTIAL TAKING....................................................39
14.3 AWARDS............................................................38
14.4 TEMPORARY PARKING.................................................39
15. ASSIGNMENT AND SUBLETTING...........................................39
15.1 LIMITATION........................................................39
15.2 NOTICE OF PROPOSED TRANSFER; LANDLORD'S OPTIONS...................39
15.3 CONSENT NOT TO BE UNREASONABLY WITHHELD...........................40
15.4 FORM OF TRANSFER..................................................41
15.5 PAYMENTS TO LANDLORD..............................................41
15.6 CHANGE OF OWNERSHIP...............................................42
15.7 PERMITTED TRANSFERS...............................................42
15.8 EFFECT OF TRANSFERS...............................................42
15.9 RELEASE OF TRANSFEROR.............................................43
15.10 NONDISTURBANCE OF SUBLESSEE.......................................43
16. PERSONAL PROPERTY...................................................43
16.1 INSTALLATION AND REMOVAL..........................................42
16.2 RESPONSIBILITY....................................................43
17. ESTOPPEL CERTIFICATES...............................................43
18. TRANSFER OF LANDLORD'S INTEREST.....................................43
18.1 SALE, CONVEYANCE AND ASSIGNMENT...................................43
18.2 EFFECT OF SALE, CONVEYANCE OR ASSIGNMENT..........................43
18.3 SUBORDINATION.....................................................43
18.4 ATTORNMENT........................................................45
18.5 NONDISTURBANCE....................................................45
19. RULES AND REGULATIONS...............................................46
20. TENANT'S DEFAULT AND LANDLORD'S REMEDIES............................45
20.1 DEFAULT...........................................................45
20.2 REMEDIES..........................................................46
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TABLE OF CONTENTS
21. LANDLORD'S DEFAULT AND TENANT'S REMEDIES............................48
21.1 DEFAULT...........................................................48
21.2 REMEDIES..........................................................48
21.3 CURE BY ENCUMBRANCE HOLDER........................................51
22. LETTER OF CREDIT....................................................51
23. BROKERS.............................................................54
24. LIMITATIONS ON LIABILITY............................................55
25. NOTICES.............................................................55
26. MISCELLANEOUS.......................................................57
26.1 BINDING EFFECT....................................................57
26.2 COMPLETE AGREEMENT; MODIFICATION..................................56
26.3 DELIVERY FOR EXAMINATION..........................................56
26.4 NO AIR RIGHTS.....................................................56
26.5 ENFORCEMENT EXPENSES..............................................56
26.6 BUILDING PLANNING.................................................56
26.7 LANDLORD'S NAME...................................................57
26.8 BUILDING STANDARD.................................................57
26.9 NO WAIVER.........................................................57
26.10 RECORDING; CONFIDENTIALITY.....................................57
26.11 CAPTIONS.......................................................58
26.12 INVOICES.......................................................58
26.13 SEVERABILITY...................................................58
26.14 JURY TRIAL.....................................................58
26.15 AUTHORITY TO BIND..............................................58
26.16 ONLY LANDLORD/TENANT RELATIONSHIP..............................58
26.17 COVENANTS INDEPENDENT..........................................58
26.18 GOVERNING LAW..................................................58
26.19 TIME OF ESSENCE................................................60
26.20 USUFRUCT.......................................................59
27. RIGHT TO RENEW......................................................59
28. EXPANSION OPTION....................................................62
29. RIGHT OF FIRST OFFER................................................63
30. CONTRACTION OPTION..................................................66
31. SIGNAGE.............................................................66
32. ROOFTOP COMMUNICATIONS EQUIPMENT....................................67
32.1 RIGHT TO INSTALL ANTENNA..........................................67
32.2 RIGHT OF USE/OWNERSHIP OF ANTENNAS................................67
32.3 INSTALLATION, MAINTENANCE, OPERATION AND REMOVAL OF THE ANTENNAS..67
32.4 COMPLIANCE WITH LAWS..............................................67
32.5 LICENSE...........................................................68
33. PRE-COMMENCEMENT EXPANSION OPTION...................................68
34. OPTION TO DEFER DELIVERY............................................70
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TABLE OF CONTENTS
35. STORAGE SPACE.......................................................71
36. SUPPLEMENTAL LEASEHOLD IMPROVEMENT ALLOWANCE........................71
37. Y2K COMPLIANCE......................................................72
38. LEASING RESTRICTIONS................................................72
39. DINING FACILITY.....................................................72
40. HEALTHCLUB..........................................................73
41. CONSENTS AND APPROVALS..............................................73
42. UNRESTRICTED SUPPLEMENTAL ALLOWANCE.................................73
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LEASE AGREEMENT
ALLIANCE CENTER
ATLANTA, GEORGIA
THIS LEASE AGREEMENT ("Lease") is entered into as of the Date, and by
and between the Landlord and Tenant, identified in Section 1.1 below.
1. BASIC LEASE DEFINITIONS, EXHIBITS AND ADDITIONAL DEFINITIONS.
1.1 BASIC LEASE DEFINITIONS.
In this Lease, the following defined terms have the meanings indicated.
(a) "Date" means the date of full execution of this Lease,
which is February 25, 2000.
(b) "Landlord" means SOLANO ASSOCIATES, a California limited
partnership.
(c) "Tenant" means SECURITY FIRST TECHNOLOGIES, INC., a
Kentucky corporation.
(d) "Office Tower" shall mean the office building to be built
by Landlord pursuant to the terms and conditions of Exhibit B attached
hereto and known as One Alliance Center in which the Premises are
located, which Building shall constitute a part of the complex known as
the Alliance Center ("Complex"), and is located on the land more
particularly described in Exhibit A-3 hereto (the "Land").
(e) "Garden Space" shall mean the garden office space to be
built by Landlord pursuant to the terms and conditions of Exhibit B
attached hereto located above the Parking Facility (as hereinafter
defined) and being a part of the Complex.
(f) "Building" shall mean the Office Tower and the Garden
Space, collectively.
(g) "Premises" means (i) those premises known as Suites 200,
300, 400 and 500 located on the 2nd, 3rd, 4th and 5th floors of the
Office Tower and identified on Exhibit A (the "Office Tower Premises"),
which is hereby deemed to measure approximately 100,000 rentable square
feet, subject to adjustment pursuant to Section 33 herein, and (ii) the
Garden Space identified as such on Exhibit A (the "Garden Space
Premises") which is hereby deemed to measure approximately 85,000
rentable square feet. The rentable square footage of the Premises and the
Building shall be subject to final measurement based on the 1996 ANSI
Standard Method of Measurements adopted by BOMA (ANSI-Z65.1 - 1996), as
reasonably agreed upon between the parties. For purposes of the
foregoing, the rentable area of the Office Tower Premises shall be
determined based on the Office Tower only, and the rentable area of the
Garden Space Premises will be determined based on the Garden Space only.
If the parties cannot come to an agreement as to the actual rentable
square footage of the Premises within a reasonable time, not to exceed 60
days after the Commencement Date, a certificate by Landlord's architect
as to the final square footage shall be controlling, unless Tenant
disagrees with the square footage measurement by
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Landlord's architect, in which event Tenant shall have the right to have
the measurement of the Premises certified by an architect to be selected
by Tenant ("Tenant's Architect") within ninety (90) days after Tenant's
receipt of the certificate from Landlord's architect. If Landlord
disagrees with the measurement certificate of Tenant's Architect, then
the two architects will select a third architect who will remeasure the
Premises and whose remeasurement shall be binding on Landlord and Tenant.
The third architect shall have had no conflict of interest in regard to
either Landlord or Tenant within 5 years prior to the Date. The third
architect shall use reasonable efforts to complete its remeasurement
within thirty (30) days of its appointment. The Base Rent and Tenant's
Share shall be adjusted pursuant to the final measurements.
Notwithstanding anything in this Lease to the contrary, in no event shall
any Building amenity or concession such as a healthclub, cafeteria,
laundry facility, bank or travel agency, be included as part of the
Building common area for purposes of determining the rentable area of the
Premises.
(h) "Use" means general business and office use, including
conference and computer facilities, employee and visitor cafeteria and
dining areas (including related kitchen facilities) and any other legally
permitted use consistent with the character of a first class office
building provided any such use is to accommodate Tenant's business and
operational needs and does not include any retail use of the Premises.
(i) "Term" means the duration of this Lease, which will be
approximately 10 years, beginning on the "Commencement Date" (as defined
in Section 3.1 below) and ending on the "Expiration Date" (as defined
below), unless terminated earlier or extended further as provided in this
Lease. The "Expiration Date" means (i) if the Commencement Date is the
first day of a month, the 10 year anniversary of the day immediately
preceding the Commencement Date; or (ii) if the Commencement Date is not
the first day of a month, the 10 year anniversary of the last day of the
month in which the Commencement Date occurs.
(j) "Scheduled Commencement Date" means September 1, 2001.
(k) "Base Rent" means the Rent payable according to Section
4.1, which will be in an amount per month applicable during each Lease
Year as follows:
Office Tower Premises
<TABLE>
<CAPTION>
Annual Base Rent Per
--------------------
Lease Year Rentable Square Foot Monthly Base Rent* Annual Base Rent*
---------- -------------------- ------------------ -----------------
<S> <C> <C> <C>
1 $27.50 $229,166.67 $2,750,000
2 $28.09 $234,083.33 $2,809,000
3 $28.69 $239,083.33 $2,869,000
4 $29.31 $244,250.00 $2,931,000
5 $29.95 $249,583.33 $2,995,000
6 $30.61 $255,083.33 $3,061,000
7 $31.28 $260,666.67 $3,128,000
8 $31.98 $266,500.00 $3,198,000
9 $32.70 $272,500.00 $3,270,000
10 $33.44 $278,666.67 $3,344,000
</TABLE>
* Based on 100,000 square feet of rentable area
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Garden Space Premises
<TABLE>
<CAPTION>
Annual Base Rent Per
--------------------
Lease Year Rentable Square Foot Monthly Base Rent** Annual Base Rent**
---------- -------------------- ----------------- ----------------
<S> <C> <C> <C>
1 $16.50 $116,875.00 $1,402,500
2 $17.00 $120,416.67 $1,445,000
3 $17.50 $123,958.33 $1,487,500
4 $18.03 $127,712.50 $1,532,550
5 $18.57 $131,537.50 $1,578,450
6 $19.13 $135,504.17 $1,626,050
7 $19.70 $139,541.67 $1,674,500
8 $20.29 $143,720.83 $1,724,650
9 $20.90 $148,041.67 $1,776,500
10 $21.53 $152,504.17 $1,830,050
</TABLE>
** Based on 85,000 square feet of rentable area
(l) "Tenant's Share", with respect to the calculation of
Additional Rent according to Section 4.2, shall consist of four (4)
components, as follows: (i) with respect to Tenant's Premises in the
Office Tower only, Tenant's Share of Expenses ("Tenant's Office Tower
Share of Expenses") shall be eighteen and 02/100 percent (18.02%),
subject to adjustment for changes in rentable area, (ii) with respect to
Tenant's Premises in the Office Tower only, Tenant's Share of Office
Tower Taxes ("Tenant's Office Tower Share of Taxes") shall be twenty-one
and 28/100 percent (21.28%) [which is the percentage that Tenant's Office
Tower Premises represents of the entire Office Tower rentable area],
subject to adjustment for changes in rentable area, (iii) with respect to
Tenant's Premises in the Garden Space only, Tenant's Share of Expenses
("Tenant's Garden Space Share of Expenses") shall be fifteen and 32/100
percent (15.32%), and (iv) with respect to Tenant's Premises in the
Garden Space only, Tenant's Share of Taxes ("Tenant's Garden Space Share
of Taxes") shall be thirteen percent (13%) (but only so long as the
Office Tower and the Parking Facility are taxed as a single tax parcel;
if the Parking Facility becomes a separate tax parcel, Tenant's Garden
Space Share of taxes will be one hundred percent (100%) of the Taxes for
the Parking Facility tax parcel that are equitably allocated to the
Garden Space, based on the relative values of the Garden Space and the
other portions of the Parking Facility and Common Areas not included in
the Garden Space). If Tenant's Office Tower Share of Expenses and of
Taxes or Tenant's Garden Space Share of Expenses is changed during a
Fiscal Year by reason of a change in the rentable area of the Office
Tower Premises or an increase in the rentable area of the Office Tower,
Tenant's Office Tower Share of Expenses and of Taxes and Tenant's Garden
Space Share of
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Expenses shall thereafter be recalculated to reflect such adjustment in
rentable area. If the Tenant's Office Tower Share of Expenses or of Taxes
or Tenant's Garden Space Share of Expenses changes during a Fiscal Year,
Tenant's Office Tower Share of Expenses or of Taxes or Tenant's Garden
Space Share of Expenses for the Fiscal Year shall be determined on the
basis of the number of days during such Fiscal Year at each percentage
share.
(m) "Base Year" means the calendar year ending December 31,
2002.
(n) "Security Deposit" means the letter of credit posted by
Tenant pursuant to Section 22 of this Lease.
(o) "Landlord's Building Address" means:
TrizecHahn Office Properties, Inc.
Alliance Center
Property Management Office
Lenox Road
Atlanta, Georgia 30326
(p) "Landlord's General Address" means:
TrizecHahn Office Properties Inc.
5210 Renaissance Tower
1201 Elm Street
Dallas, Texas 75270
Attention: Senior Vice President
with copies to:
TrizecHahn Office Properties Inc.
100 Colony Square
Suite 600
1175 Peachtree Street, N.E.
Atlanta, Georgia 30361
Attention: Lease Administrator
(q) "Landlord's Billing Address" means:
TrizecHahn Office Properties Inc.
100 Colony Square, Suite 600
1175 Peachtree Street, N.E.
Atlanta, Georgia 30361
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Attention: Lease Administrator
with a copy to Landlord's mortgagee to the extent required
by Paragraph 25.
(r) "Tenant's Notice Address" and "Tenant's Invoice Address"
means, for notices given before the Commencement Date:
Security First Technologies, Inc.
3390 Peachtree Road, Suite 1700
Atlanta, Georgia 30326
Attention: Lisa Wilkie or Bob Stockwell
With a copy (for Tenant's Notices only) to:
Parker Hudson Rainer & Dobbs LLP
285 Peachtree Center Avenue
1500 Marquis Two Office Tower
Atlanta, Georgia 30303
Attention: Kenneth H. Kraft, Esq.
and for notices given after the Commencement Date:
Security First Technologies, Inc.
Alliance Center, Suite 200
Lenox Road
Atlanta, Georgia 30326
Attention: Lisa Wilkie or Bob Stockwell
With a copy to:
Parker Hudson Rainer & Dobbs LLP
285 Peachtree Center Avenue
1500 Marquis Two Office Tower
Atlanta, Georgia 30303
Attention: Kenneth H. Kraft, Esq.
(s) "Brokers" means the following brokers who will be paid by
Landlord in accordance with a separate agreement: FREDERICK RODDY REALTY
and TRIZECHAHN COLONY SQUARE GP LLC and the following brokers who will be
paid by Tenant: NONE.
(t) "Liability Insurance Amount" means $5,000,000.00.
1.2 EXHIBITS.
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The Exhibits listed below are attached to and incorporated in this Lease.
In the event of any inconsistency between such Exhibits and the terms and
provisions of this Lease, the terms and provisions of the Exhibits will
control. The Exhibits to this Lease are:
Exhibit A - Plan Delineating the Premises
Exhibit A-1 - Offer Area #1
Exhibit A-2 - Site Plan
Exhibit A-3 - Legal Description of Land
Exhibit B - Possession and Building Improvements Agreement
Exhibit B-1 - Base Building Improvements
Exhibit B-2 - Estimated Tenant Construction Schedule
Exhibit B-3 - Building Rendering
Exhibit B-4 - Base Building Sample Floor Plate
Exhibit B-5 - Adjustment Area Schedule
Exhibit C - Occupancy Estoppel Certificate
Exhibit D - Rules and Regulations
Exhibit E - Cleaning Standards
Exhibit F - Parking
Exhibit G - [Intentionally Deleted]
Exhibit H - Form of Estoppel Certificate
Exhibit I - Form of SNDA
Exhibit J - Arbitration
Exhibit K - Standby Letter of Credit
1.3 ADDITIONAL DEFINITIONS.
In addition to those terms defined in Section 1.1 and other sections of
this Lease, the following defined terms when used in this Lease have the
meanings indicated:
(a) "Additional Rent" means the Rent payable according to
Section 4.2.
(b) "Affiliate" shall mean with respect to a Person (as defined
in subsection 1.3(m) (i) any Person which directly or indirectly
controls, is controlled by, or is under common control with Tenant, (ii)
any Person resulting from the merger or consolidation of Tenant, or (iii)
any Person which acquires all or substantially all of the assets of
Tenant as a going concern of the business that is being conducted on the
Premises, provided that such transferee assumes in full the obligations
of Tenant under the Lease. For purposes of the foregoing, the term
"control" shall mean possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person,
whether through the ownership of voting securities, by contract or
otherwise.
(c) "Building Business Hours" means the hours from 8:00 a.m. to
7:00 p.m. on Monday through Friday and from 8:00 a.m. to 1:00 p.m. on
Saturday, excluding New Year's Day, Memorial Day, Independence Day, Labor
Day, Thanksgiving Day, Christmas Day and other such legal holidays as are
generally recognized from time to time by the owners of first class
buildings that are similar to the Office Tower in the Buckhead, Atlanta,
Georgia market area,
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provided that no more than two (2) additional holidays shall be
recognized by Landlord during the Term of the Lease (collectively,
"Holidays").
(d) "Common Areas" means certain interior and exterior common
and public areas located on the Land and in the Building as may be
designated by Landlord for the non-exclusive use in common by Tenant,
Landlord and other tenants, and their employees, guests, customers,
agents and invitees. If either the Office Tower or the Garden Space is
connected to other buildings by underground tunnels or elevated bridges
over public streets, Common Areas will include such bridges and tunnels;
provided, however, that Landlord and owners of such other buildings will
have the right in their sole discretion to adopt rules and regulations
relating to bridge and tunnel use. Common Areas shall include, at a
minimum, the Parking Facility, all pedestrian walkways and patios,
landscaped areas, sidewalks, service drives, restrooms, stairways,
decorative malls, plazas, throughways, loading areas, entrances, exits,
driveways and roads, all substantially as depicted on the Site Plan
attached as Exhibit A-2 hereto. Landlord hereby agrees not to make any
material modifications to the main interior entrance lobby to the Office
Tower or the Parking Facility or to any walkways, tunnels, driveways or
roadways providing access to the Building or the Parking Facility, or any
to the other, without first obtaining Tenant's express written consent,
which shall not be unreasonably withheld, conditioned or delayed.
Notwithstanding the limitation provided in the immediately preceding
sentence, Landlord shall be permitted to make alterations to the Common
Areas without the consent of Tenant provided such alterations are in
keeping with the original plan of the Building and Common Areas.
(e) "Construction Administration Fee" means for all work
performed in the Premises, except any initial buildout of the Premises as
set forth in Exhibit B, whether performed by Landlord or Tenant, Tenant
shall pay to Landlord the following fee:
General Contractor - if Landlord is the general contractor
for the project and is performing the work and/or
contracting with the subtrades on Tenant's behalf, the fee
shall be negotiated by the parties at the time of contract.
Project Administration - for all projects where Landlord is
not the General Contractor, a project administration fee
will be charged to cover Landlord's service plan review and
design and construction coordination at the following
rates: (i) $150.00 per hour for professional review and
(ii) $75.00 per hour for administrative oversight. In no
event shall the total cost of said project administration
fee per project exceed three percent (3%) of the total
project cost.
(f) "Expenses" means the aggregate of (i) [intentionally
deleted]; (ii) any and all costs (other than those expressly excluded
below) accrued during each Fiscal Year according to generally accepted
accounting principles consistently applied for operating, managing,
administering, equipping, securing, protecting, repairing, replacing,
renewing, cleaning, maintaining, decorating, inspecting, and providing
water, sewer and other energy and utilities to the Land, Complex,
Building and Common Areas (including, without limitation, the cost of
maintaining any athletic or recreational club, provided the expenses for
such
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club were included on a comparable basis in the Base Year Expenses);
(iii) administrative fees not to exceed three percent (3%) of gross rents
(provided that if Landlord elects to use the services of a managing
agent, Expenses will include, instead of administrative fees, management
fees calculated in the same manner, and subject to the same limitations,
as administrative fees); (iv) fees and expenses (including reasonable
attorney's fees) incurred in contesting the validity of any Laws that
would cause an increase in Expenses; (v) occupancy costs associated with
that portion of the Complex management office attributable to the
management of the Building (including rent at market rates (provided the
size of that portion of the space associated with the management office
does not exceed 1,500 rentable square feet) but excluding all such costs
attributable to any space occupied or used in connection with development
activities in the Complex or leasing or constructing improvements to the
space in the Complex); (vi) capital expenses made by reason of insurance
requirements and costs (whether capital or not) that are incurred in
order to conform to changes subsequent to the Date in any Laws or that
are reasonably and in good faith intended to reduce Expenses or the rate
of increase in Expenses (such costs will not be included in Expenses for
the Base Year and will otherwise be charged to Expenses in annual
installments over the useful life of the items for which such costs are
incurred together with interest at Landlord's actual financing cost, not
to exceed the Prime Rate (as defined herein) [in the case of costs
incurred in order to achieve savings in Expenses, or in the rate of
increase in Expenses, Landlord shall reasonably demonstrate that such
costs shall provide a savings or reduce the rate of increase in Expenses
during the Term and the amount charged to Expenses in any Fiscal Year
shall include only that portion of the amortized cost of the Expense
realized by savings, as reasonably estimated by Landlord]. Expenses will
not include (1) mortgage principal or interest; (2) ground lease
payments; (3) leasing commissions; (4) costs of advertising space for
lease in the Complex; (5) costs for which Landlord is reimbursed by
insurance proceeds or from tenants of the Complex (other than such
tenants' regular contributions to Expenses); (6) any depreciation or
capital expenditures (except as expressly provided in clause (vi) above);
(7) legal fees incurred for negotiating leases or collecting rents; (8)
costs directly and solely related to the maintenance and operation of the
entity that constitutes the Landlord, such as accounting fees incurred
solely for the purpose of reporting Landlord's financial condition; (9)
costs of operating, repairing or maintaining the parking facilities
serving the Complex; (10) costs incurred for or in connection with
leasing, renovating, or improving space to or for tenants of the
Building, including without limitation broker commissions, leasing
commissions, tenant inducement payments, leasehold improvement and/or
decorating costs and "take-over" expenses with respect to space in
another building or the cost of any work furnished by Landlord without
charge as an inducement for Tenant to lease space (i.e. free rent,
improvement allowances); (11) wages and salaries of management or
supervisory personnel above the level of Building Manager, except that
such costs for the General Manager of the city in which the Building is
located may be included to the extent equitably allocable thereto and
such costs are included in Base Year Expenses; (12) costs incurred for
services provided to Tenant or other tenants of the Building which are
reimbursed by Tenant or other such tenants or other third parties as
above standard services, with the effect that Tenant is not substantially
and materially subsidizing extraordinary services provided to other
tenants of the Building; (13) the cost of correcting defects in the
design, construction or initial equipping of the Building (but
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not the costs of normal wear and tear); (14) the cost of complying with
any Laws enacted prior to the Date of this Lease; (15) costs for which
Landlord is reimbursed by insurance proceeds, condemnation proceeds,
third parties (including warranties) or from tenants of the Building
(other than such tenants' regular contributions to Expenses); (16) costs,
including attorney's fees, directly and solely related to the maintenance
and operation of the entity that constitutes the Landlord, such as
accounting fees incurred solely for the purpose of reporting Landlord's
financial condition and disputes regarding the maintenance and operation
of said entity; (17) any fee or expenditure payable by Landlord to any
affiliate, partner, director, officer or shareholder of Landlord, to the
extent that such fee or expenditure exceeds that amount which would be
payable in the absence of such relationship (other than the management
fee set forth above); (18) costs of advertising space for lease in the
Building or Building promotional or entertainment expenses to the extent
such expenses are unique, one-of-a-kind parties or gifts for a specific
tenant, prospective tenant, vendor or other third party, signage
identifying Landlord, the Building manager or a tenant, but excluding any
Building newsletter or seasonal/holiday decorations; (19) costs arising
out of the gross negligence or intentional misconduct of Landlord or
anyone for whom Landlord is legally responsible; (20) costs of selling,
syndicating, financing, mortgaging or transferring any of Landlord
interest(s) in the Building, Land or Complex; (21) costs incurred due to
the violation or failure of Landlord to timely comply with or pay amounts
due as required by Laws or with respect to any contractual requirement,
except for interest which may accrue on delinquent payments during the
pendency of any good faith contest of same and except to the extent that
such failure is caused by Tenant's failure to timely comply with the
terms of this Lease; (22) structural repairs (but not including the
roof); (23) general overhead and reserves; (24) costs incurred by
Landlord in securing any initial governmental approvals to construct
and/or operate the Building, including, without limitation, any impact
fees, development fees, dedications, or other similar fees or charges
paid to any governmental authority in connection with any such
construction and/or operation; (25) the cost of removing, maintaining or
monitoring any Hazardous Substances (as defined in Section 6.2) or the
cost and expense of complying with federal, state or local regulations
regarding same except to the extent such condition is caused by Tenant;
(26) the cost of constructing, installing, operating or maintaining any
special service or facility such as an observatory, broadcasting
facility, luncheon club (but not including any athletic or recreational
club); (27) payments for rental items, the cost of which would constitute
a capital expenditure if such items were purchased; (28) costs for
initial sculptures, paintings and other objects of art located in the
interior or on the exterior of the Building immediately adjacent thereto
(but not including the repair and maintenance of such art items); (29)
any compensation paid to clerks, attendants or other persons in
commercial concessions operated by Landlord, other than compensation paid
such persons for services related to the management or operation of the
Complex; (30) fees of costs assessed as a condition for the right or
privilege of development of the Complex, or any portion thereof,
including, but not limited to, impact fees, building permit fees or other
governmental fees, assessments or charges which are incurred or levied as
a result of the development or expansion of the Complex; and (31) any
costs incurred by Landlord in correcting any latent or structural defects
in the Base Building or Base Building structure (excluding the roof).
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For the Base Year and each Fiscal Year during the Term, the amount
by which those Expenses that vary with occupancy (such as cleaning costs
and utilities) would have increased had the Complex been ninety-five
percent (95%) occupied and operational and had all Complex services been
provided to all tenants will be reasonably determined and the amount of
such increase will be included in Expenses for such Fiscal Year.
Furthermore, if a new type of expense is incurred after the Base Year,
and the first full Fiscal Year's expense for such item exceeds $25,000,
such first full Fiscal Year's expense shall be added to the Expenses for
the Base Year commencing with the first full Fiscal Year that such
expense is included as an Expense, so that Tenant shall only be required
to pay subsequent increases in such expense.
Landlord and Tenant acknowledge that certain of the costs of
management, operation, maintenance, repair and security of the Complex
from time to time may be allocated among and shared by the owners of two
or more of the buildings or developable sites in the Complex (including
the Building) and between two or more properties owned by Landlord in the
Atlanta region. The determination of such costs and their allocation
shall be made by Landlord on an equitable basis in accordance with
generally accepted accounting principles, consistently applied.
Accordingly, the term "Expenses," as used in this Lease, from time to
time shall include some costs, expenses and taxes enumerated above which
were incurred with respect to common facilities in the Complex or other
buildings owned by Landlord in the Atlanta region, but which are
allocated to and shared by the Building and other buildings and
developable sites in accordance with the foregoing. Notwithstanding the
foregoing, where Landlord allocates such costs to the Building, the costs
so allocated must be clearly identified on Landlord's operation expense
statements to Tenant, and the rationale and the underlying method of
allocation must be set forth in reasonable detail. Tenant reserves the
right to challenge the propriety of all allocated costs in accordance
with the terms and conditions of Section 4.6 herein.
(g) "Fiscal Year" means the calendar year.
(h) "Force Majeure" means any acts of God (which, for this
purpose, shall not include adverse (but not catastrophic) weather
conditions except to the extent such adverse weather conditions were of
such a nature as to cause an actual delay in Landlord's Work and occurred
in excess of the normal and customary number of days of adverse weather
for the entire construction period of the Building), governmental
restriction, strikes, labor disturbances, shortages of unusual materials
or supplies or shortages of standard materials and supplies to the extent
such materials or supplies are unavailable due to other Force Majeure
events, or any other cause or event beyond the parties' reasonable
control (but not because of insolvency, lack of funds or other financial
cause), by which either party is hindered or prevented from performance
of any act under this Lease, then performance of such act shall be
excused for the period during which such performance is rendered
impossible; and time for performance shall be extended accordingly.
However, Force Majeure shall not relieve either party from any obligation
under this Lease. No such delay shall constitute an actual or
constructive eviction in whole or in part, or entitle Tenant to any
abatement or diminution of rents or other charges due, or impose any
liability upon Landlord or its agents because of inconvenience to Tenant
or injury to or interruption of
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Tenant's business. Notwithstanding the foregoing: (i) with respect to
Landlord's and Tenant's construction obligations under Exhibit B to this
Lease, no delay described above in this subsection (h) shall be effective
to delay a party's construction obligation unless such delayed party
notifies the other party of the delay within ten (10) business days of
the day such delayed party had actual knowledge of the event giving rise
to such delay; and (ii) no delay described in this subsection (h) shall
be permitted in connection with delays caused by Laws in effect on the
Date or the implementation of same (provided such delay is not
attributable to any misfeasance committed by any governmental entity, in
which event, such delay shall be considered an event of Force Majeure).
(i) "Land" means the real property described in Exhibit A-3
attached hereto, less any portions that may be conveyed separately from
the Building by Landlord from time to time.
(j) "Laws" means any and all present or future federal, state
or local laws, statutes, ordinances, codes, rules, regulations or orders
of any and all governmental or quasi-governmental authorities having
jurisdiction.
(k) "Lease Year" means each successive period of 12 calendar
months during the Term, ending on the same day and month (but not year,
except in the case of the last Lease Year) as the day and month on which
the Expiration Date will occur. If the Commencement Date is not the first
day of a month, the first Lease Year will be greater than 12 months by
the number of days from the Commencement Date to the last day of the
month in which the Commencement Date occurs.
(l) "Parking Facility" shall mean the parking structure
constructed or intended to be constructed solely for the benefit of the
Building (as shown and labeled on the Site Plan). The term "Parking
Facility" also includes any connecting walkways, covered walkways or
other means of access to the Building from the parking structure or lots
and Surface Parking (as defined in Exhibit F).
(m) "Person" means an individual, corporation, partnership,
limited liability company, joint venture, estate, trust, unincorporated
association, any other form of entity, any federal, state, county or
municipal government or any bureau, department or agency thereof and any
fiduciary acting in such capacity on behalf of the foregoing.
(n) "Prime Rate" means the rate of interest announced from time
to time by Citibank, N.A., or any successor to it, as its prime rate. If
Citibank, N.A. or any successor to it ceases to announce a prime rate,
Landlord will designate a reasonably comparable financial institution for
purposes of determining the Prime Rate. If more than one Prime Rate is
announced by Citibank, N.A. or its successor, then Landlord shall
designate the applicable Prime Rate.
(o) "Rent" means the Base Rent, Additional Rent and all other
amounts required to be paid by Tenant under this Lease.
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(p) "Site Plan" means the site plan for the Complex attached as
Exhibit A-2 to this Lease, as the same may be modified as part of the
Plans described in Exhibit B.
(q) "Taxes" means the amount actually incurred or accrued
during each Fiscal Year according to generally accepted accounting
principles, consistently applied, for that portion of the following items
that is allocable to the Land and Building: all ad valorem real and
personal property taxes and assessments, special or otherwise, levied
upon or with respect to the Land or Building, the personal property used
in operating the Building, and the rents and additional charges payable
by tenants of the Building, and imposed by any taxing authority having
jurisdiction; all taxes, levies and charges which may be assessed, levied
or imposed in replacement of, or in addition to, all or any part of ad
valorem real or personal property taxes or assessments as revenue
sources, and which in whole or in part are measured or calculated by or
based upon the Land or Building, the leasehold estate of Landlord or the
tenants of the Building, or the rents and other charges payable by such
tenants; capital and place-of-business taxes, and other similar taxes
assessed relating to the Building; and any reasonable expenses incurred
by Landlord in attempting to reduce or avoid an increase in Taxes,
including, without limitation, reasonable legal fees and costs. Taxes
will not include income, transfer, use, gift, excise, intangibles,
capital stock, estate, succession, inheritance or franchise taxes of
Landlord or other tax imposed upon or measured by Landlord's income or
profit. For purposes of determining Taxes for any Fiscal Year, if any
assessment is payable in installments, Landlord and Tenant agree that,
for purposes of this Lease, only such installments (inclusive of any
interest chargeable thereon by the assessing authority of such
assessment) that would have been due during such Fiscal Year, as and when
such installment would have become due and payable, had Landlord elected
to pay such assessment over the maximum number of installment periods
permitted by the assessing authority shall be included in Taxes for such
Fiscal Year, regardless of whether Landlord in fact so elects to pay the
assessment in installments. Notwithstanding the foregoing, If at any time
during the term of this Lease, the present method of taxation shall be
changed so that in lieu of the whole or any part of taxes, assessment or
governmental charges levied, assessed or imposed on real estate and the
improvements thereon, there shall be levied, assessed or imposed on
Landlord a capital levy or other tax directly on the rents received
therefrom and/or a franchise tax, assessment, levy or charge measured by
or based, in whole or in part, upon such rents for the present or any
future building or buildings on the premises, then all such taxes,
assessments, levies or charges or the part thereof so measured or based,
shall be deemed to be included within the term "Taxes" for the purposes
hereof, but only if such taxes, assessments, levies or charges are
imposed on owners of real property and then only to the extent the clear
legislative intent of such taxes is that they be assessed in lieu of
other Taxes required to be paid by Tenant hereunder.
The term "Office Tower Taxes" for any Fiscal Year shall mean
eighty-seven percent (87%) of the total Taxes for such Fiscal Year.
Notwithstanding the foregoing, in the event the Land is subdivided into
two (2) tax parcels, one (1) for the Office Tower and related Common
Areas and one (1) for the Parking Facility and related Common Areas,
Taxes for the Office Tower tax parcel will be allocated one hundred
percent (100%) to the
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Office Tower and Taxes for the Parking Facility tax parcel will be
allocated between the Office Tower and the Garden Space on an equitable
basis, based on the relative values of the Garden Space and the other
portions of the Parking Facility not included in the Garden Space.
Base Year Taxes shall include Taxes the first tax year of the
Lease Term (the "Base Tax Year") during which the Building is 100% fully
assessed and 100% fully taxed as a 100% completed structure (excluding
tenant improvements, which will be taken into account as part of the
"grossing up" of Taxes and Expenses if the Building is not at least 95%
occupied). The inclusion of Tenant's obligations with respect to Taxes in
this Lease is intended to assure that Tenant pays Tenant's Share of
increases in Taxes due to increases in tax rates and assessments of the
Building, the Common Areas and the Land. It is also intended that the
Base Rent shall include Taxes applicable to the Land and the fully
completed Building and Common Areas at normal tax rate and assessment
levels as of the Base Tax Year. Accordingly:
(i) Tenant shall not be responsible for any increase in Taxes
which results solely from the creation of additional
rentable area on the Land or in the Building.
(ii) If Landlord contests the assessment for Tenant's Base Tax
Year, then Landlord, at Landlord's sole cost and expense,
shall take reasonable steps to contest the assessment in
later tax years as well. As long as Tenant leases more than
fifty percent (50%) of the Building, if at any time during
the Lease Term Landlord has chosen not to contest the Taxes
for a Fiscal Year, Tenant may, at Tenant's option, and at
its expense, bring appropriate proceedings in Landlord's
name or in Tenant's name or both for contesting any
assessment for such Fiscal Year during the Lease Term.
Tenant shall notify Landlord of Tenant's intention to
contest the Taxes, and Landlord shall have the option of
being included in the process. The net amount of Taxes
recovered as a result of such proceedings (e.g., the amount
recovered after payment of all sums necessary to attain
such recovery) shall be shared between Landlord and Tenant,
with Tenant receiving Tenant's Share thereof; however, in
no event shall Tenant's amount received exceed the amount
which Tenant contributed to the payment of the subject
Taxes. Landlord shall cooperate with Tenant with respect to
the proceedings so far as is reasonably necessary.
(iii) Any increase in Taxes for the Building or the Land
resulting from a refinancing or sale of the Building or the
Land in a transaction between Affiliates which results in
an artificially inflated value shall be added to the Base
Year Expenses.
2. GRANT OF LEASE.
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2.1 DEMISE.
Subject to the terms, covenants, conditions and provisions of this Lease,
Landlord leases to Tenant and Tenant leases from Landlord the Premises,
together with the non-exclusive right to use the Common Areas, for the
Term.
2.2 QUIET ENJOYMENT.
Landlord covenants that during the Term Tenant will have quiet and
peaceable possession of the Premises, subject to the terms, covenants,
conditions and provisions of this Lease, and Landlord will not disturb
such possession except as expressly provided in this Lease.
2.3 LANDLORD AND TENANT COVENANTS.
Landlord covenants to observe and perform all of the terms, covenants and
conditions applicable to Landlord in this Lease. Tenant covenants to pay
the Rent when due, and to observe and perform all of the terms, covenants
and conditions applicable to Tenant in this Lease.
3. TERM.
3.1 COMMENCEMENT DATE.
"Commencement Date" means the first day of the Term, which will be the
date that is fourteen (14) days after the date on which Landlord has
given Tenant notice that the Improvements (as defined in Exhibit B) and
the Tenant Leasehold Improvements (as defined in Exhibit B) are
Substantially Completed (as defined in Exhibit B); provided, however,
that such notice shall not be effective unless the Improvements and the
Tenant Leasehold Improvements are, in fact, Substantially Completed at
the time such notice is given.
3.2 EARLY OCCUPANCY.
Tenant has no right to enter the Premises until Landlord tenders
possession; provided, however, that Landlord will be obligated to tender
possession of the Premises to Tenant for the fourteen (14) days
immediately preceding the Scheduled Commencement Date ("Tenant's Early
Entry Period"), and provided, further, Landlord hereby gives permission
for Tenant to enter the Premises prior to Tenant's Early Entry Period, so
that Tenant may do such work as may be required to prepare the Premises
for Tenant's occupancy, including the installation of cabling, telephone
equipment, furniture, computer and other office systems. If Tenant so
enters the Premises prior to the Scheduled Commencement Date, Tenant
shall adopt a construction schedule consistent with the Landlord's
construction schedule and will work in harmony with Landlord and will not
interfere with or delay the performance of Landlord's Work, or with the
work of any other tenant or occupant of the Building. All acts of any of
Tenant's contractors, subcontractors or laborers are the responsibility
of Tenant. In addition, any such access shall be consistent with
generally accepted construction practices and in accordance with any and
all applicable regulatory requirements, but Landlord agrees to make
reasonable good faith efforts to afford Tenant such access in accordance
with the foregoing. At all times while Tenant is in occupancy of the
Premises prior to the Scheduled Commencement Date for the above
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stated purposes, Tenant will be subject to and will comply with all of
the terms and provisions of the Lease, except that no Base Rent or
Additional Rent will be payable by Tenant prior to the Scheduled
Commencement Date. If at any time such access causes or threatens to
cause disharmony or interference, including labor disharmony, Landlord
will have the right to require such appropriate corrective measures as
will eliminate such condition with respect to Landlord's work in the
Building or Complex. Tenant shall have the right to use the freight
elevator and Building loading dock after reasonable notice to Landlord,
without charge therefor. In addition to the foregoing, during Tenant's
Early Entry Period, Landlord and Tenant shall cooperate in good faith to
ensure that Tenant's activities within the Premises continue without
interruption, and in the event any such other activities cause or
threaten to cause disharmony or interference, including labor disharmony,
with respect to Tenant's activities within the Premises, Landlord will
act promptly to assure that Tenant's work continues unimpeded.
3.3 DELAYED OCCUPANCY.
(a) If, due to Force Majeure, Landlord fails to tender
possession of the Premises to Tenant on or before the Scheduled
Commencement Date, Landlord will not be in default or liable in damages
to Tenant, nor will the obligations of Tenant be affected, provided,
however, that the Commencement Date will be extended automatically by one
day for each day of the period after the Scheduled Commencement Date to
the day on which Landlord tenders possession of the Premises to Tenant
less any portion of that period attributable to Tenant's Delays as more
particularly described in Exhibit B. Both Landlord and Tenant agree to
cooperate with each other in good faith to meet the dates of performance
specified on the Construction Schedule attached hereto as Exhibit B-2.
The failure to meet the task dates specified in the Construction Schedule
as a result of either party's inability to perform, cooperate or provide
information or approvals necessary shall also be considered either a
Tenant Delay or Landlord Delay (both as more particularly described in
Exhibit B attached hereto), as applicable. If, for any reason, the date
of Substantial Completion of the Tenant Leasehold Improvements (as more
particularly described in Exhibit B attached hereto) occurs after the
Scheduled Commencement Date and the aggregate number of days of delay
beyond the Scheduled Commencement Date exceed the aggregate number of
days attributable to Tenant Delay and Force Majeure, Landlord shall
reimburse Tenant for such delay as follows:
(i) If the Commencement Date is delayed during the period
beginning September 1, 2001 through September 30, 2001,
then:
(A) Landlord agrees to pay to Tenant on September 1,
2001, the amount by which (x) any holdover rent and
additional rent resulting from Tenant's continued occupancy
pursuant to its lease ("Existing Lease") at Lenox Towers,
3390 Peachtree Road, Atlanta, Georgia ("Existing Space")
for the month of September, 2001 exceeds (y) the fixed rent
and additional rent payable for Tenant's Existing Lease of
the Existing Space for the month of August, 2001.
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(B) Landlord shall be responsible for (1) any
consequential and indirect damages [which Tenant is
obligated to pay to the landlord of its Existing Space] and
any defense costs incurred by Tenant in defending any
action brought by the landlord under its Existing Lease
resulting from Tenant's failure to vacate the Existing
Space upon the expiration date of its Existing Lease, and
(2) any fixed rent, additional rent and relocation costs,
if any, for September, 2001 resulting from Tenant's
occupancy of space other than the Existing Space
("Relocation Space") as a result of an actual or threatened
dispossessory action that are in excess of the fixed rent
and additional rent payable under Tenant's Existing Lease
for August, 2001, and (3) fixed rent and additional rent
payable under Tenant's Existing Lease for up to eighteen
(18) days following the Commencement Date to the extent not
paid pursuant to clause (A) above. Tenant hereby agrees to
mitigate its damages resulting from any such delay. In
addition to the foregoing, if Tenant is required to occupy
space other than the Existing Space as a result of an
actual or threatened dispossessory action, Tenant shall
notify Landlord and Landlord shall reasonably control the
terms and conditions under which Tenant selects,
negotiates, and moves to any such alternative space.
(ii) If the Commencement Date is delayed after September 30,
2001, then:
(A) On October 1, 2001 and on the first (1st) day of
each calendar month thereafter until the Commencement Date
occurs, Landlord shall pay to Tenant the sum of Two Hundred
Fifty Thousand and No/100 Dollars ($250,000.00), not as a
penalty, but as liquidated damages for any costs incurred
by Tenant as a result of such delayed delivery of the
Premises after September 30, 2001 (it being agreed that
Tenant's actual damages would be difficult or impossible to
ascertain and that such sum or sums constitute a reasonable
pre-estimate of such damages). For example, if the
Commencement Date is delayed until November 10, 2001, such
liquidated damages would be $500,000 of which $250,000
would be payable on October 1, 2001 and $250,000 would be
payable on November 1, 2001.
(B) In addition to the liquidated damages described in
(A) above, Landlord shall also be responsible for
consequential and indirect damages resulting from Tenant's
failure to vacate the Existing Space upon its Existing
Lease expiration date due to Landlord's failure to deliver
the Premises to Tenant on or prior to October 1, 2001
[which Tenant is obligated to pay the landlord of its
Existing Space and any reasonable defense costs incurred by
Tenant in defending any action brought by the landlord
under its Existing Lease resulting from Tenant's failure to
vacate the Existing Space upon the expiration date of its
Existing Lease].
(b) If Landlord does not tender possession of the full Premises
to Tenant on or before the date six (6) months after the Scheduled
Commencement Date (plus any period of delay caused by Force Majeure
and/or Tenant's Delays as described in Exhibit B),
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Tenant will have the right to terminate the Lease by delivering notice of
the termination to Landlord not more than thirty (30) days after the
expiration of such six (6) month period. Upon a termination pursuant to
the foregoing sentence, each party will, upon the other's request,
execute and deliver an agreement in recordable form containing a release
and surrender of all right, title and interest in and to the Lease;
neither Landlord nor Tenant will have any further obligations to each
other; and Landlord will refund to Tenant any sums paid to Landlord by
Tenant in connection with the Lease, and will return to Tenant any letter
of credit provided by Tenant to Landlord pursuant to this Lease. Such
postponement of the commencement of the Term, termination and refund
right, and, if applicable, payment of the other amounts described above,
will be in full settlement of all claims that Tenant might otherwise have
against Landlord by reason of Landlord's failure to tender the Premises
by the Scheduled Commencement Date.
3.4 SURRENDER.
Upon the expiration or other termination of the Term, Tenant will
immediately vacate and surrender possession of the Premises in good
order, repair and condition, except for ordinary wear and tear, damage
due to casualty or condemnation and repairs required to be performed by
Landlord or otherwise due to Landlord's failure to perform its
obligations under this Lease. Upon the expiration or other termination of
the Term, Tenant agrees to remove (a) all changes, additions and
improvements to the Premises the removal of which Landlord requested or
approved according to Section 9.1 at the time Landlord consented to their
installation, and (b) all of Tenant's trade fixtures, office furniture,
office equipment and other personal property other than Tenant's wiring
and cabling. Tenant will pay Landlord on demand the cost of repairing any
damage to the Premises or Building caused by the installation or removal
of any such items. Any of Tenant's property that Tenant is obligated to
remove but remains in the Premises will be conclusively deemed to have
been abandoned by Tenant and may be appropriated, stored, sold, destroyed
or otherwise disposed of by Landlord without notice or obligation to
account to or compensate Tenant, and Tenant will pay Landlord on demand
all reasonable costs actually incurred by Landlord relating to such
abandoned property.
3.5 HOLDING OVER.
Tenant understands that, except as herein expressly provided, it does not
have the right to hold over at any time and Landlord may exercise any and
all remedies at law or in equity to recover possession of the Premises,
as well as any damages incurred by Landlord, due to Tenant's failure to
vacate the Premises and deliver possession to Landlord as required by
this Lease. Notwithstanding the foregoing, Tenant may hold over after the
Expiration Date for a period of up to six (6) months ("Permitted Holdover
Period") by providing Landlord with one hundred and eighty (180) days
advance notice prior to the expiration of the Lease Term or any renewal
thereof. During the Permitted Holdover Period Tenant shall pay a monthly
Base Rent, payable in advance, equal to one hundred fifty percent (150%)
of monthly Base Rent payable during the last year of the Term or any
renewal thereof, and Tenant will be bound by all of the other terms,
covenants and agreements of this Lease, including Additional Rental, as
the same may apply to a month-to-month tenancy. Tenant may, upon forty
(40) days advance notice to Landlord given at any time during the
Permitted Holdover Period, terminate such Permitted Holdover Period as of
the last day of
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a calendar month. If Tenant holds over after the Expiration Date without
notice to Landlord or beyond the Permitted Holdover Period, Tenant will
be deemed a tenant at sufferance, at a daily Base Rent, payable in
advance, equal to 200% of the Base Rent and Additional Rent per day
payable during the last year of the Term, and Tenant will be bound by all
of the other terms, covenants and agreements of this Lease, as the same
may apply to a tenancy at sufferance. No such hold over by Tenant shall
operate to extend the Term of this Lease; no payments of money by Tenant
to Landlord after the expiration or earlier termination of this Lease
shall reinstate, continue or extend the Term of this Lease; and no
extension of this Lease after the expiration or earlier termination
thereof shall be valid unless and until the same shall be reduced to
writing and signed by both Landlord and Tenant. In addition to the
foregoing, if Tenant holds over after the Expiration Date without notice
to Landlord or beyond the Holdover Period and Landlord elects to cause
Tenant to be ejected from the Premises through judicial process and
without in any way limiting Landlord's rights under herein, Tenant agrees
that Landlord will not be required to deliver Tenant more than one (1)
days' advance notice to vacate prior to Landlord's filing of
dispossessory suit.
4. RENT.
4.1 BASE RENT.
Commencing on the Commencement Date and then throughout the Term, Tenant
agrees to pay Landlord Base Rent according to the following provisions.
Base Rent during each Lease Year (or portion of a Lease Year) will be
payable in monthly installments in the amount specified for such Lease
Year (or portion) in Section 1.1(i), in advance, on or before the first
day of each and every month during the Term. However, if the Term
commences on other than the first day of a month or ends on other than
the last day of a month, Base Rent for such month will be prorated on a
daily basis for the portion of such month falling within the Term and
prior to the expiration or termination thereof.
4.2 ADDITIONAL RENT.
Tenant agrees to pay Landlord, as Additional Rent, in the manner provided
below:
(a) Determination of Additional Rent. The determination of
Additional Rent for the Office Tower Premises and the Garden Space
Premises will be made independently as follows:
(i) With respect to the Office Tower Premises
only, for each Fiscal Year subsequent to the Base Year that
contains any part of the Term, Tenant shall pay an amount
as Additional Rent equal to the sum of (A) Tenant's Office
Tower Share of Expenses of the amount by which Expenses for
such Fiscal Year exceed Expenses for the Base Year
("Additional Expenses"), plus (B) Tenant's Office Tower
Share of Taxes of the amount by which Office Tower Taxes
for such Fiscal Year exceed Office Tower Taxes for the Base
Tax Year ("Additional Taxes"); and
(ii) With respect to the Garden Space Premises
only, for each Fiscal Year (including, without limitation,
the Base Year) that contains any part of the
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Term, Tenant shall pay an amount as Additional Rent equal
to the sum of (A) Tenant's Garden Space Share of Expenses
of the total Expenses for such Fiscal Year, plus (B)
Tenant's Garden Space Share of Taxes of the total amount of
Taxes for such Fiscal Year.
(b) Estimated Payments. Prior to or as soon as practicable
after the beginning of each Fiscal Year subsequent to the Base Year,
Landlord will notify Tenant of Landlord's estimate of Tenant's Additional
Rent for the ensuing Fiscal Year. On or before the first day of each
month during the ensuing Fiscal Year, Tenant will pay to Landlord, in
advance, 1/12 of such estimated amounts, provided that until such notice
is given with respect to the ensuing Fiscal Year, Tenant will continue to
pay on the basis of the prior Fiscal Year's estimate until the month
after the month in which such notice is given. In the month Tenant first
pays based on Landlord's new estimate, Tenant will pay to Landlord 1/12
of the difference between the new estimate and the prior year's estimate
for each month which has elapsed since the beginning of the current
Fiscal Year. If at any time or times it appears to Landlord that Tenant's
Additional Rent for the then-current Fiscal Year will vary from
Landlord's estimate by more than 5%, Landlord may, by notice to Tenant,
revise its estimate for such year and subsequent payments by Tenant for
such year will be based upon the revised estimate.
(c) Annual Settlement. As soon as practicable after the close
of each Fiscal Year, Landlord will deliver to Tenant its statement of
Expenses and Taxes for such Fiscal Year, Tenant's Office Tower Share of
Additional Expenses and Additional Taxes for such Fiscal Year and
Tenant's Garden Space Share of the Expenses and Taxes for such Fiscal
Year. If on the basis of such statement Tenant owes an amount that is
less than the estimated payments previously made by Tenant for such
Fiscal Year, Landlord will either refund such excess amount to Tenant or
credit such excess amount against the next payment(s), if any, due from
Tenant to Landlord provided that in no instance will there be any credit
or refund respecting the Office Tower Premises only below the Base Year
amount for Expenses and Taxes. If on the basis of such statement Tenant
owes an amount that is more than the estimated payments previously made
by Tenant for such Fiscal Year, Tenant will pay the deficiency to
Landlord within 30 days after the delivery of such statement. If this
Lease commences on a day other than the first day of a Fiscal Year or
terminates on a day other than the last day of a Fiscal Year, Tenant's
applicable Share of Additional Expenses, Additional Taxes or Expenses (as
the case may be) applicable to the Fiscal Year in which such commencement
or termination occurs will be prorated on the basis of the number of days
within such Fiscal Year that are within the Term.
(d) Final Payment. Tenant's obligation to pay the Additional
Rent and Landlord's obligation to refund or credit any overpayment of
Additional Rent provided for in this Section 4.2 which is accrued but not
paid for periods prior to the expiration or early termination of the Term
will survive such expiration or early termination. Prior to or as soon as
practicable after the expiration or early termination of the Term,
Landlord shall submit an invoice to Tenant stating Landlord's estimate of
the amount by which Tenant's Additional Rent obligation through the date
of such expiration or early termination will exceed Tenant's estimated
payments of Additional Rent for the Fiscal Year in which such
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expiration or termination has occurred or will occur. Tenant will pay the
amount of any such excess to Landlord, or Landlord will refund any
overpayment to Tenant, within forty-five (45) days after the date of
Landlord's invoice, provided that in no instance will there be any refund
respecting the Office Tower Premises only below the Base Year amount for
Expenses and Taxes.
4.3 TERMS OF PAYMENT.
All Base Rent, Additional Rent and other Rent will be paid to Landlord in
lawful money of the United States of America, at Landlord's Billing
Address or to such other person or at such other place as Landlord may
from time to time designate in writing, without notice or demand and
without right of deduction, abatement or setoff, except as otherwise
expressly provided in this Lease.
4.4 LATE CHARGE; INTEREST ON LATE PAYMENTS.
All amounts payable under this Lease by Tenant to Landlord or Landlord to
Tenant, if not paid when due, will bear interest from the due date until
paid at the lesser of the highest interest rate permitted by law or 5% in
excess of the then-current Prime Rate. In addition to any interest owed,
Tenant shall also pay a late charge of fifty ($50.00) dollars for
processing late payments. Notwithstanding any provisions to the contrary
in this Section 4.4, Landlord shall not charge Tenant a late fee or
interest under this Section 4.4 with respect to the first two (2) late
payments of monthly installments of Rent to be paid by Tenant under this
Lease during any twelve (12) month period during the Lease Term, as it
may be extended, but during the remainder of that twelve (12) month
period, Landlord maintains its right to assess a late fee in accordance
with the terms and provisions of this Section 4.4 with respect to any
subsequent late payments of Rent to be paid by Tenant under this Lease.
In addition to the foregoing, the Landlord may assess a late fee in
accordance with the terms and provisions of this Section 4.4 with respect
to any subsequent late payments of Rent in the event Landlord has
previously given Tenant ten (10) notices that Tenant is late with respect
to such payment obligations during the Term of the Lease.
4.5 RIGHT TO ACCEPT PAYMENTS.
No receipt by Landlord of an amount less than Tenant's full amount due
will be deemed to be other than payment "on account", nor will any
endorsement or statement on any check or any accompanying letter effect
or evidence an accord and satisfaction. Landlord may accept such check or
payment without prejudice to Landlord's right to recover the balance or
pursue any right of Landlord. Subject to Tenant's option of remaining in
the Premises pursuant to the Holdover Period described in Section 3.5, no
payments by Tenant to Landlord after the expiration or other termination
of the Term, or after the giving of any notice (other than a demand for
payment of money) by Landlord to Tenant, will reinstate, continue or
extend the Term or make ineffective any notice given to Tenant prior to
such payment. After notice or commencement of a suit, or after final
judgment granting Landlord possession of the Premises, Landlord may
receive and collect any sums of Rent due under this Lease, and such
receipt will not void any notice or in any manner affect any pending suit
or any judgment obtained.
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4.6 TENANT'S AUDIT RIGHT
Landlord shall maintain complete and accurate books and records detailing
all Expenses and Taxes for not less than the preceding six (6) years.
Landlord may keep the books and records at the Building or at Landlord's
regional office in Atlanta, Georgia. Within ninety (90) days of Tenant's
receipt of Landlord's annual statement and upon thirty (30) days notice,
Tenant and/or its representatives (which shall not be compensated on a
contingency fee basis for this audit) shall have the right, at Tenant's
expense, to examine (but not to copy), and audit during normal business
hours, Landlord's books and records pertaining to the Expenses for either
or both of the two (2) preceding years to enable Tenant to verify the
accuracy thereof. Landlord shall reasonably cooperate with Tenant in any
such examination. Any information reviewed by Tenant and/or its
representatives shall be kept confidential and may only be disclosed as
set forth in Section 26.10. If Tenant in good faith contends an annual
statement of Additional Rent indicates noncompliance with the provisions
of this Lease or otherwise contains errors, Tenant shall notify Landlord
in writing informing Landlord of the amount of the overpayment, and
Landlord shall pay such amount within thirty (30) days with interest
thereon at the rate specified in Section 4.4 above, unless Landlord in
good faith contests such amount. If Landlord in good faith contests such
amount, then either Landlord or Tenant shall have the right, upon notice
to the other, to initiate the following dispute resolution procedure:
Tenant and Landlord shall endeavor to reconcile such dispute within
thirty (30) days after the notice from Tenant. If the parties are unable
to resolve such dispute, they shall jointly select a third, independent
party who shall make a final and binding decision within thirty (30) days
after being selected. If the parties are unable to agree upon a third
party arbitrator, such third party shall be selected in accordance with
the rules of the American Arbitration Association as practiced in
Atlanta, Georgia. The third party's fee shall be paid by the party
against whom such decision is rendered. The cost of Tenant's review shall
be borne by the Tenant, except that if it is determined that the Expenses
reported by Landlord are in excess of one hundred five (105%) percent of
the actual amount of Expenses and Taxes, then if (i) Landlord fails to
dispute such finding, or (ii) Landlord agrees with such finding, or (iii)
following a dispute of Tenant's audit by Landlord the dispute resolution
establishes that Tenant was overcharged by more than 5% as set forth
above, then Tenant's reasonable actual costs of said audit shall be
payable by Landlord on demand. Any overpayment by Tenant shall be
credited to Tenant and any undercharge shall be paid by Tenant as soon as
reasonably possible. Except as hereinafter provided respecting a
"Material Discrepancy", failure by Tenant to contest or dispute the
allocation of Additional Rent within twenty-four (24) months of the date
any annual statement for Additional Rent for a Fiscal Year is submitted
to Tenant (a) is deemed a waiver of the applicable audit or dispute right
and any right to contest the Additional Rent charges (undercharges or
overcharges) for the applicable Lease years; (b) is deemed acceptance of
the Additional Rent charges as submitted to and reviewed by Tenant; and
(c) CONSTITUTES FULL RELEASE OF LANDLORD BY TENANT FOR ANY OVERCHARGES of
Additional Rent more than two (2) years old. If a review by Tenant
discloses a discrepancy in a line item of more than $15,000 for the
Fiscal Year being reviewed (a "Material Discrepancy") and (i) Landlord
fails to dispute such discrepancy, or (ii) Landlord agrees with such
discrepancy, or (iii) following a dispute of Tenant's audit by Landlord
the dispute resolution procedure described above confirms such a
discrepancy, then Tenant shall have the right to review
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Landlord's records with respect to that line item for the five (5) Fiscal
Years immediately prior to the Fiscal Year in which the Material
Discrepancy occurred. The foregoing provisions shall survive termination
or expiration of the Lease. Tenant shall not be entitled to conduct such
an audit if Tenant is otherwise in Default under this Lease.
5. CONDITION OF PREMISES.
5.1 ACCEPTANCE OF PREMISES.
Subject to any provision of this Lease concerning the making of Tenant
Leasehold Improvements by Landlord in the Premises (if any), by taking
possession of the Premises hereunder, Tenant accepts the Premises as
being in good order, condition and repair, and otherwise as is, where is
and with all faults, except with respect to punchlist items as provided
in Section 5.2, latent defects (per the terms and conditions described in
Exhibit B), matters that are within Landlord's maintenance and repair
obligations under this Lease, and warranted matters as provided in
Section 5.3. Except as may be expressly set forth in this Lease,
including Exhibit B, Tenant acknowledges that neither Landlord, nor any
employee, agent or contractor of Landlord has made any representation or
warranty concerning the Land, Building, Common Areas or Premises, or the
suitability of either for the conduct of Tenant's business. The Premises
do not include any areas above the finished ceiling or below the finished
floor covering installed in the Premises or any other areas not shown on
Exhibit A as being part of the Premises.
5.2 COMPLETION OF PUNCHLIST. Landlord shall proceed as diligently as
reasonably possible to complete or repair any "punchlist" defects listed
in the punchlist prepared by Landlord's Representative and Tenant's
Representative, but in any event such "punchlist" defects shall be
completed within ninety (90) days after the date of Landlord's receipt
thereof.
5.3 WARRANTIES. Landlord agrees, at Landlord's expense (and not as an
Expense), to obtain and to use reasonable efforts to enforce for the
benefit of Tenant, warranties from its contractors and consultants with
respect to the construction of the Building, the Parking Facility, the
Tenant Leasehold Improvements to the Premises and site improvements
against defective workmanship and materials for the period of one (1)
year from the Commencement Date. Thereafter, Landlord shall assign to
Tenant, and Tenant shall have the benefit of, any and all guarantees of
workmanship and materials which it may receive with respect to the Tenant
Leasehold Improvements made to the Premises.
6. USE AND OCCUPANCY.
6.1 USE.
(a) Tenant agrees to use and occupy the Premises only for the
Use described in Section 1.1(f), or for such other purpose as Landlord
expressly authorizes in writing, which authorization shall not be
unreasonably withheld, conditioned or delayed.
(b) The use of the Premises permitted under Section 6.1(a)
shall not include, and Tenant shall not use, or permit the use of, the
Premises or any part thereof for: (i) the offices or business of a
governmental or quasi-governmental bureau, department or agency, or (ii)
conduct or maintenance of any gambling or gaming activities or any
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political activities or any club activities, or a school (other than
training of Tenant's employees, customers or vendors in the ordinary
course of Tenant's business) or employment or placement agency (other
than for Tenant conducted in the ordinary course of Tenant's business).
6.2 COMPLIANCE.
(a) Tenant agrees to use the Premises in a safe, careful and
proper manner, and to comply with all Laws applicable to Tenant's use and
occupancy of the Premises. If, due to (i) the nature or manner of any use
or occupancy of the Premises by Tenant other than the Use, or (ii) a
Default by Tenant, Landlord is obligated to make any improvements or
alterations to the Building, or change services provided to Tenant, in
order to comply with applicable Laws, then Tenant will pay all costs of
the required improvements, alterations or changes in services. Before
making any such improvements and alterations or changes in services,
however, Landlord will give notice of the necessity thereof, and Tenant
shall not have any obligation with respect thereto if Tenant responds to
such notice within ten (10) days after receipt thereof, indicating
Tenant's intention to rectify the condition necessitating such action by
Landlord, and thereafter Tenant diligently proceeds to rectify such
condition diligently and in a manner reasonably satisfactory to Landlord.
Tenant shall have the right to contest, without cost to Landlord, the
validity or application of such Law required to be complied with by
Tenant or Landlord and may postpone compliance therewith provided such
contest does not subject Landlord to criminal prosecution for
non-compliance therewith, and further provided Tenant promptly pays all
fines, penalties and other costs (and interest thereon) imposed on
Landlord as a result of such non-compliance.
(b) Landlord and Tenant agree that, during the Term, each will
comply with all Laws governing, and all procedures established by
Landlord for, the use, abatement, removal, storage, disposal or transport
of any substances, chemicals or materials declared to be, or regulated
as, hazardous or toxic under any applicable Laws ("Hazardous Substances")
and any required or permitted alteration, repair, maintenance,
restoration, removal or other work in or about the Premises, Building or
Land that involves or affects any Hazardous Substances. Each party will
indemnify and hold the other and the other's "Affiliates" (as defined in
Section 13.1) harmless from and against any and all claims, costs and
liabilities (including reasonable attorneys' fees) arising out of or in
connection with any breach by such party of its covenants under this
Section 6.2(b). The parties' obligations under this Section 6.2(b) will
survive the expiration or early termination of the Term.
(c) The parties hereby agree that throughout the Term of this
Lease, the Landlord shall be responsible for compliance with the
Americans With Disabilities Act of 1990 and all regulations issued by the
U.S. Attorney General or other authorized agencies under the authority of
such Act ("ADA") in the Common Areas of the Building (including but not
limited to elevators) and that Tenant shall be responsible for compliance
with the ADA in the Premises. Tenant agrees that in the event it provides
any plans or specifications for improvements, alterations or additions to
the Premises pursuant to the terms and conditions of this Lease, Tenant
shall be obligated to cause such plans to conform to all then applicable
requirements of the ADA and shall otherwise cause them to be in
accordance with the agreements contained in this Section 6.2(c) and
Tenant shall notify Landlord of
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any particular requirements that Tenant may have to enable Landlord to
meet its obligations under this Section 6.2(c). Landlord and Tenant
covenant and agree to reimburse and indemnify each other for any expenses
incurred by the indemnified party due to the indemnifying party's failure
to conform to the requirements of the ADA as agreed to in this Section
6.2(c), including, but not limited to, the cost of making any
alterations, renovations or accommodations required by the ADA, or any
governmental enforcement agency, or any court, any and all fines, civil
penalties and damages awarded resulting from a violation of the ADA and
all reasonable legal expenses incurred in defending such claims made
under the ADA or in enforcing this indemnification, including, but not
limited to, reasonable attorney's fees. Such indemnification shall
survive the expiration or termination of this Lease.
6.3 OCCUPANCY.
Tenant will not do or permit anything which obstructs or interferes with
other tenants' rights or with Landlord's providing Building services, or
which injures or annoys other tenants. Tenant will not cause, maintain or
permit any nuisance in or about the Premises and will keep the Premises
free of debris, and anything of a dangerous, noxious, toxic or offensive
nature or which could create a fire hazard or undue vibration, heat or
noise. If any item of equipment, building material or other property
brought into the Building by Tenant or on Tenant's request causes a
dangerous, noxious, toxic or offensive effect (including an environmental
effect) and in Landlord's reasonable opinion such effect will not be
permanent but will only be temporary and is able to be eliminated, then
Tenant will not be required to remove such item, provided that Tenant
promptly and diligently causes such effect to be eliminated, pays for all
costs of elimination and indemnifies Landlord against all liabilities
arising from such effect. Tenant will not make or permit any use of the
Premises which may jeopardize any insurance coverage, increase the cost
of insurance or require additional insurance coverage. If by reason of
Tenant's failure to comply with the provisions of this Section 6.3, any
insurance premiums are increased, then Landlord may require Tenant to
immediately pay Landlord as Rent the amount of the increase in insurance
premiums. Notwithstanding the foregoing, Landlord shall not so charge
Tenant for any such increase in insurance premiums if Landlord has given
Tenant notice thereof and the reason therefor and Tenant responds to such
notice within ten (10) days after receipt thereof, indicating Tenant's
intention to rectify the condition causing such increase and thereafter
Tenant diligently proceeds to rectify such condition in a manner
reasonably satisfactory to Landlord.
6.4 COMMON FACILITIES.
Landlord reserves, for Landlord's exclusive use, any of the following
(other than those installed for Tenant's exclusive use) that may be
located in the Premises: janitor closets, stairways and stairwells; fan,
mechanical, electrical, telephone and similar rooms; and elevator, pipe
and other vertical shafts, flues and ducts. Notwithstanding the
foregoing, Tenant shall have the right to use all of such areas,
including the Building's stairwells for daily intra-office transit and
the plenum within the Premises and Common Areas, as well as (subject to
Section 6.5 herein) riser conduit within the Building, for Tenant's
wiring and
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cabling and other facilities required for Tenant's operations in the
Premises consistent with Tenant's Use thereof. With the exception of
Tenant's right of access to the plenum within the Premises, Tenant's
right to use all other areas of the Building and Common Areas for the
foregoing purposes shall be subject to Landlord's consent, said consent
not to be unreasonably withheld, conditioned or delayed.
6.5 SERVICE PROVIDERS.
Tenant may use any reputable telecommunications, Internet, data
transmission and other service providers as Tenant may select for the
operation of Tenant's business in the Premises, and such service provider
will be afforded access to the Land, the Building, the Building's risers
and conduit and Tenant's Premises, at no cost to Tenant (either directly
or indirectly by reason of a charge by Landlord to such service
provider), subject in each instance to reasonable Rules and Regulations
that Landlord may promulgate respecting licensed service providers. To
the extent Tenant requires more riser capacity in the Office Tower than a
percentage equal to "Tenant's Office Tower Share of Expenses" of the
total riser capacity in the Office Tower, Tenant's access to and use of
Building's risers, conduits and towers for such extraordinary capacity
shall be subject to then current space availability as reasonably
determined by Landlord. Tenant's service providers shall not be subject
to fees for such access. Tenant, or Tenant's service providers, shall
utilize existing risers and distribution systems in the Building, if
available, which Landlord hereby agrees to maintain in a first class
manner comparable with other similar first class (Class A) office
buildings in the Buckhead, Atlanta, Georgia market area.
7. SERVICES AND UTILITIES.
7.1 LANDLORD'S STANDARD SERVICES.
During the Term, Landlord will operate and maintain the Building in
compliance with all applicable Laws which are not the obligation of
Tenant and according to those standards from time to time prevailing for
office buildings of similar age, quality and type in the area in which
the Building is located. Tenant hereby acknowledges that the services
described herein shall be subject to occasional interruption as required
for typical maintenance and repair. Landlord will provide the following
services according to such standards, the costs of which will be included
in Expenses to the extent provided in Section 1.3(f):
(a) repair, maintenance and replacement of all the exterior and
structural elements of the Building, including the exterior windows, the
Common Areas, and all general mechanical, plumbing and electrical systems
installed in the Building, but excluding those portions of any
mechanical, plumbing or electrical systems not constituting a part of the
Base Building Improvements attached as Exhibit B-1 hereto and that
exclusively serve the Premises, such as (by means of illustration only)
supplemental heating, ventilation and air-conditioning ("HVAC") systems,
kitchen plumbing and equipment, plumbing for private, supplemental
restrooms installed by Tenant in the Premises, and wall plugs and
switches within the Premises ("Exclusive Systems").
(b) heating, ventilating and air conditioning the Premises and
Common Areas during Building Business Hours, at temperatures and in
amounts as comply with the standards set
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forth in Exhibit B-1 hereto under normal business operations with
"Customary Office Equipment" (as used in this Lease, "Customary Office
Equipment" will include typewriters, calculators, dictation recorders,
desk top personal computers, small reproduction machines and similar
devices and equipment; but will not include data processing or heavy-duty
computer or reproduction equipment) subject to compliance with all
applicable voluntary and mandatory regulations and Laws. If Tenant
requires heating, ventilating or air conditioning for the Premises
outside Building Business Hours, Landlord will furnish the same for the
hours specified in a request from Tenant (which request will be made at
the time and in the manner reasonably designated by Landlord for such
requests from time to time), and for this service Tenant will pay
Landlord, within 10 days after the date of Landlord's invoice, the hourly
rate of $35.00 per hour per floor (which rate may be increased from time
to time to include actual cost increases to Landlord in providing such
service);
(c) cold water for small kitchens, hot and cold water for
restrooms and water for drinking fountains (excluding water for air
conditioning units for exclusive use by Tenant);
(d) electricity for normal office use in the Premises in
accordance with the standards set forth in Exhibit B-1 hereto;
(e) janitorial services to the Premises and Building Common
Areas substantially according to the standards described on Exhibit E,
exclusive of Holidays;
(f) passenger elevators for access to and from the floor(s) on
which the Premises are located in accordance with the standards set forth
in Exhibit B-1 hereto, during the hours from 8:00 a.m. to 6:00 p.m. on
Monday through Friday, excluding Holidays, and 8:00 a.m. to 1:00 p.m. on
Saturdays, excluding Holidays. At least one (1) passenger elevator in
each elevator bank will be operative at all hours. Landlord shall provide
"lock-out" capacity in all elevators serving the Premises, which capacity
may be by key, code or card operation, as determined by Landlord,
provided such system is reasonably compatible with Tenant's security
system. Landlord will program at least one (1) passenger elevator serving
the Premises to "park," when not answering an elevator call, at a floor
on which the Premises are located as designated by Tenant;
(g) toilet facilities, including necessary washroom supplies
sufficient for Tenant's normal use on each floor on which a portion of
the Premises are located;
(h) electric lighting for all Common Areas that require
electric light during the day or are open at night, including replacement
of tubes and ballasts in lighting fixtures;
(i) freight elevator service during all hours. Tenant shall
have the right to use the freight elevator and Building loading dock
after reasonable notice to Landlord, without charge therefor, subject to
other scheduling commitments theretofore made by Landlord with other
users of the freight elevator and loading dock;
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(j) replacement of tubes and ballasts in those Building
standard lighting fixtures installed in the Premises;
(k) landscaping on the Land in a condition reasonably
comparable with the landscaping maintained at other comparable first
class (Class A) office buildings in the Buckhead, Atlanta, Georgia market
area;
(l) window cleaning inside and out at least two (2) times per
year;
(m) a building directory on which Tenant shall be permitted to
list its name and the names of any subtenants, as well as Tenant's
officers, departments and subsidiaries. Tenant shall be able to utilize
not more than Tenant's Share of the listing spaces on the directory;
(n) security services for the Building, the Common Areas and
the Parking Facility consisting of the following:
(i) Subject to compliance with applicable Laws, Landlord shall
install, at Landlord's sole cost, a security system (the
"Security System") consisting of a "card-key" access system
comparable to other first class office buildings in the
Buckhead, Atlanta, Georgia market area. Such Security
System must permit the use of the fire stairwells for
Tenant's daily intra-office transit, provided that any
security devices required by Tenant to control such access
shall be installed at Tenant's cost. Tenant may coordinate
its security system with Landlord's security system.
(ii) Landlord will make reasonable efforts, at no cost to
Landlord, to coordinate with Tenant during the planning
stage of the Building concerning the integration of
Landlord's and Tenant's security systems.
(iii) Landlord shall provide at least two (2) uniformed guards,
one of whom shall be stationed in the main entrance lobby
and the other of whom shall cruise the Building and the
on-site Parking Facility during the times that such
services are customarily and generally furnished in
comparable office buildings in the Buckhead, Atlanta,
Georgia market area. One (1) such guard shall, if
available, escort Tenant's employees to/from vehicles in
the on-site Parking Facility of the Building upon Tenant's
request. Notwithstanding the foregoing, and subject to
Tenant's consent, which shall not be unreasonably withheld,
conditioned or delayed, Landlord may reduce or discontinue
such guard service in response to industry standards or
advances in technology.
Notwithstanding the foregoing, Tenant acknowledges that (x) Landlord and
its agents, employees and contractors cannot guaranty the security of the
Building, the Common Areas, or the Parking Facility and (y) Landlord
shall not be liable to Tenant for the willful misconduct, gross
negligence or negligence of other tenants
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or third parties including, without limitation, vandalism, theft,
mysterious disappearances and damage to property or person.
(o) access to its Premises and the Parking Facility on a
24-hour-per-day basis, although such access may be subject to the Rules
and Regulations and Landlord's reasonable security measures; and
(p) Landlord agrees that at all times during the term of this
Lease, as extended, the Premises shall have access to a condenser water
loop system, which Landlord shall maintain in proper working condition.
Subject to Landlord's reasonable requirements concerning capacity and use
of the system, such system shall be available for Tenant to connect its
supplemental heating, ventilating and air conditioning (HVAC) equipment
thereto (if any) for use during all hours of Tenant's occupancy of the
Premises. Tenant shall pay to Landlord a monthly usage charge (the "Usage
Charge") for condenser water services provided by Landlord to the
Premises at a cost per gallon of condenser water actually used by Tenant
at the Premises. The Usage Charge shall reimburse Landlord for its actual
cost of providing such service (exclusive of amortization or depreciation
costs as long as Tenant's supplemental HVAC system is not providing
cooling to a portion of the Office Tower Premises greater than ten
percent (10%) of Tenant's Office Tower Premises or to the Garden Space
Premises greater than ten percent (10%) of Tenant's Garden Space
Premises) and shall not charge Tenant for such service in excess of
customary charges to tenants in the Building or other office buildings in
the Buckhead, Atlanta, Georgia market area.
7.2 SEPARATE UTILITY SERVICES.
In addition to the standard services provided according to Section 7.1,
Landlord will furnish the following "Separate Utilities" to the extent
they are currently available within the Premises using existing Building
equipment: electricity for Tenant's use in the Premises in excess of that
set forth in Section 7.1 (d) above so long as such use shall not exceed a
total connected load of eight (8) watts per rentable square foot in the
Premises exclusive of Building standard lighting and HVAC. Tenant will
pay separately for the costs of all Separate Utilities consumed within
the Premises (and such costs will not be included in Expenses). Except
when Tenant pays the utility company directly, Tenant will pay Landlord
for the costs of Separate Utilities consumed within the Premises as
provided in this Section 7.2. Landlord will invoice Tenant from time to
time for such costs, which will be deemed Rent under this Lease, and
Tenant will pay the same within thirty (30) days after the date of
Landlord's invoice. For the costs of all Separate Utilities so payable by
Tenant to Landlord, Landlord will charge Tenant by metering at Landlord's
actual average cost as charged by the applicable utility service provider
to Landlord for the subject billing period. For purposes of this Section
7.2, from time to time during the Term Landlord may enter the Premises to
install, maintain, replace or read meters for Separate Utilities.
7.3 ADDITIONAL SERVICES.
(a) If Tenant requires electric current, water or any other
energy in excess of the amounts provided by Landlord according to
Sections 7.1 and 7.2, such excess electric, water or other energy
requirements will be supplied only with Landlord's consent, which
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consent will not be unreasonably withheld, conditioned or delayed. If
Landlord grants such consent, Tenant will pay all costs of meter service
and installation of facilities or professional services necessary to
measure and/or furnish the required excess capacity. Tenant will also pay
the entire cost of such additional electricity, water or other energy so
required at Landlord's actual average cost as charged to Landlord by the
applicable utility service provider for the subject billing period.
(b) If Tenant installs any machines, equipment or devices in
the Premises that do not constitute Customary Office Equipment and such
machines, equipment or devices cause the temperature in any part of the
Premises to exceed the temperature the Building's mechanical system would
be able to maintain in the Premises were it not for such machines,
equipment or devices, then Landlord reserves the right to, after giving
Tenant not less than ten (10) days advance notice, to install
supplementary air conditioning units in the Premises, unless Tenant
responds to such notice within ten (10) days after receipt thereof,
indicating Tenant's intention to rectify the condition necessitating such
action by Landlord and thereafter Tenant diligently proceeds to rectify
such condition in a manner reasonably satisfactory to Landlord. Tenant
will pay Landlord all costs of installing, operating and maintaining such
supplementary units and throughout the Term will provide preventative
maintenance on such supplementary units through continuing contracts with
a reputable company and provide to Landlord evidence of said contracts
and said maintenance.
(c) If Tenant requires any janitorial or cleaning services in
excess of the amounts provided by Landlord according to section 7.1 (such
as cleaning services beyond normal office janitorial services for areas
such as kitchens, computer rooms, medical or dental examination rooms or
other special use areas), Landlord will provide such excess services to
Tenant within a reasonable period after Tenant's request made to
Landlord's Building manager ("Property Manager"), provided that such
excess services are available from Landlord's regular janitorial or
cleaning contractor. Tenant will pay the cost of such excess services at
prevailing rates actually charged to Landlord for Landlord's own account.
Landlord will also provide, within a reasonable period after Tenant's
request made to the Property Manager, at Tenant's cost and to the extent
available to Landlord, replacement of bulbs, tubes or ballasts in any
non-Building standard lighting fixtures in the Premises.
(d) Tenant will pay as Rent, within thirty (30) days after the
date of Landlord's invoice, all costs which may become payable by Tenant
to Landlord under this Section 7.3.
7.4 INTERRUPTION OF SERVICES.
If any of the services provided for in this Section 7 are interrupted or
stopped, Landlord will use due diligence to resume the service; provided,
however, no irregularity or stoppage of any of these services not
attributable to the negligence or willful misconduct of Landlord or its
agents, employees or contractors, or to any breach of this Lease by
Landlord, will create any liability for Landlord (including, without
limitation, any liability for damages to Tenant's personal property
caused by any such irregularity or stoppage), constitute an actual or
constructive eviction or, except as expressly provided below, cause any
abatement of the Rent payable under this Lease or in any manner or for
any purpose
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relieve Tenant from any of its obligations under this Lease. If, due to
reasons other than Force Majeure or Tenant's negligence, any of the
services required to be provided by Landlord under this Section 7 should
become unavailable and should remain unavailable for a period in excess
of 60 hours after notice of such unavailability from Tenant to Landlord,
and if such unavailability should render all or any portion of the
Premises either substantially unusable or materially substandard for the
normal conduct of Tenant's business ("Untenantable"), then commencing
upon the expiration of such 60-hour period, Tenant's Rent will equitably
abate in proportion to the portion of the Premises so rendered
Untenantable for so long as such services remain unavailable. Without
limiting those reasons for an irregularity or stoppage of services that
may be beyond Landlord's control, any such irregularity or stoppage that
does not exceed 90 hours and that is required in order to comply with any
Laws will be deemed caused by Force Majeure.
8. REPAIRS.
8.1 REPAIRS WITHIN THE PREMISES.
Subject to the terms of Sections 6, 7.1(a), 12 and 14, and except to the
extent Landlord is required or elects to perform or pay for certain
maintenance or repairs according to those sections, Tenant will, at
Tenant's own expense: (a) at all times during the Term, maintain the
Premises, all fixtures and equipment in the Premises and those portions
of any plumbing or electrical systems that exclusively serve the Premises
(excluding the Building core restrooms, mechanical rooms, electrical
closets, common area telephone closets, janitorial closets and other
service areas) in good order and repair and in a condition that complies
with all applicable Laws; and (b) promptly and adequately repair all
damage to the Premises and replace or repair all of such fixtures,
equipment and portions of the plumbing or electrical systems exclusively
serving the Premises (other than those described in clause (a) above)
that are damaged or broken, all under the supervision and subject to the
prior reasonable approval of Landlord. All work done by Tenant or its
contractors (which contractors will be subject to Landlord's reasonable
approval, which shall not be unreasonably withheld, conditioned or
delayed) will be done in a first-class workmanlike manner using only
grades of materials at least equal in quality to Building standard
materials and will comply with all insurance requirements and all
applicable Laws.
8.2 FAILURE TO MAINTAIN PREMISES.
If Tenant fails to perform any of its obligations under Section 8.1, and
Tenant fails to cure such nonperformance within the cure period set forth
in Section 20.1(b) after notice from Landlord, then Landlord may perform
such obligations and Tenant will pay as Rent to Landlord the reasonable
cost of such performance actually incurred, including an amount
sufficient to reimburse Landlord for overhead and supervision, within
thirty (30) days after the date of Landlord's invoice. For purpose of
performing such obligations, or to inspect the Premises, Landlord may
enter the Premises upon not less than one (1) day's prior notice to
Tenant (except in cases of actual or suspected emergency, in which case
oral notice will suffice or no prior notice will be required if any kind
of notice is not possible under the circumstances) without liability to
Tenant for any loss or damage incurred as a result of
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such entry, provided that Landlord will take reasonable steps in
connection with such entry to minimize any disruption to Tenant's
business or its use of the Premises.
8.3 NOTICE OF DAMAGE.
Tenant will notify Landlord promptly after Tenant learns of (a) any fire
or other casualty in the Premises; or (b) any damage to or defect in the
Premises, including the fixtures and equipment in the Premises, the
repair of which might be Landlord's responsibility under this Lease.
9. ALTERATIONS.
9.1 ALTERATIONS BY TENANT.
Tenant may from time to time at its own expense make changes, additions
and improvements to the Premises (individually or collectively referred
to as "Alterations") to better adapt the same to its business, provided
that any such Alterations (a) will comply with all applicable Laws; (b)
will be made only with the prior written consent of Landlord, which
consent will not be unreasonably withheld, conditioned or delayed; (c)
will equal or exceed Building standard; (d) will be carried out only by
persons selected by Tenant and approved in writing by Landlord (which
approval will not be unreasonably withheld, conditioned or delayed); (e)
do not exceed or materially affect the capacity, maintenance, operating
cost or integrity of the Building's structure or any of its heating,
ventilating, air conditioning, plumbing, mechanical, electrical,
communications or other systems; and (f) does not alter the exterior of
the Building in any way. Notwithstanding the foregoing, Tenant shall have
the right to make interior, cosmetic alterations to the Premises and
other minor, nonstructural, interior alterations having a cost of less
than $25,000 with respect to such alteration or group of related
alterations ("Minor Alterations") for its own benefit, and not for the
benefit of Landlord, upon notice to Landlord but without first obtaining
Landlord's consent provided such alterations do not modify in any respect
or otherwise materially affect the Building systems and are otherwise
performed in accordance with the terms of this Lease. Tenant will
maintain, or will cause the persons performing any such work to maintain,
worker's compensation insurance and public liability and property damage
insurance (with Landlord named as an additional insured), in amounts,
with companies and in a form reasonably satisfactory to Landlord, which
insurance will remain in effect during the entire period in which the
work will be carried out. If requested by Landlord, Tenant will deliver
to Landlord proof of all such insurance. Tenant will promptly pay, when
due, the cost of all such work and, upon completion, Tenant will deliver
to Landlord, to the extent not previously received by Landlord, evidence
of payment, contractors' affidavits and full and final waivers of all
liens for labor, services or materials. Except as provided in the
immediately following sentence, Tenant will pay to Landlord the
Construction Administration Fee on all Alterations. Notwithstanding the
foregoing, the Construction Administration Fee shall not apply with
respect to the original Tenant Leasehold Improvements to the Premises or
to any Minor Alterations unless such Minor Alterations require a building
permit. Tenant shall pay to Landlord the cost of any modifications to the
Building outside the Premises that are required to be made in order to
make the Alterations to the Premises, provided such cost is disclosed to
Tenant at the time of Landlord's approval of such Alterations.
Notwithstanding the foregoing, Landlord shall
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reserve the right to adjust the cost disclosed to Tenant in the event
such cost is increased as a result of a concealed condition or
unanticipated event, the presence or likelihood of which Landlord could
not have reasonably discovered or anticipated at the time of Tenant's
request. Tenant, at its expense, will have promptly prepared and
submitted to Landlord reproducible as-built CAD plans of any such change,
addition or improvement requiring a building permit upon its completion.
All changes, additions and improvements to the Premises, whether
temporary or permanent in character, made or paid for by Landlord or
Tenant will, without compensation to Tenant, become Landlord's property
upon installation. If at the time Landlord consents to their
installation, Landlord requests or approves the removal by Tenant of any
such Alterations upon termination of this Lease, Tenant will remove the
same upon termination of this Lease as provided in Section 3.4. Landlord
agrees that it will not require such removal unless the Alteration shall
make the cost of renovating the Premises for office use following the
expiration or termination of this Lease materially more expensive than if
such Alteration had not been made. By way of illustration and not
limitation, the installation of raised flooring for a computer room,
interconnecting stairwell, additional toilet rooms, non-Building Standard
ceilings or healthclub would constitute an Alteration that would make the
cost of renovating the Premises following expiration or termination of
this Lease materially more expensive, but partitioning, special entry
lobby features such as a plaster or sheetrock ceiling (provided ceiling
height is maintained at nine (9) feet), special lighting or special
partition finishes or surfaces (such as glass block) would not. All other
Alterations will remain Landlord's property upon termination of this
Lease and will be relinquished to Landlord in good condition, ordinary
wear and tear excepted.
9.2 ALTERATIONS AND ENTRY BY LANDLORD.
Landlord may from time to time make repairs, changes, additions and
improvements to the Building, Common Areas and those Building systems
necessary to provide the services described in Section 7, and for such
purposes Landlord may enter the Premises upon not less than 3 days' prior
notice to Tenant (except in cases of actual or suspected emergency, in
which case no prior notice will be required) without liability to Tenant
for any loss or damage incurred as a result of such entry, provided that
in doing so Landlord will not disturb or interfere with Tenant's use of
the Premises and operation of its business any more than is reasonably
necessary in the circumstances and will repair any damage to the Premises
caused by such entry. Landlord shall use reasonable efforts to avoid
interfering with Tenant's business operations, including, if necessary,
performing any such work during times other than Tenant's normal business
hours. No permanent change, addition or improvement made by Landlord will
materially impair access to the Premises or the use thereof by Tenant. In
addition, Landlord and its agents, employees and contractors, after
reasonable advance notice, shall have the right to enter the Premises
during Tenant's normal business hours, without undue interference with
the conduct of Tenant's business therein, to inspect and examine the
Premises and to exhibit the Premises to prospective purchasers or tenants
(but, as to prospective tenants, only during the last twelve months of
the Term).
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10. LIENS.
Subject to Landlord's payment to Tenant of the Allowance payable pursuant
to Exhibit B, Tenant agrees to pay before delinquency all costs for work,
services or materials furnished to Tenant (other than by Landlord) for
the Premises, the nonpayment of which could result in any lien against
the Land or Building. As long as any such Allowance has been paid
pursuant to Exhibit B, Tenant will keep title to the Land and Building
free and clear of any such lien. Tenant will immediately notify Landlord
of the filing of any such lien or any pending claims or proceedings
relating to any such lien of which Tenant has knowledge, and as long as
any such Allowance has been paid in accordance with Exhibit B, will
indemnify and hold Landlord harmless from and against all loss, damages
and expenses (including reasonable attorneys' fees) suffered or incurred
by Landlord as a result of such lien, claims and proceedings. In case any
such lien attaches, Tenant agrees to cause it to be immediately released
and removed of record (failing which Landlord may do so at Tenant's sole
expense), unless Tenant has a good faith dispute as to such lien in which
case Tenant may deposit a lien transfer bond (if applicable) drawn on a
bondsman acceptable to Landlord or deposit with Landlord a bond or other
security in an amount reasonably acceptable to Landlord which may be used
by Landlord to release such lien. Notwithstanding anything herein to the
contrary, the foregoing condition precedent of Landlord's payment of the
Allowance shall only apply with respect to liens placed in connection
with the initial Improvements for which Landlord is providing the
Allowance and shall not apply with respect to any other work, services or
materials supplied to Tenant.
11. INSURANCE.
11.1 LANDLORD'S INSURANCE.
During the Term, Landlord will provide and keep in force the following
insurance:
(a) commercial general liability insurance relating to
Landlord's operation of the Building, for personal and bodily injury and
death, and damage to others' property; and
(b) all risk or fire insurance (including standard extended
coverage endorsement perils, leakage from fire protective devices and
other water damage) relating to the Land and Building (but excluding
Tenant's fixtures, furnishings, equipment, personal property, documents,
files, inventory, stock-in-trade and work products, but including all
leasehold improvements in the Premises); and
(c) loss of rental income insurance or loss of insurable gross
profits commonly insured against by prudent landlords; and
(d) such other insurance (including boiler and machinery
insurance) as Landlord reasonably elects to obtain or any Building
mortgagee requires.
Insurance effected by Landlord under this Section 11.1 will be in amounts
which Landlord from time to time reasonably determines sufficient or any
Building mortgagee requires; will be subject to such deductibles and
exclusions as Landlord reasonably determines; will,
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in the case of insurance under Sections 11.1 (b), (c) and (d), permit the
release of Tenant from certain liability under Section 13.1 (as long as
such permission may be obtained without material additional cost and
without rendering void the protection afforded by the policy); and will
otherwise be on such terms and conditions as Landlord from time to time
reasonably determines sufficient. Tenant acknowledges that Landlord's
loss of rental income insurance policy provides that payments by the
insurer may be limited to a period of one year following the date of any
damage or destruction and that no insurance proceeds will be payable in
the case of damage or destruction caused by an occurrence not included in
the policies described in Sections 11.1(b), (c) and (d).
11.2 TENANT'S INSURANCE.
During the term, Tenant will provide and keep in force the following
insurance:
(a) commercial general liability insurance relating to Tenant's
business (carried on, in or from the Premises) and Tenant's use and
occupancy, for personal and bodily injury and death, and damage to
others' property, with limits of not less than the Liability Insurance
Amount for any one accident or occurrence; and
(b) all risk or fire insurance (including standard extended
endorsement perils, leakage from fire protective devices and other water
damage) relating to Tenant's fixtures, furnishings, equipment, documents,
files, work products, inventory and stock-in-trade on a full replacement
cost basis in amounts sufficient to prevent Tenant from becoming a
co-insurer and subject only to such deductibles and exclusions as Tenant
may reasonably determine; and
(c) if any boiler or machinery is operated in the Premises,
boiler and machinery insurance.
Landlord and the holder of any Encumbrance of which Landlord has given
Tenant notice will be named as an additional insureds in the policy
described in Section 11.2(a), which will include cross liability and
severability of interests clauses and will be on an "occurrence" (and not
a "claims made") form. Landlord and the holder of any Encumbrance will be
named as a loss payee, as its interest may appear, in the policies
described in Section 11.2(c), and such policies will permit the release
of Landlord and the holder of any Encumbrance from certain liability
under Section 13.2 (as long as such permission may be obtained without
material additional cost and without rendering void the protection
afforded by the policy). Tenant will file with Landlord, on or before the
Commencement Date and at least 10 days before the expiration date of
expiring policies, such copies of either current policies, an insurance
binder, Evidence of Insurance (in form Accord 27), a binding certificate
or other proofs, as may be reasonably required to establish Tenant's
insurance coverage in effect from time to time and payment of premiums.
If Tenant fails to insure or pay premiums, or to file satisfactory proof
as required, Landlord may, upon a minimum of fifteen (15) days notice
(which notice expressly recites Landlord's cure rights in this sentence),
obtain such insurance and recover from Tenant on demand any premiums
paid.
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12. DAMAGE OR DESTRUCTION.
12.1 TERMINATION OPTIONS.
If the Premises or the Building is damaged by fire or other casualty
Landlord will, promptly after learning of such damage, notify Tenant in
writing within thirty (30) days after the date of the damage of the time
necessary to repair or restore such damage, as estimated by Landlord's
architect, engineer or contractor. If such estimate states that repair or
restoration of all of such damage that was caused to the Premises or to
any other portion of the Building necessary for Tenant's occupancy in
accordance with similar quality and standards as the specifications
attached hereto as Exhibits B and B-1 and the requirements of this Lease
cannot be completed within one hundred eighty (180) days from the date of
such damage (or within sixty (60) days from the date of such damage if
such damage occurred within the last twelve (12) months of the Term),
then Tenant will have the option to terminate this Lease. If such
estimate states that repair or restoration of all such damage that was
caused to the Building cannot be completed within one hundred eighty
(180) days from the date of such damage, or if such damage occurred
within the last twelve (12) months of the Term and such estimate states
that repair or restoration of all such damage that was caused to the
Premises or to any other portion of the Building necessary for Tenant's
occupancy cannot be completed within sixty (60) days from the date of
such damage, or if such damage is not insured against by the insurance
policies required to be maintained by Landlord according to Section 11.1,
then Landlord will have the option to terminate this Lease. Any option to
terminate granted above must be exercised by written notice to the other
party given within thirty (30) days after Landlord delivers to Tenant the
notice of estimated repair time. If either party exercises its option to
terminate this Lease, the Term will expire and this Lease will terminate
ten (10) days after notice of termination is delivered; provided,
however, that Rent for the period commencing on the date of such damage
until the date this Lease terminates will fully abate with respect to
such portions of the Premises that are Untentantable as a result of such
damage. Landlord will be entitled to all proceeds of the insurance policy
applicable to any damaged leasehold improvements in the Premises.
12.2 REPAIR OBLIGATIONS.
If the Premises or the Building are damaged by fire or other casualty and
neither party terminates this Lease according to Section 12.1, then
Landlord will repair and restore all of such damage with reasonable
promptness, subject to delays for insurance adjustments and delays caused
by matters beyond Landlord's control. Landlord will have no liability to
Tenant and Tenant will not be entitled to terminate this Lease if such
repairs and restoration are not in fact completed within the estimated
time period, provided that Landlord's estimate was made in good faith and
Landlord promptly commences and diligently pursues such repairs and
restoration to completion, and in any case such repairs are completed
within sixty (60) days after that date stated in good faith as the
estimated completion date pursuant to Section 12.1 above, as such date
may be extended for insurance adjustments and delays caused by matters
beyond Landlord's control. If not completed by such date, Tenant may
terminate the lease by written notice to Landlord delivered no later than
the sixty fifth (65th) day after that date stated as the estimated
completion date pursuant to Section 12.1 above. In no event will Landlord
be obligated
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to repair, restore or replace any of the property required to be insured
by Tenant according to Section 11.2. In no event shall Rent resume with
respect to the Premises prior to the date stated as the estimated
completion date pursuant to Section 12.1 above, as such date may be
extended for insurance adjustments and delays caused by Force Majeure.
12.3 RENT ABATEMENT.
If any fire or casualty damage renders the Premises Untenantable and if
this Lease is not terminated according to Section 12.1, then Rent will
abate beginning on the date of such damage. Subject to the last sentence
of Section 12.2, such abatement will end on the date Landlord has
substantially completed the repairs and restoration Landlord is required
to perform according to Section 12.2 and a certificate of occupancy has
been issued for the Premises as fully restored. Such abatement will be in
an amount bearing the same ratio to the total amount of Rent for such
period as the Untenantable portion of the Premises bears to the entire
Premises. Any portion of the Premises not damaged but unusable by Tenant
for its business operations, provided it would be unreasonable to expect
Tenant to perform its business operations in that portion of the
undamaged Premises as a result of such damage, shall be deemed
Untenantable. In no event other than Landlord's gross negligence or
willful misconduct will Landlord be liable for any inconvenience or
annoyance to Tenant or injury to the business of Tenant resulting in any
way from damage caused by fire or other casualty or the repair of such
damage, provided however that, to the extent Tenant remains in possession
of a portion of the Premises, Landlord will take all reasonable steps to
minimize the disruption to Tenant's business and use of such portion of
the Premises during the period of repair.
13. WAIVERS AND INDEMNITIES.
13.1 LANDLORD'S WAIVERS.
As used in this Section 13, a party's "Affiliates" includes that party's
and its Affiliates' partners, ventures, directors, officers,
shareholders, agents, servants and employees. Tenant and its Affiliates
will not be liable or in any way responsible to Landlord for, and
Landlord waives all claims against Tenant and its Affiliates for, any
loss, injury or damage that is insured or required to be insured by
Landlord under Sections 11.1(b), (c) or (d), regardless of whether or not
the proceeds from any such insurance are adequate to compensate Landlord
fully for any such loss, injury or damage. Landlord's waivers under this
Section 13.1 will survive the expiration or early termination of the
Term.
13.2 TENANT'S WAIVERS.
Except to the extent caused by the willful or negligent act or omission
or breach of this Lease by Landlord or Landlord's agents, employees or
contractors or anyone for whom Landlord is legally responsible, Landlord,
its Affiliates and the holder of any Encumbrance will not be liable or in
any way responsible for, and Tenant waives all claims against Landlord,
its Affiliates and the holder of any Encumbrance for any loss, injury or
damage suffered by Tenant relating to (a) loss or theft of, or damage to,
property of Tenant; (b) injury or damage to persons or property resulting
from fire, explosion, falling plaster, escaping steam or gas,
electricity, water, rain or snow, or leaks from any part of the Building
or from any pipes, appliances or plumbing, or from dampness; or (c)
damage
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caused by other tenants, occupants or persons in the Premises or other
premises in the Building, or caused by the public or by construction of
any private or public work. Landlord, its Affiliates and the holder of
any Encumbrance will not be liable or in any way responsible to Tenant
for, and Tenant waives all claims against Landlord, its Affiliates and
the holder of any Encumbrance for, any loss, injury or damage that is
insured or required to be insured by Tenant under Sections 11.2(b) or
(c), regardless of whether or not the proceeds of any such insurance are
adequate to compensate Tenant fully for any such loss, injury or damage.
Tenant's waivers under this Section 13.2 will survive the expiration or
early termination of the Term.
13.3 LANDLORD'S INDEMNITY.
Subject to Sections 7.4 and 13.2 and except to the extent caused by the
willful or negligent act or omission or breach of this Lease by Tenant,
its agents, employees or contractors, or anyone for whom Tenant is
legally responsible, Landlord will indemnify and hold Tenant harmless
from and against any and all liability, loss, claims, demand, damages or
expense (including reasonable attorneys' fees) due to or arising out of
any willful or negligent act or omission or breach of this Lease by
Landlord or anyone for whom Landlord is legally responsible. Landlord's
obligations under this Section 13.3 will survive the expiration or early
termination of the Term.
13.4 TENANT'S INDEMNITY.
Subject to Section 13.1 and except to the extent caused by the willful or
negligent act or omission or breach of this Lease by Landlord, its
agents, employees or contractors, or anyone for whom Landlord is legally
responsible, Tenant will indemnify and hold Landlord and the holder of
any Encumbrance harmless from and against any and all liability, loss,
claims, demands, damages or expenses (including reasonable attorneys'
fees) due to or arising out of any willful or negligent act or omission
of or breach of this Lease by Tenant or anyone for whom Tenant is legally
responsible. Tenant's obligations under this Section 13.4 will survive
the expiration or early termination of the Term.
14. CONDEMNATION.
14.1 FULL TAKING.
If all or substantially all of the Building, the Parking Facility or
either the Office Tower Premises or the Garden Space Premises is
permanently taken for any public or quasi-public use under any applicable
Laws or by right of eminent domain, or are sold to the condemning
authority in lieu of condemnation, then this Lease will terminate as of
the date the earlier of when the condemning authority takes physical
possession of or title to the Building or Premises. For purposes of this
Lease, a taking shall be deemed permanent if it is for a period in excess
of three hundred sixty-five (365) days.
14.2 PARTIAL TAKING.
(a) Landlord's Termination of Lease. If less than substantially
all of the Building, the Parking Facility or either the Office Tower
Premises or the Garden Space Premises is thus taken or sold, and if after
such partial taking, in Landlord's reasonable judgment, alteration or
reconstruction cannot be completed within one hundred eighty (180) days
after the date
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of dispossession, then Landlord (whether or not the Premises are
affected) may terminate this Lease by giving written notice to Tenant
within 60 days after the taking; provided, however, that Landlord may
terminate this Lease only if Landlord so terminates all other leases of
space that are similarly affected by such partial taking in the Building.
(b) Tenant's Termination. If over twenty percent (20%) of the
Premises is thus taken or sold and Landlord is unable to provide Tenant
with comparable replacement premises in the Building, Tenant may
terminate this Lease. Such termination by Tenant must be exercised by
written notice to Landlord given not later than sixty (60) days after
Tenant is notified of the taking of the Premises.
(c) Effective Date of Termination. Termination by Landlord or
Tenant will be effective as of the date when physical possession of the
applicable portion of the Building or Premises is taken by condemning
authority.
(d) Election to Continue Lease. If neither Landlord nor Tenant
elects to terminate this Lease upon a partial taking of a portion of the
Premises, the Rent payable under this Lease will be equitably reduced to
reflect the loss of space or facilities so taken or sold. If this Lease
is not terminated upon a partial taking of the Building or Premises,
Landlord will, at Landlord's sole expense, promptly restore and
reconstruct the Building and Premises to substantially their former
condition to the extent the same is feasible. However, Landlord will not
be required to spend for such restoration or reconstruction an amount in
excess of the net amount received by Landlord as compensation or damages
for the part of the Building or Premises so taken.
14.3 AWARDS.
As between the parties to this Lease, Landlord will be entitled to
receive, and Tenant assigns to Landlord, all of the compensation awarded
upon a permanent taking of any part or all of the Building or Premises,
including any award for the value of the unexpired Term; except, however,
that Tenant shall be entitled to such portion of the award as is
attributable to any damages resulting from the taking of Tenant's trade
fixtures or personal property, or for moving expenses, business
relocation expenses or damages to Tenant's business incurred as a result
of such condemnation.
14.4 TEMPORARY TAKING.
If during the Lease Term the use or occupancy of any part of the Building
or Premises shall be taken or appropriated temporarily (that is, for a
period not in excess of 180 days) for any public or quasi-public use
under any Law, this Lease shall be and remain unaffected by such taking
or appropriation and Tenant shall continue to pay all Rent payable
hereunder by Tenant during the Lease Term at an amount equitably reduced
to reflect the diminution in value or utility of the Premises during such
period of temporary taking. In the event of any such temporary
expropriation or taking, Landlord shall be entitled to receive any award
for such taking as long as Rent is so equitably reduced, except that
Tenant shall be entitled to any portion of such award attributable to any
moving costs incurred by Tenant.
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15. ASSIGNMENT AND SUBLETTING.
15.1 LIMITATION.
Without Landlord's prior written consent, except as otherwise provided in
Section 15.7, Tenant will not assign all or any of its interest under
this Lease, sublet all or any part of the Premises or permit the Premises
to be used by any parties other than Tenant and its employees, licensees,
concessionaires, customers, vendors and invitees as long as such parties
are providing services to Tenant in the ordinary course of Tenant's
business operations.
15.2 NOTICE OF PROPOSED TRANSFER; LANDLORD'S OPTIONS.
If Tenant desires to enter into any assignment of this Lease or a
sublease of all or any part of the Premises, Tenant will first give
Landlord written notice of the proposed assignment or sublease, which
notice will contain the name and address of the proposed transferee, the
proposed use of the Premises, statements reflecting the proposed
transferee's current financial condition and income and expenses for the
past 2 years, and the principal terms of the proposed assignment or
sublease. Except in the case of any transfer permitted under Section
15.7, and except with respect to any transfer under any other
circumstance of less than the equivalent of at least (two) 2 full floors
of the Building, Landlord will have the option, which must be exercised,
if at all, by notice given to Tenant within 10 days after Landlord's
receipt of Tenant's notice of the proposed transfer, either (i) if
Tenant's notice relates to a subletting, to sublet from Tenant such space
as is described in the notice for such portion of the Term as is
described in the notice, upon the same terms and conditions and for the
same Rent (apportioned, as appropriate, to the amount of such space) as
provided in this Lease; or (ii) if such notice relates to an assignment,
to become Tenant's assignee.
15.3 CONSENT NOT TO BE UNREASONABLY WITHHELD.
If Landlord does not have or does not exercise an applicable option under
Section 15.2, then Landlord will not unreasonably withhold, delay or
condition its consent to the proposed assignment or subletting if each of
the following conditions is satisfied:
(a) the proposed transferee will make use of the Premises which
(i) is lawful, and (ii) is consistent with the permitted use of the
Premises under this Lease; and
(b) in the event Tenant is requesting an assignment and release
from its Lease obligations and the proposed transferee does not meet the
minimum net worth requirement stipulated in Section 15.9 hereto, the
proposed transferee, in Landlord's commercially reasonable opinion, has
sufficient financial capacity and business experience to perform Tenant's
obligations under this Lease; and
(c) the proposed transferee will make use of the Premises which
in Landlord's reasonable opinion (i) does not conflict with any exclusive
rights or covenants not to compete in favor of any other tenant or
proposed tenant of the Building existing on the Date, and (ii) will not,
in Landlord's reasonable opinion, increase the likelihood of damage or
destruction to the Building; and
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(d) the proposed transferee is not a party with whom Landlord
has negotiated in good faith for the lease of space in the Building in
the opinion of both Landlord and said proposed transferee within ninety
(90) days prior to Tenant's negotiation with such proposed transferee;
and
(e) the proposed transferee does not have a poor business
reputation or reputation as being an undesirable tenant in the general
business community; and
(f) at the time of the proposed transfer no "Default" (as
defined in Section 20.1) exists under this Lease.
15.4 FORM OF TRANSFER.
If Landlord consents or is required by this Lease to consent to a
proposed assignment or sublease, Landlord's consent will not be effective
unless and until Tenant delivers to Landlord an original duly executed
assignment or sublease, as the case may be, in a form reasonably
acceptable to Landlord, that provides, in the case of a sublease, that
the subtenant will comply with all applicable terms and conditions of
this Lease, and, in the case of an assignment, an assumption by the
assignee of all of the terms, covenants and conditions which this Lease
requires Tenant to perform, but only with respect to such performance as
first required after the effective date of such assignment.
15.5 PAYMENTS TO LANDLORD.
If Landlord does not have or does not exercise an applicable option under
Section 15.2 and Tenant effects an assignment or sublease, then Landlord
will be entitled to receive and collect, either from Tenant or directly
from the transferee, 50% of the amount by which the consideration
required to be paid by the transferee for the use and enjoyment of
Tenant's rights under this Lease exceeds the sum of (i) the Rent payable
by Tenant to Landlord allocable to the transferred space, plus (ii) the
amortized portion of brokerage commission, renovation costs, marketing
costs and reasonable legal fees, if any, actually incurred by Tenant in
consummating such assignment or sublease, and the amortized Rent payable
with respect to the assigned or sublet space during the period such space
is renovated for the new occupant thereof, which period shall be deemed
thirty (30) days for a space that is one (1) full floor or less, sixty
(60) days for space that is more than one (1) floor but less than or
equal to two (2) full floors and ninety (90) days for space that is more
than two (2) full floors (such amortization to be on a straight-line
basis over the remaining portion of the Lease Term after the rent
commencement date under such assignment or sublease). Such percentage of
such amount will be payable to Landlord at the time(s) Tenant receives
the same from its transferee (whether in monthly installments, in a lump
sum, or otherwise).
15.6 CHANGE OF OWNERSHIP.
(a) Any transfer or series of transfers resulting in a change in
"control" (as defined in subparagraph (b) below) of Tenant (whether
Tenant is a corporation, partnership, trust or other entity), whether
voluntarily, by operation of law, or otherwise, shall be deemed an
"assignment" of this Lease requiring Landlord's prior written consent,
except as provided
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in Section 15.7. The transfer of any outstanding capital stock of a
corporation whose stock is publicly-traded will not, however, be deemed a
change in "control" under this Section 15.6.
(b) The term "control," as used in subparagraph (a), means, with
respect to a corporation, the right to the exercise, directly or
indirectly, of more than 50% of the voting rights attributable to the
shares of the controlled corporation, and, with respect to any person or
entity that is not a corporation, the possession, directly or indirectly,
of the power to direct or cause the direction of the management or
policies of the controlled person or entity.
15.7 PERMITTED TRANSFERS.
Notwithstanding Sections 15.1 and 15.6 hereto, Tenant may, upon notice to
Landlord, but without obtaining Landlord's consent and without Landlord
having any rights under Section 15.2 with respect thereto, assign this
Lease or sublease all or any part of the Premises to an Affiliate of
Tenant or any Person into or with which Tenant may be merged or
consolidated or which acquires all or substantially all of the assets of
Tenant, as long as said transferee has a net worth equal to or greater
than Twenty Million and No/100 Dollars ($20,000,000.00), determined in
accordance with generally accepted accounting principles, consistently
applied.
15.8 EFFECT OF TRANSFERS.
Except as expressly provided in Section 15.9 below, no subletting or
assignment will release Tenant from any of its obligations under this
Lease unless Landlord agrees to the contrary in writing. Acceptance of
Rent by Landlord from any person other than Tenant will not be deemed a
waiver by Landlord of any provision of this Section 15. Consent to one
assignment or subletting will not be deemed a consent to any subsequent
assignment or subletting. In the event of any default by any assignee or
subtenant or any successor of Tenant in the performance of any Lease
obligation, Landlord may proceed directly against Tenant (unless Tenant
has been released from its liability hereunder pursuant to Section 15.9)
without exhausting remedies against such assignee, subtenant or
successor. The voluntary or other surrender of this Lease by Tenant or
the cancellation of this Lease by mutual agreement of Tenant and Landlord
will not work a merger and will, at Landlord's option (subject to Section
15.10 below), terminate all or any subleases or operate as an assignment
to Landlord of all or any subleases; such option will be exercised by
notice to Tenant and all known subtenants in the Premises. If Landlord
shall choose to take an assignment of a sublease then the subtenant shall
be bound to Landlord for the balance of the Term thereof and shall attorn
directly to Landlord under all of the executory terms of the sublease
except that Landlord shall not (a) be liable for any previous act,
omission or negligence of Tenant, (b) be subject to any counterclaim,
defense or offset not expressly provided for in the sublease and accruing
against Tenant, (c) be bound by any previous modification or amendment of
the sublease made without Landlord's consent or by any previous
prepayment of more than one month's Rent, or (d) be obligated to perform
any repairs or other work beyond Landlord's obligation under this Lease.
Each subtenant shall execute and deliver such instruments as Landlord may
reasonably request to evidence said attornment.
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15.9 RELEASE OF TRANSFEROR.
Notwithstanding any other provision of this Lease to the contrary, if
Tenant assigns this Lease and Tenant's assignee (or a guarantor thereof)
has an audited net worth equal to or greater than One Hundred Million
Dollars ($100,000,000), determined in accordance with generally accepted
accounting principles, consistently applied, as of the date such
assignee's most recent balance sheet and as of the date of another of
such assignee's balance sheets dated at least five (5) years prior to
such most recent balance sheet (the foregoing being herein referred to as
the "Minimum Net Worth Test"), Tenant shall be released from any further
liability under this Lease from and after the effective date of such
assignment. If such assignee does not meet the Minimum Net Worth Test as
of the effective date of such assignment, but such assignee meets the
Minimum Net Worth Test thereafter, Tenant shall be released from any
further liability hereunder from and after the date that such assignee
has met the Minimum Net Worth Test.
15.10 NONDISTURBANCE OF SUBLESSEE.
Upon written request of Tenant, Landlord shall execute and deliver to a
sublessee leasing at least the equivalent of a full floor of the Building
under an Approved Sublease (as defined below) an agreement (a
"Recognition Agreement") to the effect that, notwithstanding any
termination of this Lease by Landlord on account of any default by
Tenant, such sublease and the rights of the sublessee thereunder shall
not be disturbed by Landlord but shall continue in full force and effect
so long as such sublessee shall continue to observe and perform all of
its obligations under such sublease. A sublease shall be considered an
"Approved Sublease" if it either (i) obligates the sublessee to pay Rent
in an amount not less than a proportionate share of the Rent payable
under this Lease with respect to the space that is comparable to the
sublet space (i.e., Office Tower space or Garden Space space) (which
proportionate share shall be based upon the rentable area of the Premises
sublet by such sublessee as compared to the total rentable area of the
comparable Premises), or (ii) obligates the sublessee to agree with
Landlord in the Recognition Agreement that if the sublessee's monetary
obligations to Tenant are less than that described in subsection (i)
above, then upon termination of this Lease sublessee's monetary
obligations to Landlord shall equal (or, in the case of a partial
sublease, equal a proportionate share of) Tenant's Rent obligations under
this Lease.
16. PERSONAL PROPERTY.
16.1 INSTALLATION AND REMOVAL.
Tenant may install in the Premises its personal property (including
Tenant's usual trade fixtures) in a proper manner, provided that no such
installation will interfere with or damage the mechanical, plumbing or
electrical systems or the structure of the Building, and provided further
that if such installation would require any change, addition or
improvement to the Premises, such installation will be subject to Section
9.1. If no Default then exists, any such personal property installed in
the Premises by Tenant (a) may be
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removed from the Premises from time to time in the ordinary course of
Tenant's business or in the course of making any changes, additions or
improvements to the Premises permitted under Section 9.1, and (b) will be
removed by Tenant at the end of the Term to the extent required under
Section 3.4. Tenant will promptly repair at its expense any damage to the
Building resulting from such installation or removal.
16.2 RESPONSIBILITY.
Tenant will be solely responsible for all costs and expenses related to
personal property used or stored in the Premises. Tenant will pay any
taxes or other governmental impositions levied upon or assessed against
such personal property, or upon Tenant for the ownership or use of such
personal property, on or before the due date for payment. Such personal
property taxes or impositions are not included in Taxes.
17. ESTOPPEL CERTIFICATES.
At any time and from time to time designated by either Landlord or Tenant
(but on not less than ten (10) business days prior written request), the
recipient party of such request will execute, acknowledge and deliver to
the requesting party, promptly upon request, an Occupancy Estoppel
Certificate in the form of Exhibit C. In addition, the recipient party
agrees that at any time and from time to time (but on not less than 10
days' prior request by the requesting party and not more frequently than
three (3) times per calendar year), the recipient party will execute,
acknowledge and deliver to the requesting party an Estoppel Certificate
in the form of Exhibit H hereto, as modified and completed as necessary
to make such certificate true and correct in all material respects. Any
such certificate may be relied upon by either Landlord or Tenant and any
prospective purchaser or present or prospective lender, ground lessor or
subtenant or assignee permitted under Section 15 of all or a portion of
the Building, Premises and/or Land.
18. TRANSFER OF LANDLORD'S INTEREST.
18.1 SALE, CONVEYANCE AND ASSIGNMENT.
Nothing in this Lease will restrict Landlord's right to sell, convey or
assign Landlord's interest in the Building or Landlord's interest under
this Lease.
18.2 EFFECT OF SALE, CONVEYANCE OR ASSIGNMENT.
A sale, conveyance or assignment of the Building will automatically
release Landlord from liability under this Lease for obligations accruing
from and after the effective date of the transfer, except for any
liability relating to the period prior to such effective date; and Tenant
will look solely to Landlord's transferee for performance of Landlord's
obligations accruing during the period after such effective date. This
Lease will not be affected by any such sale, conveyance or assignment and
Tenant will attorn to Landlord's transferee.
18.3 SUBORDINATION.
Subject to Landlord's satisfaction of Section 18.5 below, this Lease is
and will be subject and subordinate in all respects to any mortgage or
deed to secure debt now or later encumbering the Building, and to all
their renewals, modifications, supplements,
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consolidations and replacements (an "Encumbrance"). In the alternative,
however, the holder of an Encumbrance may unilaterally elect to
subordinate such Encumbrance to this Lease.
18.4 ATTORNMENT.
If the interest of Landlord is transferred to any person (a "Successor
Landlord") by reason of the termination or foreclosure, or proceedings
for enforcement, of an Encumbrance, or by delivery of a deed in lieu of
such foreclosure or proceedings, Tenant will immediately and
automatically attorn to the Successor Landlord, subject to Landlord's
satisfaction of Section 18.5 below. Upon attornment this Lease will
continue in full force and effect as a direct lease between the Successor
Landlord and Tenant, upon all of the same terms, conditions and covenants
as stated in this Lease except that a Successor Landlord shall not be (a)
liable for any previous act or omission or negligence of Landlord under
this Lease, (b) subject to any counterclaim, defense or offset not
expressly provided for in this Lease and asserted with reasonable
promptness, which theretofore shall have accrued to Tenant against
Landlord, (c) bound by any previous modification or amendment of this
Lease or by any previous prepayment of more than one month's Rent, unless
such modification or prepayment shall have been approved in writing by
the holder of any Encumbrance through or by reason of which the Successor
Landlord shall have succeeded to the rights of Landlord under this Lease,
(d) obligated to perform any repairs or other work beyond Landlord's
obligations under this Lease, (e) liable for the payment of any security
deposit unless same has been delivered to Successor Landlord, (f) bound
by any obligation to pay for services prior to foreclosure, or (g)
responsible for any monies owed by Landlord to Tenant.
18.5 NONDISTURBANCE.
Notwithstanding the foregoing, Tenant's agreement in Sections 18.3 and
18.4 above are expressly conditioned upon Landlord obtaining from the
holder of any Encumbrance encumbering the Building a subordination,
nondisturbance and attornment agreement (a "Nondisturbance Agreement")
substantially in the form of Exhibit I executed by Landlord and the
holder of such Encumbrance.
19. RULES AND REGULATIONS.
Tenant agrees to faithfully observe and comply with the Rules and
Regulations set forth in Exhibit D and with all reasonable modifications
and additions to such Rules and Regulations (which will be applicable to
all Building tenants) from time to time adopted by Landlord and of which
Tenant is notified in writing. No such modification or addition will
contradict or abrogate any right expressly granted to Tenant under this
Lease or otherwise materially increase Tenant's occupancy costs with
respect to the Premises. Landlord's enforcement of the Rules and
Regulations will be uniform and nondiscriminatory, but Landlord will not
be responsible to Tenant for failure of any Person to comply with the
Rules and Regulations.
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20. TENANT'S DEFAULT AND LANDLORD'S REMEDIES.
20.1 DEFAULT.
This Lease and the Term and rights hereby granted are subject to the
following limitations which will each constitute a material breach by
Tenant and a "Default" under this Lease:
(a) Failure to Pay Rent. Tenant fails to pay Base Rent,
Additional Rent or any other Rent payable by Tenant under the terms of
this Lease when due, and such failure continues for 5 days after notice
from Landlord to Tenant of such failure; provided that with respect to
Base Rent and Additional Rent, Tenant will be entitled to only 3 notices
of such failure during any Lease Year and if, after 3 such notices are
given in any Lease Year, Tenant fails, during such Lease Year, to pay any
such amounts when due, such failure will constitute a Default without
further notice by Landlord or additional cure period.
(b) Failure to Perform Other Obligations. Tenant breaches or
fails to comply with any other provision of this Lease applicable to
Tenant, and such breach or noncompliance continues for a period of thirty
(30) days after notice by Landlord to Tenant; or, if such breach or
noncompliance cannot be reasonably cured within such 30-day period,
Tenant does not in good faith commence to cure such breach or
noncompliance within such 30-day period or does not diligently complete
such cure as soon as possible, but no later than 60 days after such
notice from Landlord. However, if such breach or noncompliance causes or
results in (i) a dangerous condition on the Premises or the Building,
(ii) any insurance coverage carried by Landlord or Tenant with respect to
the Premises or Building being jeopardized, or (iii) a material
disturbance to another tenant, then a Default will exist if such breach
or noncompliance is not cured as soon as reasonably possible after notice
by Landlord to Tenant, and in any event is not cured within 30 days after
such notice. For purposes of this Section 20.1 (b), financial inability
will not be deemed a reasonable ground for failure to immediately cure
any breach of, or failure to comply with, the provisions of this Lease.
(c) Unpermitted Transfer of Interest. Tenant's interest under
this Lease or in the Premises is transferred or passes to, or devolves
upon, any other party in violation of Section 15.
(d) Execution and Attachment Against Tenant. Tenant's interest
under this Lease or in the Premises is taken upon execution or by other
process of law directed against Tenant, or is subject to any attachment
by any creditor or claimant against Tenant and such attachment is not
discharged or disposed of within sixty (60) days after levy.
(e) Bankruptcy or Related Proceedings. Tenant files a petition
in bankruptcy or insolvency, or reorganization or arrangement under any
bankruptcy or insolvency Laws, or voluntarily takes advantage of any such
Laws by answer or otherwise, or makes an assignment for the benefit of
creditors, or involuntary proceedings under any such Laws or for the
dissolution of Tenant are instituted against Tenant, or a receiver or
trustee is appointed for the Premises or for all or substantially all of
Tenant's property, and such
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proceedings are not dismissed or such receivership or trusteeship vacated
within 60 days after such institution or appointment.
(f) Notwithstanding the foregoing terms of this Section 20.1, a
monetary default will not be deemed or considered to have occurred under
this Lease by reason of Tenant's failure or refusal to pay any amount or
charge that Landlord considers Rent if Tenant's failure or refusal is
directly attributable to Tenant's good faith assertion stated in a timely
notice to Landlord of any Rent offset or abatement right or remedy
expressly provided in this Lease, unless and until Landlord obtains
judgment from a court of competent jurisdiction or arbitration ruling
pursuant to Section 21.2 that such Rent is due, notwithstanding such
express offset or abatement right or remedy; and, in such event, Landlord
shall thereafter give Tenant notice of such default and an opportunity to
cure same in accordance with the terms of this Section 20.1 before
proceeding with any of Landlord's remedies described in Section 20.2.
20.2 REMEDIES.
Time is of the essence. If any Default occurs, Landlord will have the
right, at Landlord's election, then or at any later time, to exercise any
one or more of the remedies described below. Exercise of any of such
remedies will not prevent the concurrent or subsequent exercise of any
other remedy provided for in this Lease or otherwise available to
Landlord at law or in equity.
(a) Cure by Landlord. Landlord may, at Landlord's option but
without obligation to do so, and without releasing Tenant from any
obligations under this Lease, make any payment or take any action as
Landlord reasonably deems necessary or desirable to cure any Default in
such manner and to such extent as Landlord reasonably deems necessary or
desirable. Landlord may do so without additional demand on, or additional
written notice to, Tenant and without giving Tenant an additional
opportunity to cure such Default. Tenant covenants and agrees to pay
Landlord, upon demand, all reasonable advances, costs and expenses of
Landlord actually incurred in connection with making any such payment or
taking any such action, including reasonable attorney's fees at standard
hourly rates, together with interest at the rate described in Section
4.4, from the date of payment of any such advances, costs and expenses by
Landlord.
(b) Termination of Lease and Damages. Landlord may terminate
this Lease, effective at such time as may be specified by notice to
Tenant, and demand (and, if such demand is refused, recover) possession
of the Premises from Tenant. Tenant will remain liable to Landlord for
damages in an amount equal to the Base Rent, Additional Rent and other
Rent which would have been owing by Tenant for the balance of the Term
had this Lease not been terminated, less the net proceeds, if any, of any
reletting of the Premises by Landlord subsequent to such termination,
after deducting all Landlord's reasonable expenses actually incurred in
connection with such recovery of possession or reletting. Landlord will
be entitled to collect and receive such damages from Tenant on the days
on which the Base Rent, Additional Rent and other Rent would have been
payable if this Lease had not been terminated. Alternatively, at
Landlord's option, Landlord will be entitled to recover from Tenant, as
damages for loss of the bargain and not as a penalty, an
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aggregate sum equal to (i) all unpaid Base Rent, Additional Rent and
other Rent for any period prior to the termination date of this Lease
(including interest from the due date to the date of the award at the
rate described in Section 4.4), plus any other sum of money and damages
owed by Tenant to landlord for events or actions occurring prior to the
termination date; plus (ii) the present value at the time of termination
(calculated at the rate of eight percent (8%) per annum) of the amount,
if any, by which (A) the aggregate of the Base Rent, Additional Rent and
all other Rent payable by Tenant under this Lease that would have accrued
for the balance of the Term after termination (with respect to Additional
Rent, such aggregate will be calculated by assuming that Expenses and
Taxes for the Fiscal Year in which termination occurs and for each
subsequent Fiscal Year remaining in the Term if this Lease had not been
terminated will increase by six percent (6%) per year over the amount of
Expenses and Taxes for the prior Fiscal Year), exceeds (B) the amount of
such base rent, additional rent and other rent which Landlord will
receive for the remainder of the Term from any reletting of the Premises
occurring prior to the date of the award, or if the Premises have not
been relet prior to the date of the award, the amount, if any, of such
base rent, additional rent and other rent which could reasonably be
recovered by reletting the Premises at the then-current fair rental
value, in either case taking into consideration loss of rent while
finding a new tenant, tenant improvements and rent abatements necessary
to secure a new tenant, leasing brokers' commissions and other costs
which Landlord has incurred or might incur in leasing the Premises to a
new tenant (with such tenant improvement, rent abatement and commission
costs being amortized on a straight line basis over the term of such new
lease); plus (iii) interest on the amount described in (ii) above from
the termination date to the date of the award at the rate described in
Section 4.4.
(c) Repossession and Reletting. Landlord may, with due process
of law, re-enter and take possession of all or any part of the Premises,
without additional demand or notice, and repossess the same and expel
Tenant and any party claiming by, through or under Tenant, and remove the
effects of both using such force for such purposes as may be necessary,
but in compliance with due process of law, without prejudice to any
remedies for arrears of Rent or right to bring any proceeding for breach
of covenants or conditions. No such reentry or taking possession of the
Premises by Landlord will be construed as an election by Landlord to
terminate this Lease unless a notice of such intention is given to
Tenant. No notice from Landlord or notice given under a forcible entry
and detainer statute or similar Laws will constitute an election by
Landlord to terminate this Lease unless such notice specifically so
states. Landlord reserves the right, following any reentry or reletting,
to exercise its right to terminate this Lease by giving Tenant such
written notice, in which event the Lease will terminate as specified in
such notice. After recovering possession of the Premises, Landlord may,
from time to time, relet all or any part of the Premises for Tenant's
account, for such term or terms and on such conditions and other terms as
Landlord, in its discretion, determines. Landlord may make such repairs,
alterations or improvements as Landlord considers appropriate to
accomplish such reletting, and Tenant will reimburse Landlord upon demand
for all costs and expenses, including attorneys' fees, which Landlord may
incur in connection with such reletting. Landlord agrees to use
reasonable efforts to mitigate its damages resulting from Tenant's
Default. Landlord may collect and receive the rents for such reletting
but Landlord will in no way be responsible
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or liable for any failure to relet the Premises or for any inability to
collect any rent due upon such reletting. Regardless of Landlord's
recovery of possession of the Premises, Tenant will continue to pay on
the dates specified in this Lease, the Base Rent, Additional Rent and
other Rent which would be payable if such repossession had not occurred,
less a credit for the net amounts, if any, actually received by Landlord
through any reletting of the Premises. Alternatively, at Landlord's
option, Landlord may terminate the Lease and recover damages as provided
in Section 20.2 (b).
(d) Bankruptcy Relief. Nothing contained in this Lease will
limit or prejudice Landlord's right to prove and obtain as liquidated
damages in any bankruptcy, insolvency, receivership, reorganization or
dissolution proceeding, an amount equal to the maximum allowable by any
Laws governing such proceeding in effect at the time when such damages
are to be proved, whether or not such amount be greater, equal or less
than the amounts recoverable, either as damages or Rent, under this
Lease.
21. LANDLORD'S DEFAULT AND TENANT'S REMEDIES.
21.1 DEFAULT.
If Tenant believes that Landlord has breached or failed to comply with
any provision of this Lease applicable to Landlord, Tenant will give
notice to Landlord describing the alleged breach or noncompliance.
Landlord will not be deemed in default under this Lease if Landlord cures
the breach or noncompliance within 30 days after receipt of Tenant's
notice or, if the same cannot reasonably be cured within such 30-day
period, if Landlord in good faith commences to cure such breach or
noncompliance within such period and then diligently pursues the cure to
completion as soon as possible, but no later than one hundred and twenty
(120) days after such notice from Tenant. However, if such breach or
noncompliance causes or results in (i) a dangerous condition in the
Premises or the Building, (ii) any insurance coverage carried by Landlord
or Tenant with respect to the Premises or Building being jeopardized, or
(iii) a material disturbance to Tenant, then a Default will exist if,
with respect to subsection (i) above, Landlord does not remove such
dangerous condition within ten (10) days and then diligently address any
remaining breach or non compliance and, with respect to subsection (ii)
and (iii) above, if any breach or noncompliance is not cured as soon as
reasonably possible after notice by Tenant to Landlord, and in any event
is not cured within thirty (30) days after such notice. Tenant will also
send a copy of such notice to the holder of any Encumbrance of whom
Tenant has been notified in writing, and such holder will also have the
right to cure the breach or noncompliance within the period of time
described above.
21.2 REMEDIES.
Time is of the essence. If Landlord breaches or fails to comply with any
provision of this Lease applicable to Landlord, and such breach or noncompliance
is not cured within the period of time described in Section 21.1, then Tenant
may exercise any right or remedy available to Tenant at law or in equity, except
to the extent expressly waived or limited by the terms of this Lease. If
Landlord fails to (i) provide Landlord's standard services as described in
Section 7.1, or (ii) perform Landlord's repair obligations described in Section
7.1 and such failure or breach has not been cured within the time period
prescribed in Section 21.1, then Tenant may, after giving
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Landlord an additional thirty (30) days' advance notice, cure such default or
breach, all on behalf of and at the expense of Landlord, and do all necessary
work and make all necessary payments in connection therewith. Landlord shall pay
Tenant all reasonable amounts so paid by Tenant, together with interest thereon
at the rate specified in Section 4.4 from the date of payment until re-payment,
within thirty (30) days after notice from Tenant that such cost has been
incurred. If Landlord fails to pay the amount requested by Tenant within such
thirty (30) day period, then Tenant may withhold up to twenty-five percent (25%)
of each payment of Rent thereafter due to Landlord to satisfy the payment of
such indebtedness (with such offset to be applied first to accrued and unpaid
interest); provided, however, that Tenant shall be entitled to increase such
withholding up to one hundred percent (100%) of any and all such payments of
Rent to Landlord at such time that the unpaid and unapplied amount of such
indebtedness (including accrued, unpaid interest) equals or exceeds seventy-five
percent (75%) of the remaining unpaid Base Rent obligations payable for the
balance of the then current Term of this Lease. Notwithstanding the foregoing,
in the event Landlord notifies Tenant that Landlord disputes Tenant's allegation
of a Landlord default under this Lease (such notice to be given prior to the
expiration of the cure period afforded Landlord, as recited in Section 21.1,
with respect to such alleged default), then Landlord shall have the right to
institute an arbitration proceeding in accordance with the provisions of Exhibit
J within ten (10) days after the effective date of such dispute notice; in such
case, Tenant shall not exercise the foregoing "self-help" rights (except in an
emergency), nor shall Landlord be liable for any expenses incurred by Tenant in
connection therewith, nor shall Tenant make any offset against Rent, until (in
each case) such time as all such arbitration proceedings are completed. All
reasonable attorneys' fees and arbitration costs in any such proceeding which
are incurred by the prevailing party shall be paid by the other party.
Furthermore, if Tenant obtains a final, nonappealable judgment or arbitration
award against Landlord with respect to a Landlord default under this Lease or
with respect to a draw by Landlord upon a letter of credit provided pursuant to
Section 22 that is wrongfully made or retained, Tenant shall be entitled to
offset such judgment or award, together with interest thereon at the Default
Rate from the date of entry of such judgment until paid, against Rent payable
under this Lease. Notwithstanding anything contained herein to the contrary,
Tenant shall not be permitted to substitute, replace or interfere with the
contracts of any existing service provider or vendor in connection with its
self-help remedy.
21.3 CURE BY ENCUMBRANCE HOLDER.
If any act or omission by Landlord shall give Tenant the right, immediately or
after the lapse of time, to cancel or terminate this Lease or to claim a partial
or total eviction, Tenant shall not exercise any such right until (a) it shall
have given written notice of such act or omission to each holder of any
Encumbrance and (b) a reasonable period for remedying such act or omission shall
have elapsed following such notice and following the time when such holder of an
Encumbrance shall have become entitled under its Encumbrance to remedy the same
(which shall in no event be less than the period to which Landlord would be
entitled under this Lease to effect such remedy) provided such holder of an
Encumbrance shall, within thirty (30) days of receiving notice of such act or
omission from Tenant, give Tenant notice of its intention to remedy such act or
omission and shall commence and diligently and continuously continue to act upon
such intention.
22. LETTER OF CREDIT.
In consideration of Landlord entering into this Lease, Tenant hereby agrees as
follows:
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(a) Within ten (10) business days after the date of this Lease, Tenant
shall deliver to Landlord, as additional security for the obligations of Tenant
under this Lease, an unconditional, irrevocable standby letter of credit issued
by Columbus Bank & Trust (or such other bank as Landlord and Tenant may
otherwise agree) ("Issuer"), in favor of Landlord, in the amount of EIGHT
MILLION AND NO/100 DOLLARS ($8,000,000.00) (a "Standby Letter of Credit") in
substantially the form attached hereto as Exhibit K, subject to modifications
therein to conform to the terms of this Section 22. The term of the original
Standby Letter of Credit required under this Section 22 shall commence as of the
Date of this Lease and shall expire no earlier than November 30, 2000. The
expiration date of the Standby Letter of Credit shall be clearly stated on its
face by month, day and year. The Standby Letter of Credit shall be payable by
sight draft in the office of Issuer when accompanied by a certificate (the
"Certificate") signed by an authorized representative of Landlord certifying
either that:
(i) Tenant is in Default under this Lease (beyond all applicable
notice and cure periods provided to Tenant under this Lease) with respect to the
payment of Rent due and payable by Tenant to Landlord under this Lease, and that
Landlord has the right under this Lease to receive the amount of the requested
draw pursuant to the provisions of this Lease, or
(ii) Tenant has filed a petition in bankruptcy or that an involuntary
petition in bankruptcy has been filed against Tenant (and such involuntary
petition has not been dismissed within sixty (60) days after filing), and that
Tenant is not making or has not made any one or more payments of Rent due and
payable by Tenant to Landlord under this Lease when due pursuant to this Lease
(beyond all applicable notice and cure periods provided to Tenant under this
Lease).
A copy of the Certificate shall be sent to Tenant in accordance with the notice
provisions of Section 25 of this Lease not less than five (5) business days
before the presentment of the Certificate and the sight draft to Issuer. The
Issuer may rely on the Certificate without independent verification. The Standby
Letter of Credit shall permit partial draws up to the full amount thereof.
(b) Tenant may contest Landlord's right to make a draw upon the
Standby Letter of Credit by filing a claim with the Atlanta, Georgia office of
the American Arbitration Association pursuant to Exhibit J hereto; provided,
however, that no such claim may be filed if the Default serving as the basis for
the subject draw is a failure to pay Base Rent or Additional Rent under this
Lease. With respect to any other Defaults which are not based on Tenant's
failure to pay Base Rent or Additional Rent under the Lease, if a claim is
properly filed by Tenant and Tenant notifies Landlord within five (5) business
days of Landlord's notice of such draw that Tenant intends to contest Landlord's
right to make such draw, Landlord shall not be entitled to draw upon the Standby
Letter of Credit pursuant to the Certificate giving rise to such claim unless
and until such claim has been resolved in Landlord's favor pursuant to binding
arbitration in accordance with Exhibit J.
(c) The Standby Letter of Credit shall be renewed annually
automatically or otherwise shall be replaced annually with a new letter of
credit issued by the Issuer obtained by Tenant at Tenant's cost and delivered to
Landlord on or before the date which is thirty (30) days prior to the
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date on which the Standby Letter of Credit would otherwise expire (the
"Replacement Deadline"), with each such replacement (a "Renewal Standby Letter
of Credit"; each "Renewal Standby Letter of Credit" shall also be deemed a
"Standby Letter of Credit" for purposes of this Section 22) to be effective for
an additional period commencing immediately upon the expiration of the Standby
Letter of Credit which it is replacing and expiring no sooner than the next
succeeding November 30. Except for the term thereof and the face amount thereof
(which may be reduced to the maximum amount on which Landlord is entitled to
draw in accordance with subparagraph (j) below as of the effective date of such
Renewal Standby Letter of Credit), each Renewal Standby Letter of Credit shall
be identical in form and content to the original Standby Letter of Credit,
subject to subsection (k) below. If Tenant fails to deliver any Renewal Standby
Letter of Credit to Landlord on or before the Replacement Deadline, then an
event of Default shall be deemed to have occurred with respect to Tenant under
this Lease, without the benefit or necessity of any further notice or right to
cure (notwithstanding anything in Section 20 to the contrary). In such event,
Landlord shall be entitled to draw immediately the full amount of the Standby
Letter of Credit at any time after the aforesaid Standby Letter of Credit
delivery deadline, without notice to Tenant, other than as provided in the
penultimate sentence of subparagraph (a) above, and otherwise exercise any one
or more of its rights and remedies under this Lease or otherwise available at
law or in equity as a result of such failure by Tenant timely to deliver such
Standby Letter of Credit.
(d) If an event has occurred with respect to Tenant as described in
either clause (i) or clause (ii) of subsection (a) above, Landlord may draw upon
any Standby Letter of Credit on one or more occasions; provided, however, that
any such draw shall be limited in amount to that amount due and owing to
Landlord from Tenant as a result of the specific Tenant's Default (including any
interest or late payment penalties) described in the subject draw Certificate.
Thereafter, Landlord shall be entitled to use, apply and retain the proceeds of
such draw or draws on any Standby Letter of Credit for the payment of any past
due Rent that Tenant may not have paid when due, or reimbursement to Landlord of
any sum which Landlord may expend or be required to expend by reason of such
Default, including, without limitation, any damage or deficiency incurred by
Landlord as a result of the reletting of the Premises (as provided in this
Lease). The use, application or retention of the proceeds of such draw or draws
on the Standby Letter of Credit, or any portion thereof, by Landlord shall not
prevent Landlord from making any further draws upon any Standby Letter of Credit
or from exercising any other right or remedy available to Landlord under this
Lease or applicable law (it being intended that Landlord shall not first be
required to proceed to draw upon any Standby Letter of Credit) and shall not
operate as a limitation on any recovery to which Landlord may otherwise be
entitled, provided that if the proceeds of the Standby Letter of Credit are
applied by Landlord as provided above, the amount of the proceeds so applied pro
tanto shall reduce on a dollar-for-dollar basis the damages otherwise
recoverable by Landlord on account of any such Default with respect to Tenant.
(e) Tenant waives any right to require that Landlord pursue any other
remedy or remedies prior to Landlord's pursuing any draw under any Standby
Letter of Credit. In the event of a Default with respect to Tenant under this
Lease with regard to the matters set out in either clause (i) or clause (ii) of
subsection (a) above, Landlord shall have the right to enforce its rights,
powers and remedies under this Lease, at law or in equity or with respect to the
Standby Letter of Credit, in any order and on one or more occasions, and all
rights, powers and remedies available to
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Landlord in such event shall be non-exclusive and cumulative of all other
rights, powers and remedies provided thereunder or hereunder or at law or in
equity, and no exercise by Landlord of any such rights, powers or remedies shall
constitute an election of remedies by Landlord or shall preclude the subsequent
exercise by Landlord of any of the other rights, powers and remedies available
to Landlord; provided, however, that any damages otherwise recoverable by
Landlord on account of any Default with respect to Tenant shall be reduced by
the amount of the proceeds of the Standby Letter of Credit as provided in
subsection (d) above.
(f) If Landlord makes any draw upon any Standby Letter or Credit,
Tenant shall restore the Standby Letter of Credit to the original amount thereof
within ten (10) business days after Tenant receives notice of such draw. Any
failure by Tenant to do so by such deadline shall entitle Landlord to send
Tenant a written notice advising Tenant that if Tenant fails to restore the
Standby Letter of Credit to the original amount thereof within five (5) business
days of Tenant's receipt of such notice, such failure shall constitute a Default
with respect to Tenant under this Lease, without the necessity of any notice
from Landlord and without any further grace or cure rights (notwithstanding
anything in Section 20 to the contrary).
(g) Tenant acknowledges that Landlord has the right to transfer or
mortgage its interest in the Premises and in this Lease, and Tenant agrees that
in the event of any such transfer or mortgage, Landlord shall have the right to
transfer or assign its rights with respect to the Standby Letter of Credit
subject to Landlord's obligations with respect to the same, and the Standby
Letter of Credit shall so provide. Upon written notice to Tenant of such
transfer and written acknowledgment of such transferee's or mortgagee's
acceptance of such rights and assumption of Landlord's obligations with respect
to any Standby Letter of Credit, Tenant shall look solely to such transferee or
mortgagee with respect to any Standby Letter of Credit, and Landlord shall
thereby be released by Tenant from all liability or obligation with respect to
any Standby Letter of Credit, or the proceeds thereof; provided, however, that
if Landlord has, prior to such transfer or mortgage, made any draws upon any
Standby Letter of Credit and such draw has been made wrongfully, Landlord shall
not be released from any liability or obligation it may have with regard to such
draws, and any such liability or obligation shall be deemed a continuing
obligation of Landlord, and Tenant shall retain its offset rights under this
Lease with respect thereto, notwithstanding anything in this subsection (g) to
the contrary.
(h) If Tenant fails to deliver the original Standby Letter of Credit
to Landlord on or before the tenth (10th) business day after the Date of this
Lease, then a default shall be deemed to have occurred with respect to Tenant
under this Lease, without the necessity or benefit of any further notice or
right to cure (notwithstanding anything in Section 20 to the contrary) and
Landlord shall be entitled to terminate this Lease at any time within thirty
(30) days after the aforesaid Standby Letter of Credit delivery deadline, by
written notice to Tenant, which shall be Landlord's sole and exclusive remedy as
a result of such failure by Tenant timely to deliver such Standby Letter of
Credit.
(i) Upon any termination of this Lease, provided no sums are payable
to Landlord, Landlord shall deliver or cause to be delivered to Tenant the
Standby Letter of Credit within thirty (30) days after the date of such
termination. Landlord's obligation to deliver to Tenant the Standby Letter of
Credit shall survive any such Lease termination. Landlord's failure to deliver
to
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Tenant the Standby Letter of Credit upon such termination shall constitute a
default under the Lease entitling Tenant (after giving notice of such default to
Landlord and failure by Landlord to deliver the Standby Letter of Credit to
Tenant within ten (10) business days after Landlord's receipt of such notice,
notwithstanding any provision of Section 21 to the contrary) to exercise all of
its remedies, at law or in equity, respecting such default.
(j) The maximum amount of the Standby Letter of Credit on which
Landlord will be entitled to draw shall be maintained in the following amounts
during the following periods:
<TABLE>
<CAPTION>
Amount of Standby
Period Letter of Credit
------ ----------------
<S> <C>
Pre-Construction Period $8,000,000.00
Construction Period prior
to Commencement Date $8,000,000.00
First Lease Year $8,000,000.00
Second Lease Year $8,000,000.00
Third Lease Year $7,000,000.00
Fourth Lease Year $6,000,000.00
Fifth Lease Year $5,000,000.00
Sixth Lease Year $4,000,000.00
Seventh Lease Year $3,000,000.00
Eighth Lease Year $2,000,000.00
Ninth Lease Year $1,000,000.00
</TABLE>
Notwithstanding the foregoing, if Tenant does not have a "current net asset"
balance (as hereinafter defined), of at least One Hundred Million and No/100
Dollars ($100,000,000.00) as of the date of its most recent balance sheet issued
prior to an anniversary of the Commencement Date, the scheduled reduction in the
amount of the Standby Letter of Credit as of such anniversary date will not be
permitted until such current net asset balance test is satisfied.
Notwithstanding the foregoing table, in no event will the Standby Letter of
Credit ever be reduced pursuant to this subparagraph (j) as of any anniversary
by an amount in excess of $1,000,000 below the amount of the Standby Letter of
Credit immediately prior to such anniversary date. For purposes of the
foregoing, "current net assets" shall mean cash and cash equivalents,
unrestricted marketable securities and investments, accounts receivable under
ninety (90) days old and notes receivable from unrelated third parties; "current
net liabilities" shall mean accounts payable, accrued expenses and the current
portion of any debt; and "current net asset balance" shall mean the current net
assets less current net liabilities. All of the foregoing shall be determined in
accordance with generally accepted accounting principles, consistently applied.
(k) If Tenant is entitled thereto pursuant to the terms of
subparagraph (j) above, Tenant may instruct the Issuer to cause the maximum
amount of the Standby Letter of Credit to be reduced by $1,000,000 by delivering
a certificate to Issuer signed by an authorized representative of Tenant
certifying that the current net asset balance test under said subparagraph (j)
has been satisfied. A copy of said certificate shall be sent to Landlord in
accordance with the notice provisions of Section 25 of this Lease not less than
five (5) business days before the delivery of
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the certificate to Issuer. The Issuer may rely on the certificate without
independent verification. The maximum amount of the Standby Letter of Credit may
be reduced either pursuant to the terms of the Standby Letter of Credit or by
issuance of a Replacement Standby Letter of Credit.
(l) Landlord and Tenant hereby approve a Standby Letter of Credit in
the form of Exhibit K, attached hereto and incorporated herein by this
reference. Landlord agrees not to unreasonably withhold, condition or delay its
consent to another form of Standby Letter of Credit proposed by Tenant's bank
provided such form is substantially the same as the form attached as Exhibit K.
Tenant acknowledges that a Standby Letter of Credit in an approved form will
require replacement, as provided in subsection (c) above, thirty (30) days prior
to the expiration of the Standby Letter of Credit in accordance with its terms.
23. BROKERS.
Landlord and Tenant represent and warrant that no broker or agent
negotiated or was instrumental in negotiating or consummating this Lease
except the Brokers. Neither party knows of any other real estate broker
or agent who is or might be entitled to a
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commission or compensation in connection with this Lease. Landlord will pay all
fees, commissions or other compensation payable to the Brokers. Pursuant to
Georgia Real Estate Commission Regulation 520-1-108, Trizec Colony Square, Inc.
and Frederick Roddy Realty, hereby disclose the following concerning this lease
transaction: (1) Trizec Colony Square, Inc. represents Landlord and not Tenant;
(2) Frederick Roddy Realty represents Tenant and not Landlord; and (3) both
Trizec Colony Square, Inc. and Frederick Roddy Realty shall receive their
compensation from Landlord. Tenant and Landlord will indemnify and hold each
other harmless from all damages paid or incurred by the other resulting from any
claims asserted against either party by brokers or agents, other than Brokers
claiming through the other party. Landlord's obligation under this Section 23
will survive the expiration or early termination of the Term.
24. LIMITATIONS ON LIABILITY.
(a) Any liability for damages, breach or nonperformance by
Landlord, or arising out of the subject matter of, or the relationship
created by, this Lease, will be collectible only out of Landlord's
interest in the Building and the rents and sales, insurance and
condemnation proceeds thereof, and no personal liability is assumed by,
or will at any time be asserted against, Landlord, its parent and
affiliated corporations, its and their partners, venturers, directors,
officers, agents, servants and employees, or any of its or their
successors or assigns other than with respect to any such rents and
proceeds received by any of them; all such liability, if any, being
expressly waived and released by Tenant. Landlord's review, supervision,
commenting on or approval of any aspect of work to be done by or for
Tenant (under Section 9, Exhibit B or otherwise) are solely for
Landlord's protection and except as expressly provided, create no
warranties or duties to Tenant or to third parties.
(b) Neither Landlord nor Tenant shall have any liability or
responsibility under or with respect to this Lease, or for the breach of
any duty, covenant or obligation hereunder, for any consequential,
speculative or indirect damages.
25. NOTICES.
All notices required or permitted under this Lease must be in writing and
will only be deemed properly given and received (a) when actually given
and received, if delivered in person to a party who acknowledges receipt
in writing or (b) 2 business days after deposit in the United States
mails, certified or registered mail with return receipt requested and
postage prepaid. All such notices must be transmitted by one of the
methods described above to the party to receive the notice at, in the
case of notices to Landlord, both Landlord's Building Address and
Landlord's General Address, with a copy to Landlord's mortgagee of which
Tenant has notice, and in the case of notices to Tenant, the applicable
Tenant's Notice Address, or, in either case, at such other address(es) as
either party may notify the other of according to this Section 25. Time
shall be of the essence for the giving of all notices required or
permitted under the provisions of this Lease.
26. MISCELLANEOUS.
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26.1 BINDING EFFECT.
Each of the provisions of this Lease will extend to bind or inure to the
benefit of, as the case may be, Landlord and Tenant, and their respective
heirs, successors and assigns, provided this clause will not permit any
transfer by Tenant contrary to the provisions of Section 15.
26.2 COMPLETE AGREEMENT; MODIFICATION.
All of the representations and obligations of the parties are contained
in this Lease and for exhibits and other attachments hereto, and no
modification, waiver or amendment of this Lease or of any of its
conditions or provisions will be binding upon a party unless in writing
signed by such party.
26.3 DELIVERY FOR EXAMINATION.
Submission of the form of the Lease for examination will not bind
Landlord in any manner, and no obligations will arise under this Lease
until it is signed by both Landlord and Tenant and delivery is made to
each.
26.4 NO AIR RIGHTS.
This Lease does not grant any easements or rights for light, air or view.
Any diminution or blockage of light, air or view by any structure or
condition now or later erected will not affect this Lease or impose any
liability on Landlord.
26.5 ENFORCEMENT EXPENSES.
Each party agrees to pay, upon demand, all of the other party's costs,
charges and expenses, including the fees and out-of-pocket expenses of
counsel, agents, and others retained, incurred in successfully enforcing
the other party's obligations under this Lease. In connection with any
payment of attorneys' fees and costs pursuant to this Section 26.5,
Landlord and Tenant hereby waive any right either might have under
O.C.G.A. 13-1-11 respecting the determination of such attorneys' fees and
costs. In addition to the foregoing award of attorneys' fees to the
successful party, the successful party in any law suit on this Lease
shall be entitled to its attorneys' fees and costs incurred in any
post-judgment proceedings to collect or enforce the judgment obtained by
such successful party. This provision is separate and several and shall
survive the merger of this Lease into any judgment on this Lease, and all
obligations under this Section 26.5 will survive the expiration or early
termination of the Term.
26.6 BUILDING PLANNING.
At any time after the Date, Landlord may (upon at least 45 days prior
notice) substitute for the Premises other premises in the Building ("New
Premises") provided that the New Premises will be similar to the Premises
in area and proximity to the elevator lobby and otherwise usable for
Tenant's purpose. If Tenant is already occupying the Premises, then
Landlord will also pay the reasonable expenses of Tenant's moving from
the Premises to the New Premises and for improving the New Premises so
that the leasehold improvements in the New Premises are substantially
similar to those in the Premises. Such move will be made during evenings,
weekends or otherwise so as to incur the least inconvenience to Tenant.
Notwithstanding anything herein to the contrary, Landlord's right to
relocate the
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Tenant as provided herein shall only apply with respect to those portions
of Tenant's Premises located on multi-tenant floors that are
non-contiguous to the Tenant's main Premises and that measure 8,000
rentable square feet or less.
26.7 LANDLORD'S NAME.
Tenant will not, without Landlord's consent, use Landlord's name, for any
commercial purpose. Landlord reserves the right, upon reasonable prior
notice to Tenant, to change the name or address of the Building, provided
that if Landlord changes the name of the Building or street address and
such change is not required by applicable Law or by the United States
Postal Service, Landlord shall reimburse Tenant up to $2,000 of the
reasonable costs incurred by Tenant to replace stationery, business
cards, websites, invoices and other forms and media used in Tenant's
business which have the old address or name printed or otherwise
presented thereon; provided, however, that Landlord shall not have any
such obligation to Tenant if Landlord gives Tenant at least six (6)
months advance notice of such change. In no event shall Landlord name the
Complex or the Building therein for a direct competitor of Tenant during
the Term of the Lease.
26.8 BUILDING STANDARD.
The phrase "Building Standard" will, in all instances, mean the type,
brand and/or quality of materials Landlord designates from time to time
to be the minimum quality to be used in the Building or the exclusive
type, grade or quality of material to be used in the Building and shall
refer to the then-current standard described in Landlord's most recently
published schedule of Building standard or, if no such schedule has been
published, to the standard which commonly prevails in and for the entire
Building. No material shall be a Building Standard unless Landlord
adheres to such standard itself.
26.9 NO WAIVER.
No waiver of any provision of this Lease will be implied by any failure
of either party to enforce any remedy upon the violation of such
provision, even if such violation is continued or repeated subsequently.
No express waiver will affect any provision other than the one specified
in such waiver, and that only for the time and in the manner specifically
stated.
26.10 RECORDING; CONFIDENTIALITY.
Tenant will not record this Lease, or a short form memorandum, without
Landlord's written consent and any such recording without Landlord's
written consent will be a Default. Landlord and Tenant agree to keep the
Lease terms, provisions and conditions confidential and will not disclose
them to any other person without the other party's consent, except that
disclosures may be made (a) to prospective lender(s) or prospective
purchaser(s), (b) to the attorneys for such party or such party's
prospective lender(s), (c) to consultants for such party or such party's
prospective lender(s), (d) to those Persons assisting such party or such
party's prospective lender(s) with any transaction, (e) to such party's
investors, and (f) as required by court proceedings, governmental order
or applicable law, including, without limitation, any filings with the
Securities and Exchange Commission or successor agency.
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26.11 CAPTIONS.
The captions of sections are for convenience only and will not be deemed
to limit, construe, affect or alter the meaning of such sections.
26.12 INVOICES.
All bills or invoices to be given by Landlord to Tenant will be sent to
Tenant's Invoice Address. Tenant may change Tenant's Invoice Address by
notice to Landlord given according to Section 25. Subject to the
provisions of Section 4.6 respecting a Material Discrepancy, if Tenant
fails to give Landlord specific written notice of its objections within
24 months after receipt of any bill or invoice from Landlord, such bill
or invoice will be deemed true and correct and Tenant may not later
question the validity of such bill or invoice or the underlying
information or computations used to determine the amount stated.
26.13 SEVERABILITY.
If any provision of this Lease is declared void or unenforceable by a
final judicial or administrative order, this Lease will continue in full
force and effect, except that the void or unenforceable provision will be
deemed deleted and replaced with a provision as similar in terms to such
void or unenforceable provision as may be possible and be valid and
enforceable.
26.14 JURY TRIAL.
[Intentionally Deleted.]
26.15 AUTHORITY TO BIND.
The individuals signing this Lease on behalf of Landlord and Tenant
represent and warrant that they are empowered and duly authorized to bind
Landlord or Tenant, as the case may be, to this Lease.
26.16 ONLY LANDLORD/TENANT RELATIONSHIP.
Landlord and Tenant agree that neither any provision of this Lease nor
any act of the parties will be deemed to create any relationship between
Landlord and Tenant other than the relationship of landlord and tenant.
26.17 COVENANTS INDEPENDENT.
The parties intend that this Lease be construed as if the covenant
between Landlord and Tenant are independent and that the Rent will be
payable without offset, reduction or abatement for any cause except as
otherwise specifically provided in this Lease.
26.18 GOVERNING LAW.
This Lease will be governed by and construed according to the laws of the
State of Georgia.
26.19 TIME OF ESSENCE.
Time is of the essence of this Lease and all of the duties, covenants and
obligations herein or hereunder.
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26.20 USUFRUCT.
Tenant has only a usufruct under this Lease which is not subject to levy
or sale, and no estate will pass from Landlord to Tenant. Tenant's rights
to use the Premises are solely contractual.
27. RIGHT TO RENEW.
Provided that no Default has occurred and is continuing with respect to
Tenant at the time of its exercise of this option, Tenant shall have two
(2) options to extend the Term of the Lease ("Extension Option") for two
(2) consecutive five (5) year periods only (each an "Extension Term"
respectively) upon all of the following conditions:
(a) Tenant shall exercise this Extension Option by notice to
Landlord which must be received by Landlord no later than 5:00 p.m. on
the date twelve (12) months prior to the Expiration Date of the term in
question, but no earlier than eighteen (18) months prior to the
Expiration Date of the term in question. Each Extension Option shall be
valid if exercised with respect to the entire Premises, as expanded from
time to time, or less than the entire Premises so long as the portion of
the Premises with respect to which the Extension Option is exercised (i)
constitutes one or more whole floors of the Building and, if the
Extension Option is executed with respect to more than one (1) floor,
such floors are contiguous floors, and (ii) includes either the second
(2nd) or the fifth (5th) floor of the Building (if the Extension Option
is exercised with respect to any of the Office Tower Premises) or both
floors of the Garden Space.
(b) Within thirty (30) days after the date of Tenant's notice
(the "Determination Date"), Landlord shall compute the "Extension Rate",
which shall be 95% of Market Rent (as described in subsection (f) below),
and notify Tenant in writing of the resulting amount, which amount shall
be subject to Tenant's review and approval. All other terms of this Lease
(excluding any Landlord's work or Allowances and except that Tenant's
Extension Option shall apply to one (1) less Extension Term) shall apply
during the 1st and 2nd Extension Terms.
(c) If Landlord and Tenant shall fail to agree upon the Market
Rent within sixty (60) days after the Determination Date, then Landlord
and Tenant each shall give notice to the other, within ten (10) days
after the expiration of such sixty (60) day period, setting forth their
respective determination of the Market Rent (the "Determination Notice").
Subject to the provisions of subsection (d) below, the parties shall then
apply to the American Arbitration Association or any successor thereto
for the designation of an arbitrator satisfactory to both parties to
render a final determination of the Market Rent. The arbitrator shall be
a real estate appraiser or consultant who shall have at least fifteen
(15) years continuous experience in the business of appraising or is
knowledgeable in rental rates and lease transactions in the Building and
the Buckhead, Atlanta, Georgia market area. The arbitrator shall conduct
such hearings and investigations as the arbitrator shall deem appropriate
and shall, within thirty (30) days after having been appointed, choose
one of the determinations of Market Rent set forth in either Landlord's
or Tenant's Determination Notice, and that choice by the arbitrator shall
be binding upon Landlord and
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Tenant. Each party shall pay its own counsel fees and expenses, if any,
in connection with any arbitration under this subsection (c), and the
parties shall share equally all other expenses and fees of any such
arbitration. The determination rendered in accordance with the provisions
of this subsection (c) shall be final and binding in fixing the Market
Rent. The Extension Rate for the subject Extension Term shall be
ninety-five percent (95%) of the Market Rent as so determined. The
arbitrator shall not have the power to add to, modify, or change any of
the provisions of this Lease, or either of the Market Rate determinations
set forth in Landlord's and Tenant's respective Determination Notices.
(d) In the event that the determination of the Market Rent set
forth in the Landlord's and Tenant's Determination Notices shall differ
by less than five (5%) percent per rentable square foot per annum for
each year during the Extension Term, then the Market Rent shall not be
determined by arbitration, but shall instead be set by taking the average
of the determinations set forth in Landlord's and Tenant's Determination
Notices. Only if the determinations set forth in Landlord's and Tenant's
Determination Notices shall differ by more than five (5%) percent per
rentable square foot per annum for any year during the Extension Term
shall the actual determination of Market Rent be made by an arbitrator as
set forth in subsection (c) above.
(e) If for any reason the Market Rent shall not have been
determined prior to the commencement of the Extension Term, then, until
the Market Rent and, accordingly, the Extension Rate, shall have been
finally determined, the fixed annual rent shall remain the same as
payable during the last year of the Term of the Lease, as extended. Upon
final determination of the Market Rent, an appropriate adjustment to the
fixed annual rent shall be made reflecting such final determination, and
Landlord and Tenant, as the case may be, shall promptly refund or pay to
the other any overpayment or deficiency, as the case may be, in the
payment of fixed annual rent from the commencement of the Extension Term
to the date of such final determination.
(f) "Market Rent" shall mean the market annual Base Rent and
Additional Rent for the Premises, based on new and renewing tenancies
(for a term comparable to the time period in question) covering office
space of comparable size and quality to the Premises in comparable
buildings in comparable locations in the Buckhead, Atlanta, Georgia
market area, including the Building (and the rent for which such tenancy
was determined and commenced within twelve (12) months before the
Determination Date) taking into account all pertinent factors including
but not limited to Tenant's credit worthiness, relative Base Year or
expenses stop provisions, the involvement or non-involvement of a broker,
that Tenant is not receiving a market improvement allowance, the value
and savings realized by Tenant by utilizing the existing Tenant Leasehold
Improvements in their then condition, rental abatement or other
concessions, if any, from Landlord typical of what is given a new tenant
and assuming Landlord and Tenant to be prudent persons willing to lease
but being under no compulsion to do so. By the above reference to the
absence of a compulsion to enter into a tenancy, Landlord and Tenant do
not intend to exclude renewal tenancies arising out of a tenant's
exercise of a fixed option to extend its lease term.
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(g) If Tenant fails to exercise the Extension Option for the
first (1st) Extension Term, the Extension Option for the second (2nd)
Extension Term shall be null and void; and
(h) Time is of the essence of this Extension Option.
Each Extension Option applies only to an extension of the Lease
for the Extension Term applicable to such Extension Option. Except for
the above modifications, all other provisions and conditions of the Lease
shall apply in each of the Extension Terms. Each Extension Option shall
be void if Tenant fails to exercise it precisely according to each and
all of the conditions stated above, or if Tenant assigns the Lease or
sublets more than fifty percent (50%) of the Premises or otherwise
transfers all or more than fifty percent (50%) of its interest in the
Lease or the Premises, except as allowed under Section 15.7 of the Lease.
28. EXPANSION OPTION
Provided that no Default has occurred and is continuing with respect to
Tenant at the time of its exercise of this option, Tenant shall have the
option to expand ("Expansion Option") into that area of up to 25,000
contiguous rentable square feet known as "Expansion Area #1" (as more
particularly described below), upon all of the following conditions:
(a) Tenant shall exercise this Expansion Option by written
notice which must be received by Landlord no later than 5:00 p.m. on the
date which is nine (9) months prior to the Expansion Date (as defined in
the following sentence). The Expansion Date, currently the first day of
the sixty-seventh (67th) full calendar month of the Lease Term, shall be
subject to an adjustment of no more than six (6) months which adjustment
shall be made by Landlord in its sole discretion provided Landlord
delivers Tenant notice of such adjustment by no later than the first
(1st) day of the fifty-fifth (55th) full calendar month of the Lease
Term. Within one (1) month of Landlord's receipt of Tenant's notice,
Landlord shall identify that area within the Building available for
Tenant's expansion needs ("Expansion Area #1") by providing Tenant a
floor plan of said area. Landlord and Tenant hereby agree that Expansion
Area #1 shall be contiguous with Tenant's Premises, shall be located on a
single floor of the Office Tower (unless such space includes space on a
floor only partially occupied by Tenant, in which case Expansion Area #1
shall be all of the space on such floor not previously occupied by Tenant
and space on one (1) other floor contiguous to the Premises) and located
in that portion of the Office Tower containing the same elevator bank
where Tenant's existing Premises are located. Within ten (10) business
days of Landlord's identification of the Expansion Area #1, Tenant shall
notify Landlord of what portion of Expansion Area #1 Tenant elects to
take; and
(b) The Lease Term for Expansion Area #1 shall commence ninety
(90) days after the date Landlord delivers Expansion Area #1 to Tenant
and shall expire on the Expiration Date. The applicable commencement date
is hereinafter referred to as the "Expansion Area #1 Commencement Date";
and
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(c) The Base Rent and Additional Rent for Expansion Area #1
shall be the Market Rent as determined in accordance with Section 27
above, and the Tenant Leasehold Improvement Allowance shall be the Market
Allowance as determined in accordance with Section 27 above; and
(d) Tenant shall provide Landlord with plans and specifications
with respect to Expansion Area #1in a timely manner; and
(e) Tenant shall complete the buildout in accordance with plans
and specifications approved by Landlord (which approval shall not be
unreasonably withheld, conditioned or delayed) and the provisions of
Section 9.1 of this Lease.
(f) Time is of the essence of this Expansion Right.
Except as to the above modifications, all other provisions of this Lease
shall apply to Expansion Area #1. This Expansion Option applies to Tenant
only and shall be void if Tenant fails to exercise it precisely according
to each and all of the conditions stated above, or if Tenant assigns the
Lease or sublets more than fifty percent (50%) of the Premises or
otherwise transfers all or more than fifty percent (50%) of its interest
in the Lease of the Premises except as allowed under Section 15.7 herein.
29. RIGHT OF FIRST OFFER
Provided that no Default has occurred and is continuing with respect to
Tenant at the time of its exercise of this First Offer Right, Landlord
hereby grants to Tenant the on-going option to lease, upon the terms and
conditions hereinafter set forth, all or a portion of certain space in
the Office Tower located on same elevator bank as the Premises are
located (as more particularly described and attached hereto as Exhibit
A-1) and, from and after the third (3rd) anniversary of the Commencement
Date, all or a portion of the space located on the high-rise elevator
bank of the Office Tower (collectively, "Offer Area #1") when it becomes
"available for leasing" (as determined in accordance with subsection (a)
below) during the Term of the Lease, as it may be extended ("First Offer
Right").
(a) a portion of Offer Area #1 shall be deemed to be "available
for leasing" upon, and only upon, the occurrence of one of the
following events:
(i) such portion of Offer Area #1 is not subject to an
Existing Lease (as hereinafter defined);
(ii) if such portion of Offer Area #1 is subject to a
right or option granted in an Existing Lease (whether to
extend/renew or to expand), all of which rights or options
are not exercised, the expiration or termination of the
last of such unexercised right or option; and
(iii) if such portion of Offer Area #1 is subject to a
right or option granted in an Existing Lease (a) which
right or option is exercised, the expiration or termination
of the term of such Existing Lease or any later
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date upon which the term of the demise of such portion of
Offer Area #1 created by the exercise of such right or
option expires (including any renewals or extensions
thereof granted in such Existing Lease) or (b) Landlord
secures written confirmation from any such tenant subject
to an Existing Lease that said tenant waives and releases
any such right or option available to it with respect to
such portion of Offer Area #1.
(b) During the Term of the Lease, Landlord shall, on a
quarterly basis, give Tenant written notice (the "Offer Notice")
setting forth the available space (the "Offer Area #1 Available
Space") of each portion of Offer Area #1. The date of availability
of any Offer Area #1 Available Space shall not be less than sixty
(60) days after the date such notice is given by Landlord. The
Base Rent and Additional Rent for the subject portion of Offer
Area #1 shall be Market Rent as determined in Section 27 above and
the subject portion of Offer Area #1 shall be delivered in "as-is"
condition, provided that Landlord shall provide Tenant an
Allowance for leasehold improvements for each portion of the Offer
Area #1 leased by Tenant equal to the Market Allowance, which
Market Allowance shall be determined in the same manner as Market
Rent is determined in Section 27 above. The Offer Notice shall set
forth Landlord's determination of such Market Rent and Market
Allowance; and
(c) Tenant may lease all or any portion of the Offer Area #1
Available Space on the terms described in the Offer Notice,
provided; however, any remaining portion of the Offer Area #1
Available Space that is not leased by Tenant shall be contiguous
space of a shape, size and location which Landlord, in Landlord's
reasonable discretion, considers reasonably marketable. In the
event Landlord determines such remaining space within the Offer
Area #1 Available Space is not reasonably marketable, Landlord
shall notify Tenant within ten (10) business days of its receipt
of receipt of Tenant's notice and Tenant and Landlord shall
thereafter cooperate in good faith to reconfigure the space in the
Offer Area #1 Available Space so that it is reasonably marketable;
and
(d) Tenant's right to lease a portion of Offer Area #1 on the
terms set forth in this Section 29 and, to the extent not in
conflict therewith, the terms described in the applicable Offer
Notice shall be exercisable by notice from Tenant to Landlord
given not later than twenty (20) business days after the Offer
Notice is delivered. Tenant shall be deemed to have declined a
lease for a portion of Offer Area #1 if its acceptance is delayed
or if the acceptance changes any term or condition of the Offer
Notice, other than a term that is not consistent with this
Paragraph 29; provided, however, that if Tenant does not agree
with Landlord's determination of the Market Rent or Market
Allowance, such acceptance shall set forth Tenant's determination
thereof, and such matter or matters as to which Landlord and
Tenant disagree shall then be determined in the manner provided in
Section 27. If such right is not so exercised, then for the
following one hundred eighty (180) days, Landlord shall have the
right to Lease said portion of Offer Area #1 to a third party on
materially the same terms as those offered to Tenant in the Offer
Notice; and
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(e) If Tenant has validly exercised this First Offer Right for
any portion of Offer Area #1 in accordance with the terms hereof,
Landlord and Tenant, within fifteen (15) business days after
request by either party hereto, shall enter into a written
amendment to this Lease confirming the terms, conditions and
provisions applicable to such portion of the Offer Area #1 as
determined in accordance herewith; and
(f) The Lease Term for any portion of Offer Area #1 leased by
Tenant pursuant to this Section 29 shall commence upon the date
sixty (60) days following the date Landlord provides access to
Offer Area #1 to Tenant for construction purposes ("Offer Area #1
Commencement Date") and shall expire on the Expiration Date; and
(g) As used herein, the term "Existing Lease" shall mean (i) a
lease (other than this Lease) of any space in Offer Area #1 in
effect as of, or subsequent to, the Date hereof (including
extensions and renewals thereof pursuant to options granted
therein or otherwise), whether or not the term of such lease has
yet commenced and (ii) any lease in effect as of the date of the
commencement of the initial Term of the Lease, whether or not the
term of such lease has then commenced. In the event two leases are
in effect for any portion of the Offer Area #1 (for example, the
term of a lease which is now in effect for a portion of the Offer
Area #1 will soon expire, and another lease covering part or all
of such space has already been executed with a new tenant for a
term commencing after the expiration of the term of the former
lease), only one of such leases shall be an Existing Lease. In
such case, the Existing Lease shall be determined by comparing the
dates upon which the respective terms of such two leases end, and
the lease with the later expiration date shall be deemed to be the
Existing Lease and the other lease shall be disregarded; and
(h) Notwithstanding anything contained herein to the contrary,
this First Offer Right shall be subject and subordinate to
Landlord's right to expand the size of the premises of any tenant
leasing space in the Offer Area #1, whether by exercise of a lease
option or otherwise, provided any such expansion increases the
size of such tenant's premises to at least a full floor of any
portion of Offer Area #1; and
(i) Tenant shall provide Landlord with plans and specifications
with respect to that portion of Offer Area #1 to be leased by
Tenant in a timely manner; and
(j) Tenant shall complete the buildout of the subject portion
of Offer Area #1 in accordance with plans and specifications
approved by Landlord (which approval shall not be unreasonably
withheld, conditioned or delayed) and the provisions of Section
9.1 of this Lease.
(k) Time is of the essence of this First Offer Right.
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This First Offer Right applies to Tenant only and shall be void if Tenant
fails to exercise it precisely according to each and all of the
conditions stated above, or if Tenant assigns the Lease or sublets more
than 50,000 rentable square feet of the Premises or otherwise transfers
all or more than 50,000 rentable square feet of its interest in the Lease
or the Premises, except as allowed under Section 15.7 of this Lease. In
addition to the foregoing, the First Offer Right shall not be in effect
at any time during which less than thirty (30) months remain with respect
to the Lease Term (as extended, if applicable, by either of the Extension
Terms described in Section 27 herein).
30. CONTRACTION OPTION
Tenant shall have the option to reduce the size of the Premises with
respect to no more than the equivalent of one (1) full floor of the
Office Tower Premises as of the last day of the sixtieth (60th) full
calendar month of the Lease Term ("Contraction Date") upon the conditions
stated below. This "Contraction Option" shall be void unless exercised
according to these conditions:
(a) Tenant shall exercise this Contraction Option by written
notice ("Contraction Notice") to Landlord identifying what portion of the
Premises Tenant intends to contract; such Contraction Notice must be
received by Landlord at least nine (9) months prior to the Contraction
Date. That portion of the Premises which Tenant does not elect to retain
as identified in Tenant's Contraction Notice shall be referred to herein
as the "Contraction Space". The Contraction Space shall be located on the
top floor or floors of the Office Tower on which the portions of the
Premises are located, except that if such top floor or floors of the
Office Tower on which portions of the Premises are located includes
Tenant's "chief" level executive offices, then the Contraction Space
shall not be required to include such space; and
(b) No Default shall have occurred and be continuing with
respect to Tenant at the time of the Contraction Notice, and for the
remainder of the Term through the Contraction Date; and
(c) The Contraction Space shall be contiguous space of a shape,
size and location which Landlord, in Landlord's reasonable discretion,
considers reasonably marketable. That portion of the Premises which
Tenant elects to retain shall be contiguous to Tenant's Premises. In the
event Landlord determines such Contraction Space is not reasonably
marketable, Landlord shall notify Tenant within ten (10) business days of
its receipt of the Contraction Notice and Tenant and Landlord shall
thereafter cooperate in good faith to reconfigure the Contraction Space
so that it is reasonably marketable; and
(d) Simultaneously with Tenant's Contraction Notice, Tenant
shall pay Landlord a Termination Option Fee equal to (i) any unamortized
Tenant Leasehold Improvement Allowance (as described in Exhibit B
attached hereto) and leasing commissions attributable to the Contraction
Space, which amortization for this purpose shall be on a straight line
basis over the initial term of the Lease; and (ii) six months Base Rent
with
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respect to the Contraction Space at the rate in effect on the date of the
Contraction Notice; and
(e) Effective as of the Contraction Date, Tenant's Base Rent
and Tenant's Office Tower Share shall be reduced to reflect that portion
of the Premises retained by Tenant; and
(f) Time is of the essence of this Contraction Option.
This Contraction Option applies to Tenant only and shall be void if
Tenant fails to exercise it precisely according to each and all of the
conditions stated above, or if Tenant assigns the Lease or otherwise
transfers all or more than fifty percent (50%) of its interest in the
Lease or the Premises.
31. SIGNAGE
Tenant shall have the right, at Tenant's sole cost and expense, to
install appropriate signage (including Tenant's corporate name and logo)
on the Building directory and on the walls of the elevator lobbies and
entrance doors of any full floors leased by Tenant and on two (2)
exterior facade(s) of the Office Tower (as determined by Tenant) at the
top of the Building at a mutually acceptable location (each party
agreeing not to unreasonably withhold, condition or delay its approval of
such location), on a monument sign adjacent to the Office Tower (which
may be shared with other tenants of the Building provided that (i)
Tenant's sign will be placed in the location selected and mutually agreed
upon as between Tenant and Landlord, (ii) Tenant will have its choice of
sign position on such monument sign, and (iii) Tenant's sign will be at
least twice the size of any other tenant or occupant in the Complex
leasing less than 100,000 square feet in the Building, and in no event
will Tenant's sign be smaller than that of any other tenant in the
Building, provided Tenant leases not less than 135,000 rentable square
feet in the Building). All signs shall first approved in writing by
Landlord (such approval not to be unreasonably withheld, conditioned or
delayed) and subject to any applicable Laws. Tenant shall remove all such
signs by the termination of this Lease. Such installations and removals
shall be made in such manner as to avoid injury to or defacement of the
Building and other improvements, and Tenant shall repair any injury or
defacement, excluding discoloration, caused by such installation or
removal. If at any time Tenant no longer leases at least 135,000 rentable
square feet in the Building and, at such time, Landlord has leased at
least 135,000 rentable square feet in the Building to another tenant who
has the desire and the ability to place its name on the Building and who
is not a direct competitor of Tenant, then Landlord may remove Tenant's
sign or signs from the top of the Building and permit such other tenant
to install its name sign on the Building. Tenant's rights under this
Section 31 shall not be assignable to a third party other than a
transferee permitted under Section 15.7 hereof. Landlord agrees to use
its best efforts (without expenditure of funds) to obtain all necessary
permits and approvals from applicable governmental authorities and
private parties to permit Tenant to install all of the signs to which
Tenant is entitled under this Section 31.
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32. ROOFTOP COMMUNICATIONS EQUIPMENT
32.1 RIGHT TO INSTALL ANTENNA.
In addition to the other rights granted by this Lease, provided that
Tenant is not in Default of the Lease beyond any applicable cure periods
and further provided that Tenant is in occupancy of at least fifty
percent (50%) of the Premises, Tenant shall have the right but not the
obligation, during the Term to install, maintain and operate the
following satellite dish antennas: 3 satellite dishes not to exceed 1
meter in diameter each or similar rooftop antenna, in any case subject to
Landlord's reasonable consent (not to be unreasonably conditioned or
delayed) as to the size and power of such antenna and the frequency at
which it will receive and/or broadcast (the "Antennas") on the Building's
roof (the "Roof") in a location mutually acceptable to both Landlord and
Tenant (the "Antenna Site"). Tenant may also use the Building's risers,
conduits and towers, subject to Section 6.5 and Landlord's reasonable
requirements for use of such areas, for purposes of installing reasonable
cabling from the Antennas to the Premises in the interior of the
Building. The foregoing rights may be exercised by Tenant without charge
by Landlord. In the event Tenant requires more than 3 satellite dishes or
similar rooftop antennas, Tenant shall pay a fee equal to Landlord's
current rate for similar installations for each additional dish or
antenna.
32.2 RIGHT OF USE/OWNERSHIP OF ANTENNAS.
Landlord shall have the right to use the remainder of the Roof for any
purpose including permitting other tenants in the Building to lease space
on the Roof provided that (i) Tenant continues to have reasonable access
to the Antenna Site and the Antennas, and (ii) any other equipment
installed on the Roof pursuant to leases or other agreements entered into
after the date of this Lease will not block the ability of the Antennas
to send or receive signals or otherwise materially interfere with the
operation or function of such Antennas. The foregoing shall be subject to
Landlord's right to provide wireless telecommunications services to the
Building.
32.3 INSTALLATION, MAINTENANCE, OPERATION AND REMOVAL OF THE ANTENNAS.
Tenant shall install and maintain the Antennas and related cabling at its
expense. Tenant shall have access to the Antenna Site at all times,
subject to any reasonable restrictions of Landlord. The installation of
the Antennas shall be completed in a workmanlike manner and in accordance
with all applicable Laws. Tenant shall install the Antennas using
non-penetrating roof mounts. Tenant shall comply with all floor load
limitations. If the Taxes or insurance premiums for the Building are
increased as a result of the installation or operation of the Antennas on
the Roof, then Tenant shall pay its share of any such increase directly
attributable to such installation or operation upon receipt of adequate
documentation. Tenant shall also maintain insurance on the Antennas and
the Antenna Site pursuant to Section 11.2. At the termination of this
Lease (whether upon the Expiration Date or otherwise) Tenant shall, at
Tenant's sole cost and expense, remove the Antennas and restore the
Antenna Site to its condition prior to installation of the Antennas.
32.4 COMPLIANCE WITH LAWS.
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Tenant shall comply in all material respects with all applicable Laws
governing the installation and operation of the Antennas. Tenant shall be
responsible for obtaining, if required, any building permits and any
licenses or permits required by the Federal Communication Commission, the
Federal Aviation Administration or any other governmental agency having
jurisdiction over the Building. If required by any such governmental
agencies or by Landlord, Tenant shall paint the dish portion of the
Antennas or screen any such Antennas from view, so long as the
functionality of the Antennas is not adversely affected thereby. Landlord
agrees to reasonably assist and cooperate with Tenant to obtain any
appropriate licenses or permits.
32.5 LICENSE.
The privileges granted to Tenant under this Section 32 merely constitute
an easement and shall not be deemed to grant Tenant any leasehold
interest in the Building or any portion thereof. All rights granted to
Tenant pursuant to this Section 32 shall automatically terminate upon the
expiration of this Lease or earlier termination thereof.
33. PRE-COMMENCEMENT EXPANSION OPTION.
Tenant shall have the right to increase the size of the Premises by up to
approximately 100,000 rentable square feet ("Adjustment Area") as
follows:
(a) Any Adjustment Area shall be located on a floor or floors
of the Office Tower that is (are) contiguous to the balance of the
Premises. In addition to the foregoing, any Adjustment Area shall not
create more than one (1) multi-tenant floor. Tenant's designation of the
Adjustment Area shall leave the balance of any remaining area on the
floor on which the Adjustment Area is located in a configuration that is
marketable and reasonably acceptable to Landlord.
(b) Tenant's Base Rent, Tenant's Office Tower Share, and Tenant
Leasehold Improvement Allowance for Tenant Leasehold Improvements all
shall be proportionately increased to reflect the addition of any
Adjustment Area. Tenant's lease of any Adjustment Area shall be subject
to all of the same terms and conditions as set forth in this Lease as
applicable to the balance of the Premises, except as herein otherwise
expressly provided. Tenant shall be permitted to exercise up to four (4)
options with respect to when Tenant notifies Landlord of its intent to
lease all or a portion of the Adjustment Area (collectively "Options").
Notwithstanding the various Options described below and how many, if any,
Options are exercised by Tenant, the total Adjustment Area available to
Tenant shall not exceed four (4) full floors of the Building.
(c) Tenant shall have the option to increase the size of the
Premises by up to four (4) full floors of the Building by giving notice
to Landlord of Tenant's decision to lease such space on or before January
1, 2001 (the "Four Floor Option").
(d) To the extent Tenant has not exercised it option with
respect to subparagraph (c) above, Tenant shall have the option to
increase the size of the Premises
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by up to three (3) full floors of the Building by giving notice to
Landlord of Tenant's decision to lease such space on or before March 1,
2001 (the "Three Floor Option").
(e) To the extent Tenant has not fully exercised its options
with respect to subparagraphs (c) and (d), Tenant shall have the option
to increase the size of the Premises by up to two (2) full floors of the
Building by giving notice to Landlord of Tenant's decision to lease such
space on or before May 1, 2001 (the "Two Floor Option").
(f) To the extent Tenant has not fully exercised its options
with respect to subparagraphs (c), (d) and (e), Tenant shall have the
option to increase the size of the Premises by up to one (1) full floor
of the Building by giving notice to Landlord of Tenant's decision to
lease such space on or before August 1, 2001 (the "One Floor Option").
(g) The Commencement Date of the Term of the Lease with respect
to any Adjustment Area shall be determined in accordance with schedule
attached hereto as Exhibit B-5. Landlord shall not be subject to any of
the delay penalties described in Section 3.3 hereof for Landlord's
failure to deliver any Adjustment Area by the dates provided therein.
(h) Any space on a floor of the Building not leased by Tenant
as part of the Adjustment Area shall be of a shape, size and location
which Landlord, in Landlord's reasonable discretion, considers to be
reasonably marketable. If Landlord determines such space is not
reasonably marketable, Landlord shall notify Tenant within ten (10)
business days of its receipt of Tenant's exercise notice under this
Section 33, and Tenant and Landlord shall thereafter cooperate in good
faith to reconfigure the Adjustment Area so that such remaining space on
such floor not leased by Tenant is reasonably marketable.
34. OPTION TO DEFER DELIVERY.
Tenant shall have the right, at Tenant's sole option, to defer delivery
of up to one (1) full floor of the Premises or the Adjustment Area until
January 1, 2003. Such option must be exercised by Tenant on or before
August 1, 2001. If Tenant exercises such option, then the following
provisions shall apply to the lease of the space for which delivery has
been so deferred (the "Deferred Space"):
(a) The commencement date of the term of the lease of such
Deferred Space shall be January 1, 2003 (such date being herein referred
to as the "Deferred Space Commencement Date"), subject to the provisions
of Section 3.3 of this Lease and provided Landlord provides Tenant with
access to the Deferred Space for construction purposes at least 120 days
prior to said date. Tenant's obligation to pay Rent under this Lease with
respect to the Deferred Space shall commence upon the Deferred Space
Commencement Date.
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(b) Tenant's Leasehold Improvement Allowance for Leasehold
Improvements with respect to such Deferred Space only shall be
Twenty-Five and 57/100 Dollars ($25.57) per rentable square foot of such
Deferred Space.
(c) The Deferred Space must be wholly contiguous unto itself.
(d) From and after the Deferred Space Commencement Date,
Tenant's lease of the Deferred Space shall be in accordance with all of
the terms and conditions of this Lease as then and thereafter in effect
(e) If Landlord has not completed Tenant's Leasehold
Improvements to the Deferred Space, Tenant will complete Tenant's
Leasehold Improvements pursuant to plans and specifications approved by
Landlord (which approval shall not be unreasonably withheld, conditioned
or delayed) and the provisions of Section 9.1 of this Lease.
35. STORAGE SPACE.
Provided this Lease is in full force and effect and no Default remains
uncured beyond any applicable notice and cure period, Tenant shall have
the option of leasing up to 880 rentable square feet of storage space
("Storage Space") in the Building pursuant to a separate license
agreement for a term coterminous with this Lease. The rental rate for
such storage space shall be $15.00 per rentable square foot of Storage
Space for the first Lease Year, with such rental rate increasing three
percent (3%) per Lease Year thereafter.
36. SUPPLEMENTAL LEASEHOLD IMPROVEMENT ALLOWANCE.
Landlord hereby grants Tenant the option to receive a supplemental
leasehold improvement allowance (hereinafter referred to as the
"Supplemental Tenant Leasehold Allowance") in an amount up to FIVE
HUNDRED THOUSAND NO/100 DOLLARS ($500,000.00). The Supplemental Leasehold
Improvement Allowance shall be paid by Landlord to Tenant in the same
manner, and subject to the same conditions, as provided for the payment
or application of the Tenant Leasehold Improvement Allowance. Upon
written request from Tenant, Landlord shall advance such Supplemental
Leasehold Improvement Allowance (or such amount thereof so requested)
prior to the thirtieth (30th) day after the date of such request. Tenant
hereby agrees to pay to Landlord, without offset, deduction or
counterclaim of any kind, except as otherwise expressly provided in this
Lease, a monthly amount of Rent sufficient to repay to Landlord the
Supplemental Leasehold Improvement Allowance advanced to or on behalf of
Tenant in its entirety, together with simple interest at the rate of
twelve percent (12%) per annum on the unpaid balance thereof outstanding
from time to time (hereinafter referred to as the "Supplemental
Improvement Rent"). The Supplemental Improvement Rent shall be due and
payable in equal installments on the first day of each month commencing
on the first (1st) day of the first calendar month beginning on or after
the Commencement Date, through and including August 1, 2011. For example,
if Tenant receives disbursement of the entire Supplemental Leasehold
Improvement Allowance and the Commencement Date is September 1, 2001, the
monthly installment of the
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Supplemental Improvement Rent due each month as aforesaid shall be
$17,102.52. Failure by Tenant to pay any monthly installment of the
Supplemental Improvement Rent shall be deemed, for purposes of this
Lease, as a failure to pay Rent due under this Lease.
37. Y2K COMPLIANCE.
Landlord shall be responsible for Year 2000 compliance of all services
furnished by Landlord to Tenant pursuant to this Lease. If Landlord
obtains actual knowledge that any of those services are not Year 2000
compliant, Landlord shall promptly take such measures as are appropriate
to cause those services to become Year 2000 compliant, but Landlord shall
have no obligations with respect to any failure of its services that
arise because third party systems not under its control are not Year 2000
compliant.
38. LEASING RESTRICTIONS.
Landlord hereby agrees that, during the Term of this Lease, any other
space leased by Landlord to third party tenants in the Building shall not
be used for (i) the offices or business of a federal, state or local
governmental or quasi-governmental bureau, department or agency; or (ii)
the conduct or maintenance of any gambling or gaming activities or any
political activities or any club activities, or a school (other than
training of tenant's employees, customers or vendors in the ordinary
course of any such tenant's business) or employment or placement agency
(other than as conducted in the ordinary course of a tenant's business).
39. DINING FACILITY.
During the Term of this Lease, including any renewal or extension terms,
provided that (i) Tenant is not in default of any of the terms or
conditions of this Lease, and (ii) either Tenant, or its Permitted
Transferee, is in occupancy of at least 85% of the Premises or total
occupancy of the Building is at least fifty percent (50%), Landlord shall
use commercially reasonable efforts to lease not less than 1,500 rentable
square feet in the Building to a food vendor. "Commercially reasonable
efforts" shall mean, without limitation, that Landlord shall not be
required to accept less than a market rent for a sandwich shop as
provided in other first class (Class A) office buildings in the Buckhead,
Atlanta, Georgia market area, or provide greater than market incentives
or concessions provided to similar tenants in such market area, nor shall
Landlord be required to accept a tenant with inadequate credit or
operational skills. Landlord shall not be responsible for the quality of
such tenant's operation.
40. HEALTHCLUB
Landlord agrees to provide a Health Club facility in the Office Tower at
no charge (except as an Expense) during the Term of this Lease,
commencing on the Commencement Date. The type of Health Club facilities
furnished will be consistent with an exercise room containing
approximately 3,000 square feet with men's and women's restrooms
containing showers and lockers and containing certain equipment which may
be utilized for individual workouts.
41. CONSENTS AND APPROVALS.
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Wherever in this Lease Landlord or Tenant has agreed not to unreasonably
delay its consent or approval, such party shall be deemed to have
consented or approved to such matter submitted to it for its consent or
approval if such party fails to grant or withhold such consent or
approval by notice to the other party within fifteen (15) days after such
request for consent or approval is received from the other party.
42. UNRESTRICTED SUPPLEMENTAL ALLOWANCE
On the Commencement Date, Landlord shall pay to Tenant a supplemental
allowance, in addition to any other allowance provided for in this Lease,
in the amount of TWO HUNDRED TWENTY-FIVE THOUSAND AND NO/100 DOLLARS
($225,000.00), which Tenant may use for any purpose. If such supplemental
allowance is not paid in full to Tenant on the Commencement Date, Tenant
shall have its offset rights under Section 21.2 with respect to any
delinquent amount and interest thereon from the Commencement Date at the
rate prescribed in Section 4.4
--Signatures appear on following page--
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Having read and intending to be bound by the terms and provisions of this
Lease, Landlord and Tenant have signed it as of the Date.
TENANT: LANDLORD:
SECURITY FIRST TECHNOLOGIES, SOLANO ASSOCIATES, a California
INC., a Kentucky corporation limited partnership
By: TrizecHahn Centers Inc., a
California corporation
By: /s/ DH Drechsel By: /s/ Robert R. Stubbs
------------------------------- ---------------------
Name: DH Drechsel Name: Robert R. Stubbs
-------------------------------
Title: COO Title: Assistant Secretary
-----------------------------
By: /s/ Robert Stockwell By: /s/ Antonio A. Bismonte
---------------------- -------------------------
Name: Robert Stockwell Name: Antonio A. Bismonte
------------------------------
Title: CFO Title: Senior Vice President
-----------------------------
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STATE OF Georgia )
---------------------
) .ss.
COUNTY OF Fulton )
---------------------
This Lease Agreement was acknowledged before me this 18th day of Feb. , 2000, by
Daniel H. Drechsel as COO and Robert F. Stockwell as CFO of Security First
Technologies, Inc. .
WITNESS my hand and official seal.
Miclene A. DiAntonio
Notary Public, Fulton County, Georgia
My Commission Expires April 30, 2003
/s/Miclene A. DiAntonio
--------------------------
Notary Public
My commission expires: 8-30-03 .
-----------------
STATE OF GEORGIA )
) ss.
COUNTY OF FULTON )
This Lease Agreement was acknowledged before me this 23rd day of
February , 2000 by Robert R. Stubbs as Assistant Secretary of
TrizecHahn Centers Inc.
WITNESS my hand and official seal.
/s/Heather M. Crain
--------------------------
Notary Public
Notary Public, Cherokee County, Georgia
My commission expires: My Commission Expires Mar. 17, 2003.
-----------------------------------
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STATE OF ILLINOIS )
) ss.
COUNTY OF COOK )
This Lease Agreement was acknowledged before me this 24th day of
February, 2000 by Antonio A. Bismonte as Senior Vice President of
TrizecHahn Centers Inc.
WITNESS my hand and official seal.
/s/ Peggy Sue Hennig
--------------------------
Notary Public
OFFICIAL SEAL
PEGGY SUE HENNIG
Notary Public, State of Illinois
My commission expires: My Comission Expires 1-13-02
----------------------------------
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