EXHIBIT 10.50
00 XXXXXXXXX XXXXXX XXXX
XXXXXXX, XXXXXXX
OFFICE LEASE AGREEMENT
BETWEEN
EOP-PERIMETER CENTER, L.L.C., a Delaware limited liability company
("LANDLORD")
AND
INTERLIANT, INC., a Delaware corporation
("TENANT")
TABLE OF CONTENTS
I. Basic Lease Information.................................... 1
II. Lease Grant................................................ 3
III. Possession................................................. 3
IV. Rent....................................................... 3
V. Compliance with Laws; Use.................................. 7
VI. Security Deposit........................................... 7
VII. Services to be Furnished by Landlord....................... 8
VIII. Leasehold Improvements..................................... 8
IX. Repairs and Alterations.................................... 9
X. Use of Electrical Services by Tenant....................... 10
XI. Entry by Landlord.......................................... 11
XII. Assignment and Subletting.................................. 11
XIII. Liens...................................................... 12
XIV. Indemnity and Waiver of Claims............................. 12
XV. Insurance.................................................. 13
XVI. Subrogation................................................ 13
XVII. Casualty Damage............................................ 14
XVIII. Condemnation............................................... 14
XIX. Events of Default.......................................... 15
XX. Remedies................................................... 15
XXI. Limitation of Liability.................................... 16
XXII. No Waiver.................................................. 16
XXIII. Quiet Enjoyment............................................ 17
XXIV. Relocation. [intentionally omitted]........................ 17
XXV. Holding Over............................................... 17
XXVI. Subordination to Mortgages; Estoppel Certificate........... 17
XXVII. Attorneys' Fees............................................ 18
XXVIII. Notice..................................................... 18
XXIX. Excepted Rights............................................ 18
XXX. Surrender of Premises...................................... 18
XXXI. Miscellaneous.............................................. 19
XXXII. Entire Agreement........................................... 20
OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (the "Lease") is made and entered into as
of the 11th day of February, 2000, by and between EOP-PERIMETER CENTER, L.L.C.,
a Delaware limited liability company ("Landlord") and INTERLIANT, Inc., a
Delaware corporation ("Tenant").
I. Basic Lease Information.
A. "Building" shall mean the building located at 00 Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, commonly known as 66 Perimeter
Center East.
B. "Rentable Square Footage of the Building" is deemed to be
173,475 square feet.
C. "Premises" shall mean the area shown on Exhibit A to this
Lease. The Premises are located on floor 8 and known as suite
number 800. The "Rentable Square Footage of the Premises" is
deemed to be 20,929 square feet. If the Premises include one
or more floors in their entirety, all corridors and restroom
facilities located on such full floor(s) shall be considered
part of the Premises. Landlord and Tenant stipulate and agree
that the Rentable Square Footage of the Building and the
Rentable Square Footage of the Premises are correct and shall
not be remeasured.
D. "Base Rent":
Approximate
Annual Rate Annual Monthly
Period Per Square Foot* Base Rent Base Rent
------ ---------------- --------- ---------
5/15/00-5/31/00 $20.35 $35,492.10**
6/01/00-5/31/01 $20.35 $425,905.20 $35,492.10
6/01/01-5/31/02 $20.96 $438,671.88 $36,555.99
6/01/02-5/31/03 $21.59 $451,857.12 $37,654.76
6/01/03-5/31/04 $22.24 $465,460.92 $38,788.41
6/01/04-5/31/05 $22.90 $479,274.12 $39,939.51
6/01/05-4/30/06 $23.59 $493,715.16 $41,142.93
5/01/06-5/14/06 $23.59 $41,142.93
*Rounded to nearest cent
**The monthly Base Rent for any partial calendar month at the beginning
or ending of the Term shall be appropriately prorated to reflect such
partial calendar month.
E. "Tenant's Pro Rata Share": 12.0646%
F. "Base Year" for Taxes: 2000; "Base Year" for Expenses: 2000.
G. "Term": The Term shall commence on May 15, 2000 (the
"Commencement Date") and, unless terminated early in
accordance with this Lease, end on May 14, 2006 (the
"Termination Date"). The occurrence of the Commencement Date
shall not be conditioned upon the performance of any work by
Landlord.
H. Tenant allowance: $256,380.25, as more fully described and
provided for in Section 7 of the Work Letter attached hereto
as Exhibit D.
I. "Security Deposit": $250,000, subject to decrease and increase
as hereinafter provided.
J. "Guarantor(s)": None.
K. "Broker(s)": The Xxxxxx Company.
L. "Permitted Use": general office use.
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M. "Notice Addresses":
Tenant:
On and after the Commencement Date, notices shall be sent to
Tenant at the Premises. Prior to the Commencement Date,
notices shall be sent to Tenant at the following address:
INTERLIANT, INC.
00 Xxxxxxxxx Xxxxxx Xxxx
Xxxxx X-000
Xxxxxxx, Xxxxxxx 00000
Phone #:___________________________
Fax #:_____________________________
In both cases with a copy to:
INTERLIANT, INC.
0 Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: General Counsel
Landlord: With a copy to:
EOP-PERIMETER CENTER, L.L.C. Equity Office Properties
c/o Equity Office Properties Two North Riverside Plaza
70 Perimeter Center East Suite 2200
Suite 7016 Chicago, Illinois 60606
Xxxxxxx, Xxxxxxx 00000 Attention: Regional Counsel
Attention: Property Manager, - Southeast
Group II
Rent (defined in Section IV.A) is payable to the order of Equity
Office Properties at the following address:
EOP OPERATING LIMITED PARTNERSHIP
as agent for EOP-PERIMETER CENTER, L.L.C.-GROUP II
X.X. Xxx 000000
Xxxxxxx, Xxxxxxx 00000-0000
N. "Business Day(s)" are Monday through Friday of each week, exclusive
of New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day ("Holidays"). Landlord may
designate additional Holidays, provided that the additional
Holidays are commonly recognized by other office buildings in the
area where the Building is located.
O. [intentionally omitted]
P. "Law(s)" means all applicable statutes, codes, ordinances, orders,
rules and regulations of any municipal or governmental entity.
Q. "Normal Business Hours" for the Building are 8:00 A.M. to 6:00 P.M.
on Business Days and 8:00 A.M. to 1:00 P.M. on Saturdays.
Notwithstanding the foregoing Normal Business Hours, subject to
Landlord's rules, regulations and procedures for after-hours access
to the Building, Tenant shall have twenty-four (24) hours per day
365 days per year access to the Premises.
R. "Property" means the Building and the parcel(s) of land on which it
is located and, at Landlord's discretion, the Building garage and
other improvements serving the Building, if any, and the parcel(s)
of land on which they are located.
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II. Lease Grant.
Landlord leases the Premises to Tenant and Tenant leases the Premises
from Landlord, together with the right in common with others to use any portions
of the Property that are designated by Landlord for the common use of tenants
and others, such as sidewalks, unreserved parking areas, common corridors,
elevator foyers, restrooms, vending areas and lobby areas (the "Common Areas").
III. Possession.
A. Upon execution and delivery of this Lease by both Landlord and
Tenant, Landlord shall deliver possession of the Premises to Tenant
for the sole purpose of Tenant performing improvements or
installing furniture, equipment or other personal property therein
in accordance with the terms and conditions of this Lease.
B. Subject to Landlord's obligations under Section IX.B., the Premises
are accepted by Tenant in "as is" condition and configuration. By
taking possession of the Premises, Tenant agrees that the Premises
are in good order and satisfactory condition, and that there are no
representations or warranties by Landlord regarding the condition
of the Premises or the Building. The Commencement Date shall be
postponed until the date Landlord delivers possession of the
Premises to Tenant free from occupancy by any party, and the
Termination Date, at the option of Landlord, may be postponed by an
equal number of days.
C. If Tenant takes possession of the Premises before the Commencement
Date, such possession shall be subject to the terms and conditions
of this Lease and Tenant shall pay Rent (defined in Section IV.A.)
to Landlord for each day of possession before the Commencement
Date. However, except for the cost of services requested by Tenant
(e.g. freight elevator usage), Tenant shall not be required to pay
Rent for any days of possession before the Commencement Date during
which Tenant, with the approval of Landlord, is in possession of
the Premises for the sole purpose of performing improvements or
installing furniture, equipment or other personal property.
IV. Rent.
A. Payments. As consideration for this Lease, Tenant shall pay
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Landlord, without any setoff or deduction, the total amount of Base
Rent and Additional Rent due for the Term. "Additional Rent" means
all sums (exclusive of Base Rent) that Tenant is required to pay
Landlord. Additional Rent and Base Rent are sometimes collectively
referred to as "Rent." Tenant shall pay and be liable for all
rental, sales and use taxes (but excluding income taxes), if any,
imposed upon or measured by Rent under applicable Law. Base Rent
and recurring monthly charges of Additional Rent shall be due and
payable in advance on the first day of each calendar month without
notice or demand, provided that the installment of Base Rent for
the first full calendar month of the Term shall be payable upon the
execution of this Lease by Tenant. All other items of Rent shall be
due and payable by Tenant on or before 30 days after billing by
Landlord. All payments of Rent shall be by good and sufficient
check or by other means (such as automatic debit or electronic
transfer) acceptable to Landlord. If Tenant fails to pay any item
or installment of Rent when due, Tenant shall pay Landlord an
administration fee equal to 5% of the past due Rent, provided that
Tenant shall be entitled to a grace period of 7 days for the first
2 late payments of Rent in a given calendar year. If the Term
commences on a day other than the first day of a calendar month or
terminates on a day other than the last day of a calendar month,
the monthly Base Rent and Tenant's Pro Rata Share of any Tax Excess
(defined in Section IV.B.) or Expense Excess (defined in Section
IV.B.) for the month shall be prorated based on the number of days
in such calendar month. Landlord's acceptance of less than the
correct amount of Rent shall be considered a payment on account of
the earliest Rent due. No endorsement or statement on a check or
letter accompanying a check or payment shall be considered an
accord and satisfaction, and either party may accept the check or
payment without prejudice to that party's right to recover the
balance or pursue other available remedies. Tenant's covenant to
pay Rent is independent of every other covenant in this Lease.
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B. Expense Excess and Tax Excess. Tenant shall pay Tenant's Pro Rata
-----------------------------
Share of the amount, if any, by which Expenses (defined in Section
IV.C.) for each calendar year during the Term exceed Expenses for
the Base Year (the "Expense Excess") and also the amount, if any,
by which Taxes (defined in Section IV.D.) for each calendar year
during the Term exceed Taxes for the Base Year (the "Tax Excess").
If Expenses and/or Taxes in any calendar year decrease below the
amount of Expenses and/or Taxes for the Base Year, Tenant's Pro
Rata Share of Expenses and/or Taxes, as the case may be, for that
calendar year shall be $0. Landlord shall provide Tenant with a
good faith estimate of the Expense Excess and of the Tax Excess for
each calendar year during the Term. On or before the first day of
each month, Tenant shall pay to Landlord a monthly installment
equal to one-twelfth of Tenant's Pro Rata Share of Landlord's
estimate of the Expense Excess and one-twelfth of Tenant's Pro Rata
Share of Landlord's estimate of the Tax Excess. If Landlord
determines that its good faith estimate of the Expense Excess or of
the Tax Excess was incorrect by a material amount, Landlord may
provide Tenant with a revised estimate. After its receipt of the
revised estimate, Tenant's monthly payments shall be based upon the
revised estimate. If Landlord does not provide Tenant with an
estimate of the Expense Excess or of the Tax Excess by January 1 of
a calendar year, Tenant shall continue to pay monthly installments
based on the previous year's estimate(s) until Landlord provides
Tenant with the new estimate. Upon delivery of the new estimate, an
adjustment shall be made for any month for which Tenant paid
monthly installments based on the previous year's estimate(s).
Tenant shall pay Landlord the amount of any underpayment within 30
days after receipt of the new estimate. Any overpayment shall be
refunded to Tenant within 30 days or credited against the next due
future installment(s) of Additional Rent.
As soon as is practical following the end of each calendar year,
Landlord shall furnish Tenant with a statement of the actual
Expenses and Expense Excess and the actual Taxes and Tax Excess for
the prior calendar year. If the estimated Expense Excess and/or
estimated Tax Excess for the prior calendar year is more than the
actual Expense Excess and/or actual Tax Excess, as the case may be,
for the prior calendar year, Landlord shall apply any overpayment
by Tenant against Additional Rent due or next becoming due,
provided if the Term expires before the determination of the
overpayment, Landlord shall refund any overpayment to Tenant after
first deducting the amount of Rent due. If the estimated Expense
Excess and/or estimated Tax Excess for the prior calendar year is
less than the actual Expense Excess and/or actual Tax Excess, as
the case may be, for such prior year, Tenant shall pay Landlord,
within 30 days after its receipt of the statement of Expenses
and/or Taxes, any underpayment for the prior calendar year.
C. Expenses Defined. "Expenses" means all costs and expenses
-----------------
incurred in each calendar year in connection with operating,
maintaining, repairing, and managing the Building and the Property,
including, but not limited to:
1. Labor costs, including, wages, salaries, social security and
employment taxes, medical and other types of insurance,
uniforms, training, and retirement and pension plans.
2. Management fees, the cost of equipping and maintaining a
management office, accounting and bookkeeping services, legal
fees not attributable to leasing or collection activity, and
other administrative costs. Landlord, by itself or through an
affiliate, shall have the right to directly perform or provide
any services under this Lease (including management services),
provided that the cost of any such services shall not exceed
the cost that would have been incurred had Landlord entered
into an arms-length contract for such services with an
unaffiliated entity of comparable skill and experience.
3. The cost of services, including amounts paid to service
providers and the rental and purchase cost of parts, supplies,
tools and equipment, to the extent reasonably allocable to the
Building and Property.
4. Premiums and deductibles paid by Landlord for insurance,
including workers compensation, fire and extended coverage,
earthquake, general liability, rental loss,
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elevator, boiler and other insurance customarily carried from
time to time by owners of comparable office buildings.
5. Electrical Costs (defined below) and charges for water, gas,
steam and sewer, but excluding those charges for which
Landlord is reimbursed by tenants. "Electrical Costs" means:
(a) charges paid by Landlord for electricity; (b) costs
incurred in connection with an energy management program for
the Property; and (c) if and to the extent permitted by Law, a
fee for the services provided by Landlord in connection with
the selection of utility companies and the negotiation and
administration of contracts for electricity, provided that
such fee shall not exceed 50% of any savings obtained by
Landlord. Electrical Costs shall be adjusted as follows: (i)
amounts received by Landlord as reimbursement for above
standard electrical consumption shall be deducted from
Electrical Costs; (ii) the cost of electricity incurred to
provide overtime HVAC to specific tenants (as reasonably
estimated by Landlord) shall be deducted from Electrical
Costs; and (iii) if Tenant is billed directly for the cost of
building standard electricity to the Premises as a separate
charge in addition to Base Rent, the cost of electricity to
individual tenant spaces in the Building shall be deducted
from Electrical Costs.
6. The amortized cost of capital improvements (as distinguished
from replacement parts or components installed in the ordinary
course of business) made to the Property which are: (a)
performed primarily to reduce operating expense costs or
otherwise improve the operating efficiency of the Property; or
(b) required to comply with any Laws that are enacted, or
first interpreted to apply to the Property, after the date of
this Lease. The cost of capital improvements shall be
amortized by Landlord over the Payback Period (defined below).
The amortized cost of capital improvements may, at Landlord's
option, include actual or imputed interest at the rate that
Landlord would reasonably be required to pay to finance the
cost of the capital improvement. "Payback Period" means the
useful life of the capital improvement as reasonably estimated
by Landlord, but in no event longer than ten (10) years.
If Landlord incurs Expenses for the Property together with one or
more other buildings or properties, whether pursuant to a
reciprocal easement agreement, common area agreement or otherwise,
the shared costs and expenses shall be equitably prorated and
apportioned between the Property and the other buildings or
properties. Expenses shall not include: the cost of capital
improvements (except as set forth above); depreciation; interest
(except as provided above for the amortization of capital
improvements); principal payments of mortgage and other
non-operating debts of Landlord; the cost of repairs or other work
to the extent Landlord is reimbursed by insurance or condemnation
proceeds; costs in connection with leasing space in the Building,
including brokerage commissions; lease concessions, including
rental abatements and construction allowances, granted to specific
tenants; costs incurred in connection with the sale, financing or
refinancing of the Building; fines, interest and penalties incurred
due to the late payment of Taxes (defined in Section IV.D) or
Expenses; organizational expenses associated with the creation and
operation of the entity which constitutes Landlord; any penalties
or damages that Landlord pays to Tenant under this Lease or to
other tenants in the Building under their respective leases;
overhead and profit increment paid to subsidiaries or other
affiliates of Landlord for services on or to the Property, Building
and/or Premises to the extent only that the costs of such services
exceed the competitive cost for such services rendered by persons
or entities of similar skill, competence and experience; or the
cost of correcting any existing (as of the date of this Lease)
violations of any existing Laws applicable to the Property. If the
Building is not at least 95% occupied during any calendar year or
if Landlord is not supplying services to at least 95% of the total
Rentable Square Footage of the Building at any time during a
calendar year, Expenses shall, at Landlord's option, be determined
as if the Building had been 95% occupied and Landlord had been
supplying services to 95% of the Rentable Square Footage of the
Building during that calendar year. If Tenant pays for its Pro Rata
Share of Expenses based on increases over a "Base Year" and
Expenses for a calendar year are determined as provided in the
prior sentence, Expenses for the Base Year shall also be determined
as if the Building had been 95% occupied and Landlord had been
supplying services to 95% of the Rentable Square Footage of the
Building. The extrapolation of Expenses under this Section shall be
performed by appropriately
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adjusting the cost of those components of Expenses that are
impacted by changes in the occupancy of the Building.
D. Taxes Defined. "Taxes" shall mean: (1) all real estate taxes and
-------------
other assessments on the Building and/or Property, including, but
not limited to, assessments for special improvement districts and
building improvement districts, taxes and assessments levied in
substitution or supplementation in whole or in part of any such
taxes and assessments and the Property's share of any real estate
taxes and assessments under any reciprocal easement agreement,
common area agreement or similar agreement as to the Property; (2)
all personal property taxes for property that is owned by Landlord
and used in connection with the operation, maintenance and repair
of the Property; and (3) all costs and fees incurred in connection
with seeking reductions in any tax liabilities described in (1) and
(2), including, without limitation, any costs incurred by Landlord
for compliance, review and appeal of tax liabilities. Without
limitation, Taxes shall not include any income, capital levy,
franchise, capital stock, gift, estate or inheritance tax. If an
assessment is payable in installments, Taxes for the year shall
include the amount of the installment and any interest due and
payable during that year. For all other real estate taxes, Taxes
for that year shall, at Landlord's election, include either the
amount accrued, assessed or otherwise imposed for the year or the
amount due and payable for that year, provided that Landlord's
election shall be applied consistently throughout the Term. If a
change in Taxes is obtained for any year of the Term during which
Tenant paid Tenant's Pro Rata Share of any Tax Excess, then Taxes
for that year will be retroactively adjusted and Landlord shall
promptly provide Tenant with a credit, if any, based on the
adjustment. Likewise, if a change is obtained for Taxes for the
Base Year, Taxes for the Base Year shall be restated and the Tax
Excess for all subsequent years shall be recomputed. Tenant shall
pay Landlord the amount of Tenant's Pro Rata Share of any such
increase in the Tax Excess within 30 days after Tenant's receipt of
a statement from Landlord.
E. Audit Rights. Tenant may, within 90 days after receiving Landlord's
------------
statement of Expenses, give Landlord written notice ("Review
Notice") that Tenant intends to review Landlord's records of the
Expenses for that calendar year. Within a reasonable time after
receipt of the Review Notice, Landlord shall make all pertinent
records available for inspection that are reasonably necessary for
Tenant to conduct its review. Such pertinent records shall be made
available either at the office of the Building or at another
location in the metropolitan Atlanta, Georgia, area selected by
Landlord. If Tenant retains an agent to review Landlord's records,
the agent must be with a licensed CPA firm. Tenant shall be solely
responsible for all costs, expenses and fees incurred for the
audit. Within 60 days after the records are made available to
Tenant, Tenant shall have the right to give Landlord written notice
(an "Objection Notice") stating in reasonable detail any objection
to Landlord's statement of Expenses for that year. If Tenant fails
to give Landlord an Objection Notice within the 60 day period or
fails to provide Landlord with a Review Notice within the 90 day
period described above, Tenant shall be deemed to have approved
Landlord's statement of Expenses and shall be barred from raising
any claims regarding the Expenses for that year. If Tenant provides
Landlord with a timely Objection Notice, Landlord and Tenant shall
work together in good faith to resolve any issues raised in
Tenant's Objection Notice. If Landlord and Tenant determine that
Expenses for the calendar year are less than reported, Landlord
shall promptly provide Tenant with a credit against the next
installment of Rent in the amount of the overpayment by Tenant.
Likewise, if Landlord and Tenant determine that Expenses for the
calendar year are greater than reported, Tenant shall pay Landlord
the amount of any underpayment within 30 days. In addition, if
Landlord and Tenant determine that Expenses for the year in
question were less than stated by five percent (5%) or more,
Landlord, within thirty (30) days after its receipt of paid
invoices therefor from Tenant, shall reimburse Tenant for any
reasonable amounts paid by Tenant to third parties in connection
with such review by Tenant. The records obtained by Tenant shall be
treated as confidential; provided, however, that the foregoing
shall not prohibit disclosure of such records in connection with
any litigation between Landlord and Tenant regarding Expenses. In
no event shall Tenant be permitted to examine Landlord's records or
to dispute any statement of Expenses unless Tenant has paid and
continues to pay all Rent when due.
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V. Compliance with Laws; Use.
The Premises shall be used only for the Permitted Use and for no other
use whatsoever. Tenant shall not use or permit the use of the Premises for any
purpose which is illegal, dangerous to persons or property or which, in
Landlord's reasonable opinion, unreasonably disturbs any other tenants of the
Building or interferes with the operation of the Building. Tenant shall comply
with all Laws, including the Americans with Disabilities Act, regarding the
operation of Tenant's business and the use, condition, configuration and
occupancy of the Premises. Landlord shall be responsible for correcting any
violations of applicable building, fire or life saftey codes in the Common Areas
of the Building, including, without limitation, requirements of Title III of the
Americans With Disabilities Act. Notwithstanding the foregoing, Expenses shall
not include the cost of correcting existing (as of the date of this Lease) the
violations of Laws applicable to the Property. Additionally, notwithstanding the
foregoing, Landlord shall have the right to contest any alleged violation in
good faith, including, without limitation, the right to apply for and obtain a
waiver or deferment of compliance, the right to assert any and all defenses
allowed by law and the right to appeal any decisions, judgments or rulings to
the fullest extent permitted by law. Landlord, after the exhaustion of any and
all rights to appeal or contest, will make all repairs, additions, alterations
or improvements necessary to comply with the terms of any final order or
judgment. Tenant, within 10 days after receipt, shall provide Landlord with
copies of any notices it receives regarding a violation or alleged violation of
any Laws. Tenant shall comply with the rules and regulations of the Building
attached as Exhibit B and such other reasonable rules and regulations adopted by
Landlord from time to time for the Building. Tenant shall also cause its agents,
contractors, subcontractors, employees, customers, and subtenants to comply with
all rules and regulations. Landlord shall not knowingly discriminate against
Tenant in Landlord's enforcement of the rules and regulations.
VI. Security Deposit.
The Security Deposit shall be delivered to Landlord upon the execution
of this Lease by Tenant and shall be held by Landlord without liability for
interest (unless required by Law) as security for the performance of Tenant's
obligations. The Security Deposit is not an advance payment of Rent or a measure
of Tenant's liability for damages. Landlord may, from time to time, without
prejudice to any other remedy, use all or a portion of the Security Deposit to
satisfy past due Rent or to cure any uncured default by Tenant. If Landlord uses
the Security Deposit, Tenant shall within five (5) days after demand restore the
Security Deposit to its original amount. Landlord shall return any unapplied
portion of the Security Deposit to Tenant within 30 days after the later to
occur of: (1) the determination of Tenant's Pro Rata Share of any Tax Excess and
Expense Excess for the final year of the Term (Landlord shall, however, retain
only a portion of the Security Deposit equal to Landlord's good faith estimate
of any unreconciled Expenses as of the expiration or earlier termination of this
Lease); (2) the date Tenant surrenders possession of the Premises to Landlord in
accordance with this Lease; or (3) the Termination Date. If Landlord transfers
its interest in the Premises, Landlord shall assign the Security Deposit to, or
otherwise credit, the transferee and, following the assignment or credit,
Landlord shall have no further liability for the return of the Security Deposit.
Landlord shall not be required to keep the Security Deposit separate from its
other accounts. The Letter of Credit is subject to increase as provided under
Section I.C. of the Workletter attached hereto as Exhibit D.
The Security Deposit may be in the form of an irrevocable letter of
credit (the "Letter of Credit"), which Letter of Credit shall: (a) be in the
amount of $250,000.00; (b) be issued on the form attached hereto as Exhibit F;
(c) name Landlord as its beneficiary; (d) be drawn on an FDIC insured financial
institution satisfactory to the Landlord; and (e) expire no earlier than sixty
(60) days after the Termination Date of this Lease. Notwithstanding anything
herein to the contrary, provided Tenant is not in default under this Lease as of
the effective date of any reduction of the Security Deposit, and has not been in
monetary or material non-monetary default for the twelve (12) consecutive month
period prior to such effective date, Tenant shall have the right to reduce the
amount of the Security Deposit (i.e., the Letter of Credit) to be as follows:
(i) $200,000.00 effective as of the first (1st) anniversary of the Commencement
Date; (ii) $150,000.00 effective as of the second (2nd) anniversary of the
Commencement Date; (iii) $100,000.00 effective as of the third (3rd) anniversary
of the Commencement Date; and (iv) $50,000.00 effective as of the fourth (4th)
anniversary of the Commencement Date. Such reduction shall be accomplished by
having Tenant provide Landlord with a substitute letter of credit in the reduced
amount.
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VII. Services to be Furnished by Landlord.
A. Landlord agrees to furnish Tenant with the following services: (1)
Water service for use in the lavatories on each floor on which the
Premises are located and for the kitchen pantry area located in the
Premises as approved and constructed under the Workletter; (2) Heat
and air conditioning in season during Normal Business Hours, at
such temperatures and in such amounts as are standard for
comparable buildings or as required by governmental authority.
Tenant, upon such advance notice as is reasonably required by
Landlord, shall have the right to receive HVAC service during hours
other than Normal Business Hours. Tenant shall pay Landlord the
standard charge for the additional service as reasonably determined
by Landlord from time to time. As of the date hereof, Landlord's
charge for after hours HVAC service is $28.68 per hour per floor;
(3) Maintenance and repair of the Property as described in Section
IX.B.; (4) Janitor service on Business Days, which janitor services
shall be consistent with services provided in other similar class
buildings in the Perimeter Center area in Atlanta, Georgia. If
Tenant's use, floor covering or other improvements require special
janitorial services in excess of the standard services for the
Building, Tenant shall pay the additional cost attributable to the
special services; (5) Elevator service; (6) Electricity to the
Premises for general office use, in accordance with and subject to
the terms and conditions in Article X; and (7) such other services
as Landlord reasonably determines are necessary or appropriate for
the Property.
B. Landlord's failure to furnish, or any interruption or termination
of, services due to the application of Laws, the failure of any
equipment, the performance of repairs, improvements or alterations,
or the occurrence of any event or cause beyond the reasonable
control of Landlord (a "Service Failure") shall not render Landlord
liable to Tenant, constitute a constructive eviction of Tenant,
give rise to an abatement of Rent, nor relieve Tenant from the
obligation to fulfill any covenant or agreement. However, if the
Premises, or a material portion of the Premises, is made
untenantable for a period in excess of 3 consecutive Business Days
as a result of the Service Failure, then Tenant, as its sole
remedy, shall be entitled to receive an abatement of Rent payable
hereunder during the period beginning on the 4th consecutive
Business Day of the Service Failure and ending on the day the
service has been restored. If the entire Premises has not been
rendered untenantable by the Service Failure, the amount of
abatement that Tenant is entitled to receive shall be prorated
based upon the percentage of the Premises rendered untenantable and
not used by Tenant. In no event, however, shall Landlord be liable
to Tenant for any loss or damage, including the theft of Tenant's
Property (defined in Article XV), arising out of or in connection
with the failure of any security services, personnel or equipment.
VIII. Leasehold Improvements.
All improvements to the Premises (collectively, "Leasehold
Improvements") shall be owned by Landlord and shall remain upon the Premises
without compensation to Tenant. However, Landlord, by written notice to Tenant
within 30 days prior to the Termination Date, may require Tenant to remove, at
Tenant's expense: (1) Cable (defined in Section IX.A) installed by or for the
exclusive benefit of Tenant and located in the Premises or other portions of the
Building; and (2) any Leasehold Improvements that are performed by or for the
benefit of Tenant and, in Landlord's reasonable judgment, are of a nature that
would require removal and repair costs that are materially in excess of the
removal and repair costs associated with standard office improvements
(collectively referred to as "Required Removables"). Without limitation, it is
agreed that Required Removables include internal stairways, raised floors,
personal baths and showers, vaults, rolling file systems and structural
alterations and modifications of any type. Notwithstanding the foregoing, Tenant
may request in writing at the time it submits its plans and specifications for
Leasehold Improvements, that Landlord advise Tenant whether Landlord will
require Tenant to remove, at the termination of this Lease or Tenant's right to
possession hereunder, such Leasehold Improvements, or any particular portion
thereof, and Landlord shall advise Tenant within ten (10) days after receipt of
Tenant's request as to whether Landlord will require removal; provided, however,
Landlord shall have the right to require Tenant to remove any vault or stairway
installed in the Premises, regardless of whether Landlord timely notified Tenant
that it would require such removal; provided further, however, in any event
Tenant shall remove any raised floor installed in the Premises.
The Required Removables designated by Landlord shall be removed by
Tenant before the Termination Date, provided that upon prior written notice to
Landlord, Tenant may remain in the
8
Premises for up to 5 days after the Termination Date for the sole purpose of
removing the Required Removables, but in no event shall any such holdover in the
Premises constitute or create a tenancy-at-will under existing applicable law.
Tenant's possession of the Premises shall be subject to all of the terms and
conditions of this Lease, including the obligation to pay Rent on a per diem
basis at the rate in effect for the last month of the Term. Tenant shall repair
damage caused by the installation or removal of Required Removables. If Tenant
fails to remove any Required Removables or perform related repairs in a timely
manner, Landlord, at Tenant's expense, may remove and dispose of the Required
Removables and perform the required repairs. Tenant, within 30 days after
receipt of an invoice, shall reimburse Landlord for the reasonable costs
incurred by Landlord.
IX. Repairs and Alterations.
A. Tenant's Repair Obligations. Tenant shall, at its sole cost and
---------------------------
expense, promptly perform all maintenance and repairs to the
Premises that are not Landlord's express responsibility under this
Lease, and shall keep the Premises in good condition and repair,
reasonable wear and tear excepted. Tenant's repair obligations
include, without limitation, repairs to: (1) floor covering; (2)
interior partitions; (3) doors; (4) the interior side of demising
walls; (5) electronic, phone and data cabling and related equipment
(collectively, "Cable") that is installed by or for the exclusive
benefit of Tenant and located in the Premises or other portions of
the Building; (6) supplemental air conditioning units, private
showers and kitchens, including hot water heaters, plumbing, and
similar facilities serving Tenant exclusively; and (7) Alterations
performed by contractors retained by Tenant, including related HVAC
balancing. Tenant shall not be responsible for any structural
alterations or repairs to the Premises, unless such structural
alterations or repairs are required as a result of any use of the
Premises by Tenant other than the Permitted Use, caused by the
negligence or wilful misconduct of Tenant or breach of this Lease
by Tenant, required under Section V above or required as a result
of any Leasehold Improvements under Section VIII above. All work
shall be performed in accordance with the rules and procedures
described in Section IX.C. below. If Tenant fails to make any
repairs to the Premises for more than 15 days after notice from
Landlord (although notice shall not be required if there is an
emergency), Landlord may make the repairs, and Tenant shall pay the
reasonable cost of the repairs to Landlord within 30 days after
receipt of an invoice, together with an administrative charge in an
amount equal to 10% of the cost of the repairs.
B. Landlord's Repair Obligations. Landlord shall keep and maintain in
-----------------------------
good repair and working order and make repairs to and perform
maintenance upon: (1) structural elements of the Building; (2)
mechanical (including HVAC), electrical, plumbing and fire/life
safety systems serving the Building in general; (3) Common Areas
(including, without limitation, the Parking Areas); (4) the roof of
the Building; (5) exterior windows of the Building; and (6)
elevators serving the Building. Landlord shall promptly make
repairs (considering the nature and urgency of the repair) for
which Landlord is responsible.
C. Alterations. Tenant shall not make alterations, additions or
-----------
improvements to the Premises or install any Cable in the Premises
or other portions of the Building (collectively referred to as
"Alterations") without first obtaining the written consent of
Landlord in each instance, which consent shall not be unreasonably
withheld, conditioned or delayed. However, Landlord's consent shall
not be required for any Alteration that satisfies all of the
following criteria (a "Cosmetic Alteration"): (1) is of a cosmetic
nature such as painting, wallpapering, hanging pictures and
installing carpeting; (2) is not visible from the exterior of the
Premises or Building; (3) will not affect the systems or structure
of the Building; and (4) does not require work to be performed
inside the walls or above the ceiling of the Premises. However,
even though consent is not required, the performance of Cosmetic
Alterations shall be subject to all the other provisions of this
Section IX.C. Prior to starting work, Tenant shall furnish Landlord
with plans and specifications reasonably acceptable to Landlord;
names of contractors reasonably acceptable to Landlord (provided
that Landlord may designate specific contractors with respect to
Building systems); copies of contracts; necessary permits and
approvals; evidence of contractor's and subcontractor's insurance
in amounts reasonably required by Landlord; and any security for
performance that is reasonably required by Landlord. Changes to the
plans and specifications must also be submitted
9
to Landlord for its approval. Alterations shall be constructed in a
good and workmanlike manner using materials of a quality that is at
least equal to the quality designated by Landlord as the minimum
standard for the Building. Landlord may designate reasonable rules,
regulations and procedures for the performance of work in the
Building and, to the extent reasonably necessary to avoid
disruption to the occupants of the Building, shall have the right
to designate the time when Alterations may be performed. Tenant
shall reimburse Landlord within 30 days after receipt of an invoice
for sums paid by Landlord for third party examination of Tenant's
plans for non-Cosmetic Alterations. In addition, within 30 days
after receipt of an invoice from Landlord, Tenant shall pay
Landlord a fee for Landlord's oversight and coordination of any
non-Cosmetic Alterations equal to 4% of the cost of the non-
Cosmetic Alterations. Landlord and Tenant acknowledge and agree
that the foregoing 4% fee is not applicable to the Initial
Alterations in the Premises contemplated by the Workletter, but,
instead, as more fully provided under the Workletter, Tenant shall
pay Landlord a fixed fee of $7,500.00 in connection with such
Initial Alterations. Upon completion, Tenant shall furnish "as-
built" plans (except for Cosmetic Alterations), completion
affidavits, full and final waivers of lien and receipted bills
covering all labor and materials. Tenant shall assure that the
Alterations comply with all insurance requirements and Laws.
Landlord's approval of an Alteration shall not be a representation
by Landlord that the Alteration complies with applicable Laws or
will be adequate for Tenant's use.
X. Use of Electrical Services by Tenant.
A. Electricity used by Tenant in the Premises shall, at Landlord's
option, be paid for by Tenant either: (1) through inclusion in
Expenses (except as provided in Section X.B. for excess usage); (2)
by a separate charge payable by Tenant to Landlord within 30 days
after billing by Landlord; or (3) by separate charge billed by the
applicable utility company and payable directly by Tenant.
Electrical service to the Premises may be furnished by one or more
companies providing electrical generation, transmission and
distribution services, and the cost of electricity may consist of
several different components or separate charges for such services,
such as generation, distribution and stranded cost charges.
Landlord shall have the exclusive right to select any company
providing electrical service to the Premises, to aggregate the
electrical service for the Property and Premises with other
buildings, to purchase electricity through a broker and/or buyers
group and to change the providers and manner of purchasing
electricity. Landlord shall be entitled to receive a fee (if
permitted by Law) for the selection of utility companies and the
negotiation and administration of contracts for electricity,
provided that the amount of such fee shall not exceed 50% of any
savings obtained by Landlord.
B. Tenant's use of electrical service shall not exceed, either in
voltage, rated capacity, use beyond Normal Business Hours or
overall load, that which Landlord deems to be standard for the
Building. For purposes hereof, the electrical "standard" for the
Building is: (a) a design load of 3.5 xxxxx per square foot of net
usable floor area for all building standard overhead lighting
located within the Premises which requires a voltage of 277/480
volts; and (b) a connected load of 1.45 xxxxx per square foot of
net usable area for receptacles and incandescent lighting within
the Premises which requires a voltage of 120/208 volts single phase
or less. If Tenant requests permission to consume excess electrical
service, Landlord may refuse to consent or may condition consent
upon conditions that Landlord reasonably elects (including, without
limitation, the installation of utility service upgrades, meters,
submeters, air handlers or cooling units), and the additional usage
(to the extent permitted by Law), installation and maintenance
costs shall be paid by Tenant. Without limiting the generality of
the effect of the foregoing, all supplemental heating, ventilating
and air conditioning units in the Premises shall be separately
metered by Tenant, at Tenant's cost, and Tenant shall be
responsible for the cost of all energy consumed by such
supplemental units. The rate charged by Landlord for the additional
usage shall not exceed that which would be charged by Georgia Power
Company, or its successors, if Tenant were a direct retail customer
thereof, based upon the tariffs on file with the Georgia Public
Service Commission. Landlord shall have the right to separately
meter electrical usage for the Premises and to measure electrical
usage by survey or other commonly accepted methods.
10
XI. Entry by Landlord.
Landlord, its agents, contractors and representatives may enter the
Premises to inspect or show the Premises, to clean and make repairs, alterations
or additions to the Premises, and to conduct or facilitate repairs, alterations
or additions to any portion of the Building, including other tenants' premises.
Except in emergencies or to provide janitorial and other Building services after
Normal Business Hours, Landlord shall provide Tenant with reasonable prior
notice of entry into the Premises, which may be given orally to the entity
occupying the Premises. If reasonably necessary for the protection and safety of
Tenant and its employees, Landlord shall have the right to temporarily close all
or a portion of the Premises to perform repairs, alterations and additions.
However, except in emergencies, Landlord will not close the Premises if the work
can reasonably be completed on weekends and after Normal Business Hours. Entry
by Landlord shall not constitute constructive eviction or entitle Tenant to an
abatement or reduction of Rent.
XII. Assignment and Subletting.
A. Except in connection with a Permitted Transfer (defined in Section
XII.E. below), Tenant shall not assign, sublease, transfer or
encumber any interest in this Lease or allow any third party to use
any portion of the Premises (collectively or individually, a
"Transfer") without the prior written consent of Landlord, which
consent shall not be unreasonably withheld if Landlord does not
elect to exercise its termination rights under Section XII.B below.
Without limitation, it is agreed that Landlord's consent shall not
be considered unreasonably withheld if: (1) the proposed
transferee's financial condition does not meet the criteria
Landlord uses to select Building tenants having similar leasehold
obligations; (2) the proposed transferee's business is not suitable
for the Building considering the business of the other tenants and
the Building's prestige, or would result in a violation of another
tenant's rights; (3) the proposed transferee is a governmental
agency or occupant of the Building; (4) Tenant is in default after
the expiration of the notice and cure periods in this Lease; or (5)
any portion of the Building or Premises would likely become subject
to additional or different Laws as a consequence of the proposed
Transfer. Tenant shall not be entitled to receive monetary damages
based upon a claim that Landlord unreasonably withheld its consent
to a proposed Transfer and Tenant's sole remedy shall be an action
to enforce any such provision through specific performance or
declaratory judgment. Any attempted Transfer in violation of this
Article shall, at Landlord's option, be void. Consent by Landlord
to one or more Transfer(s) shall not operate as a waiver of
Landlord's rights to approve any subsequent Transfers. In no event
shall any Transfer or Permitted Transfer release or relieve Tenant
from any obligation under this Lease.
B. As part of its request for Landlord's consent to a Transfer, Tenant
shall provide Landlord with financial statements for the proposed
transferee, a complete copy of the proposed assignment, sublease
and other contractual documents and such other information as
Landlord may reasonably request. Landlord shall, by written notice
to Tenant within 30 days of its receipt of the required information
and documentation, either: (1) consent to the Transfer by the
execution of a consent agreement in a form reasonably designated by
Landlord or reasonably refuse to consent to the Transfer in
writing; or (2) exercise its right to terminate this Lease with
respect to the portion of the Premises that Tenant is proposing to
assign or sublet. Any such termination shall be effective on the
proposed effective date of the Transfer for which Tenant requested
consent. Notwithstanding the foregoing, Tenant, within five (5)
days after receipt of Landlord's notice of intent to terminate, may
withdraw its request for consent to the Transfer. In such event,
Landlord's election to terminate the Lease shall be null and void
and of no force and effect. Tenant shall pay Landlord a review fee
of $750.00 for Landlord's review of any Permitted Transfer or
requested Transfer.
C. Tenant shall pay Landlord 50% of all rent and other consideration
which Tenant receives as a result of a Transfer that is in excess
of the Rent payable to Landlord for the portion of the Premises and
Term covered by the Transfer. Tenant shall pay Landlord for
Landlord's share of any excess within 30 days after Tenant's
receipt of such excess consideration. Tenant may deduct from the
excess all reasonable and customary expenses directly incurred by
Tenant attributable to the Transfer (other than Landlord's review
fee), including brokerage fees, legal fees and construction costs.
If Tenant is in Monetary Default (defined in Section XIX.A. below),
Landlord may require that all
11
sublease payments be made directly to Landlord, in which case
Tenant shall receive a credit against Rent in the amount of any
payments received (less Landlord's share of any excess). However,
by accepting any such payments directly from the subtenant, whether
as a result of the foregoing or otherwise, Landlord does not waive
any claims against the Tenant hereunder or release Tenant from any
obligations under this Lease, nor recognize the subtenant as the
tenant under the Lease.
D. Except as provided below with respect to a Permitted Transfer, if
Tenant is a corporation, limited liability company, partnership, or
similar entity, and if the entity which owns or controls a majority
of the voting shares/rights at any time changes for any reason
(including but not limited to a merger, consolidation or
reorganization), such change of ownership or control shall
constitute a Transfer. The foregoing shall not apply so long as
Tenant is an entity whose outstanding stock is listed on a
recognized security exchange, or if at least 80% of its voting
stock is owned by another entity, the voting stock of which is so
listed.
E. Tenant may assign its entire interest under this Lease to (1) a
successor to Tenant by purchase, merger, consolidation or
reorganization, or (2) a parent, subsidiary or affiliate of Tenant,
without the consent of Landlord (a "Permitted Transfer"), provided
that all of the following conditions are satisfied: (a) Tenant is
not in monetary or material non-monetary default under this Lease;
(b) with respect to a Permitted Transfer under (1) above, Tenant's
successor shall own all or substantially all of the capital stock
or assets of Tenant; (c) Tenant's successor shall have a net worth
which is at least equal to the greater of Tenant's net worth at the
date of this Lease or Tenant's net worth as of the day prior to the
proposed purchase, merger, consolidation or reorganization; (d) the
proposed use by the transferee of any Permitted Transfer is a
Permitted Use; and (e) Tenant shall give Landlord written notice no
later than 10 days after the effective date of the Permitted
Transfer. Tenant's notice to Landlord shall include information and
documentation showing that each of the above conditions has been
satisfied. If requested by Landlord, Tenant's successor shall sign
a commercially reasonable form of assumption agreement. As used
herein: (a) "parent" shall mean a company which owns a majority of
Tenant's voting equity; (b) "subsidiary" shall mean an entity
wholly owned by Tenant or at least fifty-one percent (51%) of whose
voting equity is owned by Tenant; and (c) "affiliate" shall mean an
entity controlled, controlling or under common control with Tenant.
XIII. Liens.
Tenant shall not permit mechanic's or other liens to be placed upon the
Property, Premises or Tenant's leasehold interest in connection with any work or
service done or purportedly done by or for benefit of Tenant or Tenant's
subtenant. If a lien is so placed, Tenant shall, within 30 days after the date
Tenant becomes aware of the filing of the lien or within 30 days of notice from
Landlord of the filing of the lien, whichever is first, fully discharge the lien
by settling the claim which resulted in the lien or by bonding or insuring over
the lien in the manner prescribed by the applicable lien Law. Unless Landlord
gave Tenant notice of the lien, Tenant shall promptly give Landlord notice of
the lien after becoming aware of same. If Tenant fails to discharge the lien,
then, in addition to any other right or remedy of Landlord, Landlord may bond or
insure over the lien or otherwise discharge the lien. Tenant shall reimburse
Landlord for any amount paid by Landlord to bond or insure over the lien or
discharge the lien, including, without limitation, reasonable attorneys' fees
(if and to the extent permitted by Law) within 30 days after receipt of an
invoice from Landlord.
XIV. Indemnity and Waiver of Claims.
A. Except to the extent caused by the negligence or willful misconduct
of Landlord or any Landlord Related Parties (defined below) and
except to the extent caused by Landlord's failure to satisfy its
maintenance and repair obligations under Section IX.B above, Tenant
shall indemnify, defend and hold Landlord, its trustees, members,
principals, beneficiaries, partners, officers, directors,
employees, Mortgagee(s) (defined in Article XXVI) and agents
("Landlord Related Parties") harmless against and from all
liabilities, obligations, damages, penalties, claims, actions,
costs, charges and expenses, including, without limitation,
reasonable attorneys' fees and other professional fees (if and to
the extent permitted by Law), which may be imposed upon, incurred
by or
12
asserted against Landlord or any of the Landlord Related Parties
and arising out of or in connection with any damage or injury
occurring in the Premises or any acts or omissions (including
violations of Law) of Tenant, the Tenant Related Parties (defined
below) or any of Tenant's transferees, contractors or licensees.
B. Except to the extent caused by the negligence or willful misconduct
of Tenant or any Tenant Related Parties (defined below), Landlord
shall indemnify, defend and hold Tenant, its trustees, members,
principals, beneficiaries, partners, officers, directors, employees
and agents ("Tenant Related Parties") harmless against and from all
liabilities, obligations, damages, penalties, claims, actions,
costs, charges and expenses, including, without limitation,
reasonable attorneys' fees and other professional fees (if and to
the extent permitted by Law), which may be imposed upon, incurred
by or asserted against Tenant or any of the Tenant Related Parties
and arising out of or in connection with the acts or omissions
(including violations of Law) of Landlord, the Landlord Related
Parties or any of Landlord's contractors.
C. Landlord and the Landlord Related Parties shall not be liable for,
and Tenant waives, all claims for loss or damage to Tenant's
business or loss, theft or damage to Tenant's Property or the
property of any person claiming by, through or under Tenant
resulting from: (1) wind or weather; (2) the failure of any
sprinkler, heating or air-conditioning equipment, any electric
wiring or any gas, water or steam pipes; (3) the backing up of any
sewer pipe or downspout; (4) the bursting, leaking or running of
any tank, water closet, drain or other pipe; (5) water, snow or ice
upon or coming through the roof, skylight, stairs, doorways,
windows, walks or any other place upon or near the Building; (6)
any act or omission of any party other than Landlord or Landlord
Related Parties; and (7) any causes not reasonably within the
control of Landlord. Tenant shall insure itself against such losses
under Article XV below.
D Notwithstanding the foregoing, in the event of a conflict between
the terms of this Article XIV and the terms of Article XVII below,
in the event of fire or other casualty, the terms of Article XVII
below shall control.
XV. Insurance.
Tenant shall carry and maintain the following insurance ("Tenant's
Insurance"), at its sole cost and expense: (1) Commercial General Liability
Insurance applicable to the Premises and its appurtenances providing, on an
occurrence basis, a minimum combined single limit of $2,000,000.00; (2) All Risk
Property/Business Interruption Insurance, including flood and earthquake,
written at replacement cost value and with a replacement cost endorsement
covering all of Tenant's trade fixtures, equipment, furniture and other personal
property within the Premises ("Tenant's Property"); (3) Workers' Compensation
Insurance as required by the state in which the Premises is located and in
amounts as may be required by applicable statute; and (4) Employers Liability
Coverage of at least $1,000,000.00 per occurrence. Any company writing any of
Tenant's Insurance shall have an A.M. Best rating of not less than A-VIII. All
Commercial General Liability Insurance policies shall name Tenant as a named
insured and Landlord (or any successor), Equity Office Properties Trust, a
Maryland real estate investment trust, EOP Operating Limited Partnership, a
Delaware limited partnership, and their respective members, principals,
beneficiaries, partners, officers, directors, employees, agents, and other
designees of Landlord (including Metropolitan Life Insurance Company, as
mortgagee), as the interest of such designees shall appear, as additional
insureds. All policies of Tenant's Insurance shall contain endorsements that the
insurer(s) shall give Landlord and its designees at least 30 days' advance
written notice of any change, cancellation, termination or lapse of insurance.
Tenant shall provide Landlord with a certificate of insurance evidencing
Tenant's Insurance prior to the earlier to occur of the Commencement Date or the
date Tenant is provided with possession of the Premises for any reason, and upon
renewals at least 15 days prior to the expiration of the insurance coverage.
Landlord shall maintain so called All Risk property insurance on the Building at
replacement cost value, as reasonably estimated by Landlord. Except as
specifically provided to the contrary, the limits of either party's' insurance
shall not limit such party's liability under this Lease.
XVI. Subrogation.
Notwithstanding anything in this Lease to the contrary, Landlord and
Tenant hereby waive and shall cause their respective insurance carriers to waive
any and all rights of recovery, claim,
13
actions or causes of action arising out of the negligence of Landlord or any
Landlord Related Parties or the negligence of Tenant or any Tenant Related
Parties, which loss or damage is (or would have been, had the insurance required
by this Lease been carried) covered by insurance.
XVII. Casualty Damage.
A. If all or any part of the Premises is damaged by fire or other
casualty, Tenant shall immediately notify Landlord in writing.
During any period of time that all or a material portion of the
Premises is rendered untenantable as a result of a fire or other
casualty, the Rent shall xxxxx for the portion of the Premises that
is untenantable and not used by Tenant. Landlord shall have the
right to terminate this Lease if: (1) the Building shall be damaged
so that, in Landlord's reasonable judgment, substantial alteration
or reconstruction of the Building shall be required (whether or not
the Premises has been damaged); (2) Landlord is not permitted by
Law to rebuild the Building in substantially the same form as
existed before the fire or casualty; (3) the Premises have been
materially damaged and there is less than 2 years of the Term
remaining on the date of the casualty; (4) any Mortgagee requires
that the insurance proceeds be applied to the payment of the
mortgage debt; or (5) a material uninsured loss to the Building
occurs. Landlord may exercise its right to terminate this Lease by
notifying Tenant in writing within 60 days after the date of the
casualty. If Landlord does not terminate this Lease, Landlord shall
commence and proceed with reasonable diligence to repair and
restore the Building and the Leasehold Improvements (excluding any
Alterations that were performed by Tenant in violation of this
Lease). However, in no event shall Landlord be required to spend
more than the insurance proceeds received by Landlord. Landlord
shall not be liable for any loss or damage to Tenant's Property or
to the business of Tenant resulting in any way from the fire or
other casualty or from the repair and restoration of the damage.
Landlord and Tenant hereby waive the provisions of any Law relating
to the matters addressed in this Article, and agree that their
respective rights for damage to or destruction of the Premises
shall be those specifically provided in this Lease.
B. If all or any portion of the Premises shall be made untenantable by
fire or other casualty, Landlord shall, with reasonable promptness,
cause an architect or general contractor selected by Landlord to
provide Landlord and Tenant with a written estimate of the amount
of time required to substantially complete the repair and
restoration of the Premises and make the Premises tenantable again,
using standard working methods ("Completion Estimate"). If the
Completion Estimate indicates that the Premises cannot be made
tenantable within 270 days from the date of the casualty, then
regardless of anything in Section XVII.A above to the contrary,
either party shall have the right to terminate this Lease by giving
written notice to the other of such election within 10 days after
receipt of the Completion Estimate. Tenant, however, shall not have
the right to terminate this Lease if the fire or casualty was
caused by the negligence or intentional misconduct of Tenant,
Tenant Related Parties or any of Tenant's transferees, contractors
or licensees. In addition to the foregoing rights to terminate,
Tenant shall have the right to terminate this Lease if: (1) a
substantial portion of the Premises has been damaged by fire or
other casualty and such damage cannot reasonably be repaired within
sixty (60) days after the date of such fire or other casualty; (2)
there is less than one (1) year of the Term remaining on the date
of such casualty; (3) the casualty was not caused by the negligence
ro willful misconduct of Tenant or its agents, employees or
contractors; and (4) Tenant provides Landlord with written notice
of its intent to terminate within thirty (30) days after the date
of the fire or other casualty.
XVIII. Condemnation.
Either party may terminate this Lease if the whole or any material part
of the Premises shall be taken or condemned for any public or quasi-public use
under Law, by eminent domain or private purchase in lieu thereof (a "Taking").
Landlord shall also have the right to terminate this Lease if there is a Taking
of any portion of the Building or Property which would leave the remainder of
the
14
Building unsuitable for use as an office building in a manner comparable to
the Building's use prior to the Taking. In order to exercise its right to
terminate the Lease, Landlord or Tenant, as the case may be, must provide
written notice of termination to the other within 45 days after the terminating
party first receives notice of the Taking. Any such termination shall be
effective as of the date the physical taking of the Premises or the portion of
the Building or Property occurs. If this Lease is not terminated, the Rentable
Square Footage of the Building, the Rentable Square Footage of the Premises and
Tenant's Pro Rata Share shall, if applicable, be appropriately adjusted. In
addition, Rent for any portion of the Premises taken or condemned shall be
abated during the unexpired Term of this Lease effective when the physical
taking of the portion of the Premises occurs. All compensation awarded for a
Taking, or sale proceeds, shall be the property of Landlord, any right to
receive compensation or proceeds being expressly waived by Tenant. However,
Tenant may file a separate claim at its sole cost and expense for Tenant's
Property and Tenant's reasonable relocation expenses, provided the filing of the
claim does not diminish the award which would otherwise be receivable by
Landlord.
XIX. Events of Default.
Tenant shall be considered to be in default of this Lease upon the
occurrence of any of the following events of default:
A. Tenant's failure to pay when due all or any portion of the Rent, if
the failure continues for 5 days after written notice to Tenant
("Monetary Default").
B. Tenant's failure (other than a Monetary Default) to comply with any
term, provision or covenant of this Lease, if the failure is not
cured within 20 days after written notice to Tenant. However, if
Tenant's failure to comply cannot reasonably be cured within 20
days, Tenant shall be allowed additional time (not to exceed 120
days) as is reasonably necessary to cure the failure so long as:
(1) Tenant commences to cure the failure within 20 days, and (2)
Tenant diligently pursues a course of action that will cure the
failure and bring Tenant back into compliance with the Lease.
However, if Tenant's failure to comply creates a hazardous
condition, the failure must be cured immediately upon notice to
Tenant. In addition, if Landlord provides Tenant with notice of
Tenant's failure to comply with any particular term, provision or
covenant of the Lease on 3 occasions during any 12 month period,
Tenant's subsequent violation of such term, provision or covenant
shall, at Landlord's option, be an incurable event of default by
Tenant.
C. Tenant or any Guarantor becomes insolvent, makes a transfer in
fraud of creditors or makes an assignment for the benefit of
creditors, or admits in writing its inability to pay its debts when
due.
D. The leasehold estate is taken by process or operation of Law.
E. In the case of any ground floor or retail Tenant, Tenant does not
take possession of, or abandons or vacates all or any portion of
the Premises.
F. Tenant is in default beyond any notice and cure period under any
other lease or agreement with Landlord, including, without
limitation, any lease or agreement for parking.
XX. Remedies.
A. Upon any default, Landlord shall have the right without notice or
demand (except as provided in Article XIX) to pursue any of its
rights and remedies at Law or in equity, including any one or more
of the following remedies:
1. Terminate this Lease, in which case Tenant shall immediately
surrender the Premises to Landlord. If Tenant fails to surrender
the Premises, Landlord may, in compliance with applicable Law
and without prejudice to any other right or remedy, enter upon
and take possession of the Premises and expel and remove Tenant,
Tenant's Property and any party occupying all or any part of the
Premises. Tenant shall pay Landlord on demand the amount of all
past due Rent and other losses and damages which Landlord may
suffer as a result of Tenant's default, whether by Landlord's
inability to relet the Premises on satisfactory terms or
otherwise,
15
including, without limitation, all Costs of Reletting
(defined below) and any deficiency that may arise from reletting
or the failure to relet the Premises. "Costs of Reletting" shall
include all costs and expenses incurred by Landlord in reletting
or attempting to relet the Premises, including, without
limitation, reasonable legal fees, brokerage commissions, the
cost of alterations and the value of other concessions or
allowances granted to a new tenant.
2. Terminate Tenant's right to possession of the Premises and, in
compliance with applicable Law, expel and remove Tenant,
Tenant's Property and any parties occupying all or any part of
the Premises. Landlord may (but shall not be obligated to) relet
all or any part of the Premises, without notice to Tenant, for a
term that may be greater or less than the balance of the Term
and on such conditions (which may include concessions, free rent
and alterations of the Premises) and for such uses as Landlord
in its absolute discretion shall determine. Landlord may collect
and receive all rents and other income from the reletting.
Tenant shall pay Landlord on demand all past due Rent, all Costs
of Reletting and any deficiency arising from the reletting or
failure to relet the Premises. Landlord shall not be responsible
or liable for the failure to relet all or any part of the
Premises or for the failure to collect any Rent. The re-entry or
taking of possession of the Premises shall not be construed as
an election by Landlord to terminate this Lease unless a written
notice of termination is given to Tenant.
3. In lieu of calculating damages under Sections XX.A.1 or XX.A.2
above, Landlord may elect to receive as damages the sum of (a)
all Rent accrued through the date of termination of this Lease
or Tenant's right to possession, and (b) an amount equal to the
total Rent that Tenant would have been required to pay for the
remainder of the Term discounted to present value at the Prime
Rate (defined in Section XX.B. below) then in effect, minus the
then present fair rental value of the Premises for the remainder
of the Term, similarly discounted, after deducting all
anticipated Costs of Reletting.
B. Unless expressly provided otherwise in this Lease, the repossession
or re-entering of all or any part of the Premises shall not relieve
Tenant of its liabilities and obligations under the Lease. No right
or remedy of Landlord shall be exclusive of any other right or
remedy. Each right and remedy shall be cumulative and in addition
to any other right and remedy now or subsequently available to
Landlord at Law or in equity. If Landlord declares Tenant to be in
default, Landlord shall be entitled to receive interest on any
unpaid item of Rent at a rate equal to the Prime Rate plus 4% per
annum. For purposes hereof, the "Prime Rate" shall be the per annum
interest rate publicly announced as its prime or base rate by a
federally insured bank selected by Landlord in the state in which
the Building is located. Forbearance by Landlord to enforce one or
more remedies shall not constitute a waiver of any default.
XXI. Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) TO TENANT SHALL BE LIMITED
TO THE INTEREST OF LANDLORD IN THE PROPERTY. TENANT SHALL LOOK SOLELY TO
LANDLORD'S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY JUDGMENT OR AWARD
AGAINST LANDLORD. NEITHER LANDLORD NOR ANY LANDLORD RELATED PARTY SHALL BE
PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY. BEFORE FILING SUIT FOR AN
ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE MORTGAGEE(S)
(DEFINED IN ARTICLE XXVI BELOW) WHOM TENANT HAS BEEN NOTIFIED HOLD MORTGAGES
(DEFINED IN ARTICLE XXVI BELOW) ON THE PROPERTY, BUILDING OR PREMISES, NOTICE
AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT.
XXII. No Waiver.
Either party's failure to declare a default immediately upon its
occurrence, or delay in taking action for a default shall not constitute a
waiver of the default, nor shall it constitute an estoppel. Either party's
failure to enforce its rights
16
for a default shall not constitute a waiver of its rights regarding any
subsequent default. Receipt by Landlord of Tenant's keys to the Premises shall
not constitute an acceptance or surrender of the Premises.
XXIII. Quiet Enjoyment.
Tenant shall, and may peacefully have, hold and enjoy the Premises,
subject to the terms of this Lease, provided Tenant pays the Rent and fully
performs all of its covenants and agreements. This covenant and all other
covenants of Landlord shall be binding upon Landlord and its successors only
during its or their respective periods of ownership of the Building, and shall
not be a personal covenant of Landlord or the Landlord Related Parties.
XXIV. Relocation. [intentionally omitted]
XXV. Holding Over.
Except for any permitted occupancy by Tenant under Article VIII, if
Tenant fails to surrender the Premises at the expiration or earlier termination
of this Lease, occupancy of the Premises after the termination or expiration
shall be that of a tenancy at sufferance. Tenant's occupancy of the Premises
during the holdover shall be subject to all the terms and provisions of this
Lease and Tenant shall pay an amount (on a per month basis without reduction for
partial months during the holdover) equal to 150% of the greater of: (1) the sum
of the Base Rent and Additional Rent due for the period immediately preceding
the holdover; or (2) the fair market gross rental for the Premises as reasonably
determined by Landlord. No holdover by Tenant or payment by Tenant after the
expiration or early termination of this Lease shall be construed to extend the
Term, to create a tenancy-at-will under applicable law, or prevent Landlord from
immediate recovery of possession of the Premises by summary proceedings or
otherwise. In addition to the payment of the amounts provided above, if Landlord
is unable to deliver possession of the Premises to a new tenant, or to perform
improvements for a new tenant, as a result of Tenant's holdover and Tenant fails
to vacate the Premises within thirty (30) days after Landlord notifies Tenant of
Landlord's inability to deliver possession, or perform improvements, Tenant
shall be liable to Landlord for all damages, including, without limitation,
consequential damages, that Landlord suffers from the holdover.
XXVI. Subordination to Mortgages; Estoppel Certificate.
A. Subject to Landlord's obligations under Section XXVI.B below,
Tenant accepts this Lease subject and subordinate to any
mortgage(s), deed(s) of trust, ground lease(s) or other lien(s) now
or subsequently arising upon the Premises, the Building or the
Property, and to renewals, modifications, refinancings and
extensions thereof (collectively referred to as a "Mortgage"). The
party having the benefit of a Mortgage shall be referred to as a
"Mortgagee." This clause shall be self-operative, but upon request
from a Mortgagee, Tenant shall execute a commercially reasonable
subordination agreement in favor of the Mortgagee. In lieu of
having the Mortgage be superior to this Lease, a Mortgagee shall
have the right at any time to subordinate its Mortgage to this
Lease. If requested by a successor-in-interest to all or a part of
Landlord's interest in the Lease, Tenant shall, without charge,
attorn to the successor-in-interest. Landlord and Tenant shall
each, within 10 days after receipt of a written request from the
other, execute and deliver an estoppel certificate to those parties
as are reasonably requested by the other (including a Mortgagee or
prospective purchaser). The estoppel certificate shall include a
statement certifying that this Lease is unmodified (except as
identified in the estoppel certificate) and in full force and
effect, describing the dates to which Rent and other charges have
been paid, representing that, to such party's actual knowledge,
there is no default (or stating the nature of the alleged default)
and indicating other matters with respect to the Lease that may
reasonably be requested.
B. Landlord will use reasonable efforts to obtain a non-disturbance,
subordination and attornment agreement in favor of Tenant from the
current and any future Mortgagee on such Mortgagee's then current
standard form of agreement. Landlord's failure to obtain a
non-disturbance, subordination and attornment agreement for Tenant
from the current or any future Mortgagee shall have no effect on
the rights, obligations and liabilities of Landlord and Tenant or
be considered to be a default by Landlord hereunder.
17
XXVII. Attorneys' Fees.
If either party institutes a suit against the other for violation of or
to enforce any covenant or condition of this Lease, or if either party
intervenes in any suit in which the other is a party to enforce or protect its
interest or rights, the prevailing party shall be entitled to all of its costs
and expenses, including, without limitation, reasonable attorneys' fees.
XXVIII. Notice.
If a demand, request, approval, consent or notice (collectively
referred to as a "notice") shall or may be given to either party by the other,
the notice shall be in writing and delivered by hand or sent by registered or
certified mail with return receipt requested, or sent by overnight or same day
courier service at the party's respective Notice Address(es) set forth in
Article I, except that if Tenant has vacated the Premises (or if the Notice
Address for Tenant is other than the Premises, and Tenant has vacated such
address) without providing Landlord a new Notice Address, Landlord may serve
notice in any manner described in this Article or in any other manner permitted
by Law. Each notice shall be deemed to have been received or given on the
earlier to occur of actual delivery (which, in the case of hand delivery, may be
deemed "actually delivered" by posting same on the exterior door of the Premises
or Landlord's management office, as the case may be) or the date on which
delivery is refused, or, if Tenant has vacated the Premises or the other Notice
Address of Tenant without providing a new Notice Address, three (3) days after
notice is deposited in the U.S. mail or with a courier service in the manner
described above. Either party may, at any time, change its Notice Address by
giving the other party written notice of the new address in the manner described
in this Article.
XXIX. Excepted Rights.
This Lease does not grant any rights to light or air over or about the
Building. Landlord excepts and reserves exclusively to itself the use of: (1)
roofs, (2) telephone, electrical and janitorial closets, (3) equipment rooms,
Building risers or similar areas that are used by Landlord for the provision of
Building services, (4) rights to the land and improvements below the floor of
the Premises, (5) the improvements and air rights above the Premises, (6) the
improvements and air rights outside the demising walls of the Premises, and (7)
the areas within the Premises used for the installation of utility lines and
other installations serving occupants of the Building. Landlord has the right to
change the Building's name or address. Landlord also has the right to make such
other changes to the Property and Building as Landlord deems appropriate,
provided the changes do not materially affect Tenant's ability to use the
Premises for the Permitted Use. Landlord shall also have the right (but not the
obligation) to temporarily close the Building if Landlord reasonably determines
that there is an imminent danger of significant damage to the Building or of
personal injury to Landlord's employees or the occupants of the Building. The
circumstances under which Landlord may temporarily close the Building shall
include, without limitation, electrical interruptions, hurricanes and civil
disturbances. A closure of the Building under such circumstances shall not
constitute a constructive eviction nor entitle Tenant to an abatement or
reduction of Rent.
XXX. Surrender of Premises.
At the expiration or earlier termination of this Lease or Tenant's
right of possession, Tenant shall remove Tenant's Property (defined in Article
XV) from the Premises, and quit and surrender the Premises to Landlord, broom
clean, and in good order, condition and repair, ordinary wear and tear excepted.
Tenant shall also be required to remove the Required Removables in accordance
with Article VIII. If Tenant fails to remove any of Tenant's Property within 2
days after the termination of this Lease or of Tenant's right to possession,
Landlord, at Tenant's sole cost and expense, shall be entitled (but not
obligated) to remove and store Tenant's Property without liability to Landlord.
Landlord shall not be responsible for the value, preservation or safekeeping of
Tenant's Property. Tenant shall pay Landlord, upon demand, the expenses and
storage charges incurred for Tenant's Property. In addition, if Tenant fails to
remove Tenant's Property from the Premises or storage, as the case may be,
within 30 days after written notice, Landlord may deem all or any part of
Tenant's Property to be abandoned, and title to Tenant's Property shall be
deemed to be immediately vested in Landlord.
18
XXXI. Miscellaneous.
A. This Lease and the rights and obligations of the parties shall be
interpreted, construed and enforced in accordance with the Laws of
the state in which the Building is located and Landlord and Tenant
hereby irrevocably consent to the jurisdiction and proper venue of
such state. If any term or provision of this Lease shall to any
extent be invalid or unenforceable, the remainder of this Lease
shall not be affected, and each provision of this Lease shall be
valid and enforced to the fullest extent permitted by Law. The
headings and titles to the Articles and Sections of this Lease are
for convenience only and shall have no effect on the interpretation
of any part of the Lease.
B. Tenant shall not record this Lease or any memorandum without
Landlord's prior written consent.
C. Landlord and Tenant hereby waive any right to trial by jury in any
proceeding based upon a breach of this Lease.
D. Whenever a period of time is prescribed for the taking of an action
by Landlord or Tenant, the period of time for the performance of
such action shall be extended by the number of days that the
performance is actually delayed due to strikes, acts of God,
shortages of labor or materials, war, civil disturbances and other
causes beyond the reasonable control of the performing party
("Force Majeure"). However, events of Force Majeure shall not
extend any period of time for the payment of Rent or other sums
payable by either party or any period of time for the written
exercise of an option or right by either party.
E. Landlord shall have the right to transfer and assign, in whole or
in part, all of its rights and obligations under this Lease and in
the Building and/or Property referred to herein, and upon such
transfer Landlord shall be released from any further obligations
hereunder, and Tenant agrees to look solely to the successor in
interest of Landlord for the performance of such obligations.
F. Tenant represents that it has dealt directly with and only with the
Broker as a broker in connection with this Lease. Tenant shall
indemnify and hold Landlord and the Landlord Related Parties
harmless from all claims of any other brokers, agents or finders
claiming to have represented Tenant in connection with this Lease.
Landlord agrees to indemnify and hold Tenant and the Tenant Related
Parties harmless from all claims of any brokers, agents or finders
claiming to have represented Landlord in connection with this
Lease. Landlord agrees to pay a brokerage commission to Broker in
accordance with the terms of a separate written commission
agreement to be entered into by and between Landlord and Broker.
G. Tenant covenants, warrants and represents that: (1) each individual
executing, attesting and/or delivering this Lease on behalf of
Tenant is authorized to do so on behalf of Tenant; (2) this Lease
is binding upon Tenant; and (3) Tenant is duly organized and
legally existing in the state of its organization and is qualified
to do business in the state in which the Premises are located. If
there is more than one Tenant, or if Tenant is comprised of more
than one party or entity, the obligations imposed upon Tenant shall
be joint and several obligations of all the parties and entities.
Notices, payments and agreements given or made by, with or to any
one person or entity shall be deemed to have been given or made by,
with and to all of them.
H. Time is of the essence with respect to payment of Rent and Tenant's
exercise of any expansion, renewal or extension rights granted to
Tenant. This Lease shall create only the relationship of landlord
and tenant between the parties, and not a partnership, joint
venture or any other relationship. This Lease and the covenants and
conditions in this Lease shall inure only to the benefit of and be
binding only upon Landlord and Tenant and their permitted
successors and assigns.
I. The expiration of the Term, whether by lapse of time or otherwise,
shall not relieve either party of any obligations which accrued
prior to or which may continue to accrue after the expiration or
early termination of this Lease. Without limiting the scope of the
prior
19
sentence, it is agreed that Tenant's obligations under
Sections IV.A, IV.B., VIII, XIV, XX, XXV and XXX shall survive the
expiration or early termination of this Lease.
J. Landlord has delivered a copy of this Lease to Tenant for Tenant's
review only, and the delivery of it does not constitute an offer to
Tenant or an option. This Lease shall not be effective against any
party hereto until an original copy of this Lease has been signed
and delivered by such party.
K. All understandings and agreements previously made between the
parties are superseded by this Lease, and neither party is relying
upon any warranty, statement or representation not contained in
this Lease. This Lease may be modified only by a written agreement
signed by Landlord and Tenant.
L. Tenant, within 15 days after request, shall provide Landlord with a
current financial statement and such other information as Landlord
may reasonably request in order to create a "business profile" of
Tenant and determine Tenant's ability to fulfill its obligations
under this Lease. Landlord, however, shall not require Tenant to
provide such information unless Landlord is requested to produce
the information in connection with a proposed financing or sale of
the Building. Upon written request by Tenant, Landlord shall enter
into a commercially reasonable confidentiality agreement covering
any confidential information that is disclosed by Tenant.
M. Tenant has only a usufruct, not subject to purchase or sale, which
may not be assigned by Tenant except as expressly provided in this
Lease.
XXXII. Entire Agreement.
This Lease and the following exhibits and attachments constitute the
entire agreement between the parties and supersede all prior agreements and
understandings related to the Premises, including all lease proposals, letters
of intent and other documents: Exhibit A (Outline and Location of Premises),
Exhibit B (Rules and Regulations), Exhibit D (Work Letter Agreement) Exhibit E
(Additional Provisions), and Exhibit F (Form of Letter of Credit).
[signatures on following page]
20
Landlord and Tenant have executed this Lease as of the day and year
first above written.
LANDLORD:
EOP-PERIMETER CENTER, L.L.C., a Delaware limited
liability company
By: EOP Operating Limited Partnership,
a Delaware limited partnership, its sole
member
By: Equity Office Properties Trust, a
Maryland real estate investment trust,
its managing general partner
By: /s/ Xxxx Xxxxxxx
--------------------------
Name: Xxxx Xxxxxxx
--------------------------
Title: V.P. Leasing
---------------------------
TENANT:
INTERLIANT, INC., a Delaware corporation
By: /s/ Xxxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxxx Xxxxxx
---------------------------
Title: Senior Vice President
---------------------------
21
EXHIBIT A
PREMISES
This Exhibit is attached to and made a part of the Lease dated as of
February 11, 2000, by and between EOP-PERIMETER CENTER, L.L.C. and INTERLIANT,
INC., for space in the Building located at 00 Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxx,
Xxxxxxx.
[GRAPHIC]
A-1
EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to
the Premises, the Building, the parking garage (if any), the Property and the
appurtenances. Capitalized terms have the same meaning as defined in the Lease.
1. Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be obstructed by Tenant or used by Tenant for any
purpose other than ingress and egress to and from the Premises. No
rubbish, litter, trash, or material shall be placed, emptied, or thrown
in those areas. At no time shall Tenant permit Tenant's employees to
loiter in Common Areas or elsewhere about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed in the fixtures or appliances.
Damage resulting to fixtures or appliances by Tenant, its agents,
employees or invitees, shall be paid for by Tenant, and Landlord shall
not be responsible for the damage.
3. No signs, advertisements or notices shall be painted or affixed to
windows, doors or other parts of the Building, except those of such
color, size, style and in such places as are first approved in writing
by Landlord. All tenant identification and suite numbers at the
entrance to the Premises shall be installed by Landlord, at Tenant's
cost and expense, using the standard graphics for the Building. Except
in connection with the hanging of lightweight pictures and wall
decorations, no nails, hooks or screws shall be inserted into any part
of the Premises or Building except by the Building maintenance
personnel.
4. Landlord may provide and maintain in the first floor (main lobby) of
the Building an alphabetical directory board or other directory device
listing tenants, and no other directory shall be permitted unless
previously consented to by Landlord in writing. The name of Tenant and
its suite number shall be listed on such directory board.
5. Tenant shall not place any lock(s) on any door in the Premises or
Building without Landlord's prior written consent and Landlord shall
have the right to retain at all times and to use keys to all locks
within and into the Premises. A reasonable number of keys to the locks
on the entry doors in the Premises shall be furnished by Landlord to
Tenant at Tenant's cost, and Tenant shall not make any duplicate keys.
All keys shall be returned to Landlord at the expiration or early
termination of this Lease.
6. All contractors, contractor's representatives and installation
technicians performing work in the Building shall be subject to
Landlord's prior approval and shall be required to comply with
Landlord's standard rules, regulations, policies and procedures, which
may be revised from time to time.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of merchandise or materials requiring the
use of elevators, stairways, lobby areas or loading dock areas, shall
be restricted to hours designated by Landlord. Tenant shall obtain
Landlord's prior approval by providing a detailed listing of the
activity. If approved by Landlord, the activity shall be under the
supervision of Landlord and performed in the manner required by
Landlord. Tenant shall assume all risk for damage to articles moved and
injury to any persons resulting from the activity. If equipment,
property, or personnel of Landlord or of any other party is damaged or
injured as a result of or in connection with the activity, Tenant shall
be solely liable for any resulting damage or loss.
8. Landlord shall have the right to approve the weight, size, or location
of heavy equipment or articles in and about the Premises. Damage to the
Building by the installation, maintenance, operation, existence or
removal of property of Tenant shall be repaired at Tenant's sole
expense.
9. Corridor doors, when not in use, shall be kept closed.
B-1
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in
any way with other tenants or persons having business with them; (2)
solicit business or distribute, or cause to be distributed, in any
portion of the Building, handbills, promotional materials or other
advertising; or (3) conduct or permit other activities in the Building
that might, in Landlord's sole opinion, constitute a nuisance.
11. No animals, except those assisting handicapped persons, shall be
brought into the Building or kept in or about the Premises.
12. No inflammable, explosive or dangerous fluids or substances shall be
used or kept by Tenant in the Premises, Building or about the Property.
Tenant shall not, without Landlord's prior written consent, use, store,
install, spill, remove, release or dispose of, within or about the
Premises or any other portion of the Property, any asbestos-containing
materials or any solid, liquid or gaseous material now or subsequently
considered toxic or hazardous under the provisions of 42 U.S.C. Section
9601 et seq. or any other applicable environmental Law which may now or
later be in effect. Tenant shall comply with all Laws pertaining to and
governing the use of these materials by Tenant, and shall remain solely
liable for the costs of abatement and removal.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which might injure the reputation or impair the present or
future value of the Premises or the Building. Tenant shall not use, or
permit any part of the Premises to be used, for lodging, sleeping or
for any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts or which would cause a work stoppage, picketing, labor
disruption or dispute, or interfere with Landlord's or any other
tenant's or occupant's business or with the rights and privileges of
any person lawfully in the Building ("Labor Disruption"). Tenant shall
take the actions necessary to resolve the Labor Disruption, and shall
have pickets removed and, at the request of Landlord, immediately
terminate any work in the Premises that gave rise to the Labor
Disruption, until Landlord gives its written consent for the work to
resume. Tenant shall have no claim for damages against Landlord or any
of the Landlord Related Parties, nor shall the date of the commencement
of the Term be extended as a result of the above actions.
15. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, electrical equipment that would overload
the electrical system beyond its capacity for proper, efficient and
safe operation as determined solely by Landlord. Tenant shall not
furnish cooling or heating to the Premises, including, without
limitation, the use of electronic or gas heating devices, without
Landlord's prior written consent. Tenant shall not use more than its
proportionate share of telephone lines and other telecommunication
facilities available to service the Building.
16. Tenant shall not operate or permit to be operated a coin or token
operated vending machine or similar device (including, without
limitation, telephones, lockers, toilets, scales, amusement devices and
machines for sale of beverages, foods, candy, cigarettes and other
goods), except for machines for the exclusive use of Tenant's
employees, and then only if the operation does not violate the lease of
any other tenant in the Building.
17. Bicycles and other vehicles are not permitted inside the Building or on
the walkways outside the Building, except in areas designated by
Landlord.
18. Landlord may from time to time adopt systems and procedures for the
security and safety of the Building, its occupants, entry, use and
contents. Tenant, its agents, employees, contractors, guests and
invitees shall comply with Landlord's systems and procedures.
19. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's sole
opinion may impair the reputation of the Building or its desirability.
Upon written notice from Landlord, Tenant shall refrain from and
discontinue such publicity immediately.
20. Tenant shall not canvass, solicit or peddle in or about the Building or
the Property.
B-2
21. Neither Tenant nor its agents, employees, contractors, guests or
invitees shall smoke or permit smoking in the Common Areas, unless the
Common Areas have been declared a designated smoking area by Landlord,
nor shall the above parties allow smoke from the Premises to emanate
into the Common Areas or any other part of the Building. Landlord shall
have the right to designate the Building (including the Premises) as a
non-smoking building.
22. Landlord shall have the right to designate and approve standard window
coverings for the Premises and to establish rules to assure that the
Building presents a uniform exterior appearance. Tenant shall ensure,
to the extent reasonably practicable, that window coverings are closed
on windows in the Premises while they are exposed to the direct rays of
the sun.
23. Deliveries to and from the Premises shall be made only at the times, in
the areas and through the entrances and exits designated by Landlord.
Tenant shall not make deliveries to or from the Premises in a manner
that might interfere with the use by any other tenant of its premises
or of the Common Areas, any pedestrian use, or any use which is
inconsistent with good business practice.
24. The work of cleaning personnel shall not be hindered by Tenant after
5:30 P.M., and cleaning work may be done at any time when the offices
are vacant. Windows, doors and fixtures may be cleaned at any time.
Tenant shall provide adequate waste and rubbish receptacles to prevent
unreasonable hardship to the cleaning service.
B-3
EXHIBIT C
INTENTIONALLY OMITTED
---------------------
C - 1
EXHIBIT D
WORK LETTER
-----------
This Exhibit is attached to and made a part of the Lease dated as of
February 11, 2000, by and between EOP-PERIMETER CENTER, L.L.C. ("Landlord") and
INTERLIANT, INC. ("Tenant") for space in the Building located at 00 Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx.
I. Alterations and Allowance.
-------------------------
A. Tenant, following the delivery of the Premises by Landlord to
Tenant, the full and final execution and delivery of this Lease
and the delivery by Tenant to Landlord of (i) all prepaid rental
and security deposits required hereunder, (ii) the executed
estoppel certificate dated December 30, 1999, pertaining to the
Sublease (as defined in Section I.A. of Exhibit E attached
hereto), which was previously prepared and delivered by Landlord
to Tenant and (iii) a letter agreement executed by Tenant in form
and substance satisfactory to Landlord transferring the letter of
credit previously delivered by Tenant under the Sublease from
Southern Company Services, Inc., as beneficiary, to Landlord as
beneficiary, shall have the right to perform alterations and
improvements in the Premises (the "Initial Alterations").
Notwithstanding the foregoing, Tenant and its contractors shall
not have the right to perform Initial Alterations in the Premises
unless and until Tenant has complied with all of the terms and
conditions of Article IX.C of this Lease, including, without
limitation, approval by Landlord of the final plans for the
Initial Alterations and the contractors to be retained by Tenant
to perform such Initial Alterations. Landlord hereby pre-approves
the following contractors for the Initial Alterations: Xxxx
Computer Environments, Xxxxx Commercial Contracting and Xxxxxx
Architects. Additionally, subject to review of Tenant's plans and
specifications therefor, Tenant shall have the right to install a
T1 line from the Building's point of demarcation in the phone
room on level G-2 of the Building to the Premises. Tenant shall
be responsible for all elements of the design of Tenant's plans
(including, without limitation, compliance with law,
functionality of design, the structural integrity of the design,
the configuration of the premises and the placement of Tenant's
furniture, appliances and equipment), and Landlord's approval of
Tenant's plans shall in no event relieve Tenant of the
responsibility for such design. Landlord's approval of the
contractors to perform the Initial Alterations shall not be
unreasonably withheld, delayed or conditioned. The parties agree
that Landlord's approval of the general contractor to perform the
Initial Alterations shall not be considered to be unreasonably
withheld if any such general contractor (i) does not have trade
references reasonably acceptable to Landlord, (ii) does not
maintain insurance as required pursuant to the terms of this
Lease, (iii) does not have the ability to be bonded for the
Initial Alterations, (iv) does not provide current financial
statements reasonably acceptable to Landlord, or (v) is not
licensed as a contractor in the state/municipality in which the
Premises is located. Tenant acknowledges the foregoing is not
intended to be an exclusive list of the reasons why Landlord may
reasonably withhold its consent to a general contractor.
Notwithstanding anything contained in the Lease or herein to the
contrary, Tenant shall pay Landlord a fixed fee of $7,500.00 for
Landlord's services in connection with the Initial Alterations,
including, without limitation, review and approval of Tenant's
plans and specifications therefor.
B. Provided Tenant is not in default, Landlord agrees to contribute
the sum of Two Hundred Fifty-Six Thousand Three Hundred Eighty
and 25/100ths Dollars ($256,380.25) (the "Allowance") toward the
cost of performing the Initial Alterations in preparation of
Tenant's occupancy of the Premises, including payment of
Landlord's Fee. The Allowance may only be used for the cost of
preparing design and construction documents and mechanical and
electrical plans for the Initial Alterations (provided, however,
that no more than $20,929.00 of the Allowance may be used for
such costs of preparing design and construction documents and
plans) and for hard costs in connection with the Initial
Alterations, including any permit fees. The Allowance, less a 10%
retainage (which retainage shall be payable as part of the final
draw), shall be paid to Tenant or, at Landlord's option, to the
order of the general contractor that performs the Initial
Alterations, in periodic disbursements within thirty (30) days
after receipt of the following documentation: (i) an application
for payment and sworn statement of
D - 1
contractor substantially in the form of AIA Document G702
covering all work for which disbursement is to be made to a date
specified therein; (ii) a certification from an AIA architect
substantially in the form of the Architect's Certificate for
Payment which is located on AIA Document G702, Application and
Certificate of Payment; (iii) Contractor's, subcontractor's and
material supplier's waivers of liens which shall cover all
Initial Alterations for which disbursement is being requested and
all other statements and forms required for compliance with the
mechanics' lien laws of the State of Georgia, together with all
such invoices, contracts, or other supporting data as Landlord or
Landlord's Mortgagee may reasonably require; (iv) a cost
breakdown for each trade or subcontractor performing the Initial
Alterations for which a disbursement is being requested; (v)
copies of all construction contracts for the Initial Alterations,
together with copies of all change orders, if any; and (vi) a
request to disburse from Tenant containing an approval by Tenant
of the work done and a good faith estimate of the cost to
complete the Initial Alterations. Upon completion of the Initial
Alterations, and prior to final disbursement of the Allowance,
Tenant shall furnish Landlord with: (1) general contractor and
architect's completion affidavits, (2) full and final waivers of
lien, (3) receipted bills covering all labor and materials
expended and used, (4) as-built plans of the Initial Alterations,
and (5) the certification of Tenant and its architect that the
Initial Alterations have been installed in a good and workmanlike
manner in accordance with the approved plans, and in accordance
with applicable laws, codes and ordinances. In no event shall
Landlord be required to disburse the Allowance more than one time
per month. If the Initial Alterations exceed the Allowance,
Tenant shall be entitled to the Allowance in accordance with the
terms hereof, but each individual disbursement of the Allowance
shall be disbursed in the proportion that the Allowance bears to
the total cost for the Initial Alterations, less the 10%
retainage referenced above. Notwithstanding anything herein to
the contrary, Landlord shall not be obligated to disburse any
portion of the Allowance during the continuance of an uncured
monetary or material non-monetary default under the Lease, and
Landlord's obligation to disburse shall only resume when and if
such default is cured.
C. If Tenant has used the entire Allowance as provided herein, then,
prior to expiration of the 6/th/ month of the Term, Tenant,
provided it is not in default under this Lease, shall have the
right to borrow up to One Hundred Sixty-Seven Thousand Four
Hundred Thirty-Two and 00/100ths Dollars ($167,432.00) (the
"Additional Allowance") from Landlord in order to finance
additional hard costs of the Initial Improvements during the
Term. Any Additional Allowance borrowed by Tenant hereunder shall
be repaid to Landlord as Additional Rent in equal monthly
installments throughout the initial Term at an interest rate
equal to eleven percent (11%) per annum. If Tenant is in default
under this Lease after the expiration of applicable cure periods,
the entire unpaid balance of the Additional Allowance borrowed by
Tenant shall become immediately due and payable and, except to
the extent required by applicable law, shall not be subject to
mitigation or reduction in connection with a reletting of the
Premises by Landlord. In the event Tenant elects to borrow all or
any portion of the Additional Allowance hereunder, the Letter of
Credit provided by Tenant under Article VI of the Lease shall be
increased by an amount equal to the Additional Allowance borrowed
by Tenant and each of the amounts set forth in the last sentence
of the second paragraph of Article VI of the Lease (the amounts
to which the Letter of Credit is reduced) shall be increased by
an amount equal to 20% of such Additional Allowance borrowed by
Tenant.
D. In no event shall the Allowance be used for the purchase of
equipment, furniture or other items of personal property of
Tenant. In the event Tenant does not use the entire Allowance
within nine (9) months after the Commencement Date, any unused
amount shall accrue to the sole benefit of Landlord, it being
understood that Tenant shall not be entitled to any credit,
abatement or other concession in connection therewith. Tenant
shall be responsible for all applicable state sales or use taxes,
if any, payable in connection with the Initial Alterations and/or
Allowance.
E. Tenant agrees to accept the Premises in its "as-is" condition and
configuration, it being agreed that Landlord shall not be
required to perform any work or, except as provided above with
respect to the Allowance, incur any costs in connection with the
construction or demolition of any improvements in the Premises.
D - 2
F. This Exhibit shall not be deemed applicable to any additional
space added to the original Premises at any time or from time to
time, whether by any options under the Lease or otherwise, or to
any portion of the original Premises or any additions to the
Premises in the event of a renewal or extension of the original
Term of this Lease, whether by any options under the Lease or
otherwise, unless expressly so provided in the Lease or any
amendment or supplement to the Lease.
D - 3
Landlord and Tenant have executed this exhibit as of the day and year
first above written.
LANDLORD:
EOP-PERIMETER CENTER, L.L.C., a Delaware limited
liability company
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a Maryland
real estate investment trust, its managing
general partner
By: /s/ Xxxx Xxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxxx
------------------------------------------
Title: V.P. Leasing
--------------------------------------------
TENANT:
INTERLIANT, INC., a Delaware corporation
By: /s/ Xxxxxxxx Xxxxxx
----------------------------------------------
Name: Xxxxxxxx Xxxxxx
--------------------------------------------
Title: Senior Vice President
-------------------------------------------
D - 4
EXHIBIT E
ADDITIONAL PROVISIONS
This Exhibit is attached to and made a part of the Lease dated as of
February 11, 2000, by and between EOP-PERIMETER CENTER, L.L.C. ("Landlord") and
INTERLIANT, INC. ("Tenant") for space in the Building located at 00 Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx.
I. TELECOMMUNICATIONS CONDUCT.
A. Definitions.
-----------
1. "Building 64" shall mean the office building owned by
Landlord, located adjacent to the Building and commonly
known as "64 Perimeter Center East" and located at 00
Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx.
2. "Cable", as used in this Section I, shall mean the optical
fibers, co-axial and/or copper wires installed by Tenant
located in the Conduit. The optical fibers, co-axial and/or
copper wires which comprise the Cable shall either be
encased in an aluminum sleeve or other fire retardant
material or placed in an EMT conduit.
3. "Conduit" shall mean a pipe installed by Tenant in the walls
or in the ceiling space of the Xxxxxxxx, Xxxxxxxx 00 and the
walkway area ("Walkway") connecting the Building and
Building 64 for the purposes of containing and protecting
the Cable. The Conduit installed by Tenant shall be no more
than two inches (2") in diameter (unless a greater size is
either specified by Landlord or approved in writing by
Landlord). The location of the Conduit shall be subject to
the prior approval of Landlord.
4. "Sublease" shall mean that certain Sublease Agreement, dated
May 29, 1998, as amended by a First Amendment to Sublease
Agreement dated December 9, 1998, and by a Second Amendment
to Sublease Agreement dated October 31, 1999, between
Landlord (as successor in interest to Southern Company
Services, Inc., the original sublessor) and Tenant, pursuant
to which Tenant occupies certain space in Building 64.
5. "Telecommunications Services" shall mean such
telecommunications services as Tenant may lawfully provide
for its own, internal business purposes to connect its
premises in Building 64 with its Premises hereunder, but
expressly excludes any services of any kind to third parties
(including other tenants).
X. Xxxxx of License.
----------------
1. Subject to and upon the terms herein set forth, Landlord
grants Tenant a non-exclusive license to install, maintain,
operate, repair, replace and remove a Cable in the Conduit
solely for Telecommunications Services and for no other
purposes.
2. Tenant shall not perform its installation or any subsequent
replacement, modification, or enhancement of any Cable or
Conduit without first obtaining Landlord's prior approval,
which approval shall not be unreasonably withheld or
delayed. Prior to such installation, replacement,
modification, or enhancement, Tenant shall submit to
Landlord as part of its installation plan a diagram showing
the placement of the Cable or Conduit, together with a
description of and specifications for same, as Landlord may
reasonably request, and the date and time Tenant expects to
install Cable or Conduit, and such other documents and
information reasonably requested by Landlord. The Cable and
Conduit will be installed in a good and workmanlike manner.
Tenant shall plan its installations, improvements and
alterations so as to minimize construction activities and
inconvenience to tenants and other occupants of the Building
and Building 64. All installations,
E - 1
improvements and alterations made by Tenant shall be at its
sole cost and expense.
3. Prior to commencing any installation work in the Building,
Tenant shall obtain any necessary licenses or permits.
Landlord shall have the right to be present during Tenant's
installation of the Cable and Conduit.
4. In the event Tenant or any of its agents, representatives,
employees, invitees, contractors, or subcontractors cause
damage to the Building or Building 64, other than normal
wear and tear, or cause damage to the property of other
licensees or Tenants, then, at Landlord's option: (i) Tenant
shall repair at its sole cost and expense such damage in a
timely manner and to Landlord's reasonable satisfaction, or
(ii) Landlord shall repair such damage at Tenant's sole cost
and expense. If Landlord opts to repair the damage itself,
Tenant shall within thirty (30) days of demand pay to
Landlord all costs and expenses associated with or arising
from such work.
5. Tenant will maintain the Cable and Conduit in a first-class
condition.
6. At the revocation, expiration or termination of either of
this Lease or the Sublease, Tenant shall remove the Cable
and Conduit from the Xxxxxxxx, Xxxxxxxx 00 and the Walkway
and quit and surrender the areas in which they were located
in good order, condition and repair. Notwithstanding the
foregoing, Tenant shall not be required to remove any Cable
and Conduit or any Cable (as defined in Section IX.A. of the
Lease), which is located within the Premises.
II. PARKING.
A. During the Term, Tenant agrees to lease from Landlord and
Landlord agrees to lease to Tenant a total of eighty-four (84)
unreserved parking spaces (collectively, the "Spaces") in the
Building surface parking lot ("Parking Area") for the use of
Tenant and its employees. Tenant shall not have the right to
lease or otherwise use more than the number of unreserved Spaces
set forth above.
B. During the Term, Tenant shall pay Landlord, as Additional Rent in
accordance with Article IV of the Lease, the sum of $0 per month,
plus applicable tax thereon, if any, for each unreserved Space
leased by Tenant hereunder, as such rate may be adjusted from
time-to-time to reflect the then current rate for parking in the
Parking Area; provided, however, that the rate for Tenant's use
of the Parking Area shall be $0.00 per month for the entire
initial six (6) year Term of the Lease.
C. Except for particular spaces and areas designated by Landlord for
reserved parking, all parking in the Parking Area serving the
Building shall be on an unreserved, first-come, first-served
basis.
D. Landlord shall not be responsible for money, jewelry, automobiles
or other personal property lost in or stolen from the Parking
Area regardless of whether such loss or theft occurs when the
Parking Area is locked or otherwise secured. Except as caused by
the negligence or willful misconduct of Landlord and without
limiting the terms of the preceding sentence, Landlord shall not
be liable for any loss, injury or damage to persons using the
Parking Area or automobiles or other property therein, it being
agreed that, to the fullest extent permitted by law, the use of
the Spaces shall be at the sole risk of Tenant and its employees.
E. Landlord shall have the right from time to time to designate the
location of the Spaces and to promulgate reasonable rules and
regulations regarding the Parking Area, the Spaces and the use
thereof, including, but not limited to, rules and regulations
controlling the flow of traffic to and from various parking
areas, the angle and direction of parking and the like. Tenant
shall comply with and cause its employees to comply with all such
rules and regulations as well as all reasonable additions and
amendments thereto.
E - 2
F. Tenant shall not store or permit its employees to store any
automobiles in the Parking Area without the prior written consent
of Landlord. Except for emergency repairs, Tenant and its
employees shall not perform any work on any automobiles while
located in the Parking Area or on the Property. If it is
necessary for Tenant or its employees to leave an automobile in
the Parking Area overnight, Tenant shall provide Landlord with
prior notice thereof designating the license plate number and
model of such automobile.
G. Landlord shall have the right to temporarily close the Parking
Area or certain areas therein in order to perform necessary
repairs, maintenance and improvements to the Parking Area, if
any.
H. Tenant shall not assign or sublease any of the Spaces without the
consent of Landlord. Landlord shall have the right to terminate
Tenant's rights with respect to any Spaces that Tenant desires to
sublet or assign.
I. Landlord may elect to provide parking cards or keys to control
access to the Parking Area. In such event, Landlord shall provide
Tenant with one card or key for each Space that Tenant is leasing
hereunder, provided that Landlord shall have the right to require
Tenant or its employees to place a deposit on such access cards
or keys and to pay a fee for any lost or damaged cards or keys.
J. Landlord hereby reserves the right to enter into a management
agreement or lease with an entity for the Parking Area ("Parking
Operator"). In such event, Tenant, upon request of Landlord,
shall enter into a parking agreement with the Parking Operator
and Landlord shall have no liability for claims arising through
acts or omissions of the Parking Operator unless caused by
Landlord's negligence or willful misconduct. It is understood and
agreed that the identity of the Parking Operator may change from
time to time during the Term. Tenant hereby consents to the
assignment, from time to time, of the initial or any successor
Parking Operator's interest in the Parking Area to another
Parking Operator.
III. RENEWAL OPTION.
A. Tenant shall have the right to extend the Term (the "Renewal
Option") for one additional period of 5 years commencing on the
day following the Termination Date of the initial Term and ending
on the 5th anniversary of the Termination Date (the "Renewal
Term"), if:
1. Landlord receives notice of exercise ("Initial Renewal
Notice") not less than 12 full calendar months prior to the
expiration of the initial Term; and
2. Tenant is not in default under the Lease beyond any
applicable cure periods at the time that Tenant delivers its
Initial Renewal Notice or at the time Tenant delivers its
Binding Notice; and
3. Other than a Permitted Transfer, no part of the Premises is
sublet at the time that Tenant delivers its Initial Renewal
Notice or at the time Tenant delivers its Binding Notice;
and
4. Other than a Permitted Transfer, the Lease has not been
assigned prior to the date that Tenant delivers its Initial
Renewal Notice or prior to the date Tenant delivers its
Binding Notice.
B. The initial Base Rent rate per rentable square foot for the
Premises during the Renewal Term shall equal the greater of (1)
$24.30 per rentable square foot of the Premises and (2) the
Prevailing Market (hereinafter defined) rate per rentable square
foot for the Premises. The initial Base Rent for the Renewal Term
shall be subject to annual increases equal to 4% per year.
C. Tenant shall pay Additional Rent (i.e. Tenant's Pro Rata Share of
Expense Excess and Tenant's Pro Rata Share of Tax Excess) for the
Premises during the Renewal
E - 3
Term in accordance with Article IV of the Lease, except, however,
the Base Year for Taxes shall be 2005 and the Base Year for
Expenses shall be 2005.
D. Within 30 days after receipt of Tenant's Initial Renewal Notice,
Landlord shall advise Tenant of the applicable Base Rent rate for
the Premises for the Renewal Term. Tenant, within 15 days after
the date on which Landlord advises Tenant of the applicable Base
Rent rate for the Renewal Term, shall either (i) give Landlord
final binding written notice ("Binding Notice") of Tenant's
exercise of its option, or (ii) if Tenant disagrees with
Landlord's determination, provide Landlord with written notice of
rejection (the "Rejection Notice"). If Tenant fails to provide
Landlord with either a Binding Notice or Rejection Notice within
such 15 day period, Tenant's Renewal Option shall be null and
void and of no further force and effect. If Tenant provides
Landlord with a Binding Notice, Landlord and Tenant shall enter
into the Renewal Amendment upon the terms and conditions set
forth herein. If Tenant provides Landlord with a Rejection
Notice, Landlord and Tenant shall work together in good faith to
agree upon the Prevailing Market rate for the Premises during the
Renewal Term. Upon agreement Tenant shall provide Landlord with
Binding Notice and Landlord and Tenant shall enter into the
Renewal Amendment in accordance with the terms and conditions
hereof. Notwithstanding the foregoing, if Landlord and Tenant are
unable to agree upon the Prevailing Market rate for the Premises
within 30 days after the date on which Tenant provides Landlord
with a Rejection Notice, Tenant's Renewal Option shall be null
and void and of no force and effect.
E. If Tenant is entitled to and properly exercises its Renewal
Option, Landlord shall prepare an amendment (the "Renewal
Amendment") to reflect changes in the Base Rent, Term,
Termination Date and other appropriate terms. The Renewal
Amendment shall be sent to Tenant within a reasonable time after
receipt of the Binding Notice and Tenant shall execute and return
the Renewal Amendment to Landlord within 15 days after Tenant's
receipt of same, but an otherwise valid exercise of the Renewal
Option shall, at Landlord's option, be fully effective whether or
not the Renewal Amendment is executed.
F. For purposes hereof, "Prevailing Market" shall mean the arms
length fair market annual rental rate per rentable square foot
under renewal leases and amendments entered into on or about the
date on which the Prevailing Market is being determined hereunder
for space comparable to the Premises in the Building and office
buildings comparable to the Building in Atlanta, Georgia. The
determination of Prevailing Market shall take into account any
material economic differences between the terms of this Lease and
any comparison lease, such as rent abatements, construction costs
and other concessions and the manner, if any, in which the
landlord under any such lease is reimbursed for operating
expenses and taxes. The determination of Prevailing Market shall
also take into consideration any reasonably anticipated changes
in the Prevailing Market rate from the time such Prevailing
Market rate is being determined and the time such Prevailing
Market rate will become effective under this Lease. Additionally,
the determination of Prevailing Market shall also take into
consideration the 4% annual increases in Base Rent for the
Renewal Term as provided under Paragraph III.B above and the 2005
Base Year provided for under Paragraph III.C above.
G. Notwithstanding anything contained herein to the contrary, Tenant
acknowledges and agrees that the Renewal Option hereunder is
subject and subordinate to the rights of Philips Electronics
North American Corporation, and its successors and assignees
("Philips") in and to the Premises pursuant to that certain
Office Lease Agreement by and between Landlord and Philips dated
December 30, 1999 (the "Philips Lease"). Without limiting the
generality of the foregoing, Tenant acknowledges that pursuant to
the Philips Lease, Philips has a right of first offer with
respect to the Premises and that if Philips leases the Premises
upon expiration of the initial Term hereof pursuant to said right
of first offer, the Renewal Option hereunder shall be null and
void and of no further force or effect. Landlord shall promptly
provide Tenant with notice of any exercise by Philips of its
right of first offer with respect to Premises.
E - 4
H. The Building is connected to the building commonly known as 00
Xxxxxxxxx Xxxxxx Xxxx, (xxx "00 Xxxxxxxx") by a covered walkway
("Walkway") along with an amenities areas which includes, among
other things, a cafeteria (the "Cafeteria"). The Rentable Square
Footage of the Premises hereunder (i.e., 20,929 square feet) has
been determined without regard to the Walkway or Cafeteria.
Notwithstanding anything contained herein to the contrary, during
the Renewal Term, the Rentable Area of the Premises shall be
increased by an allocable share of the square footage of the
Walkway and Cafeteria. Such allocable share shall be determined
in a manner consistent with current standards of measurement of
rentable areas set by the Building Owners and Managers
Association ("BOMA"). For purposes of such BOMA allocation of the
square footage of the Walkway and Cafeteria, the Walkway and
Cafeteria shall be considered common areas of the Building.
Landlord shall provide written notice to Tenant of the increased
Rentable Square Footage of the Premises for the Renewal Term at
the same time as Landlord provides written notice to Tenant of
the applicable Base Rent rate for the Renewal Term under
Paragraph III.D above.
IV. ROOF SPACE DISH/ANTENNA.
A. Provided that Tenant provides written notice to Landlord within
one (1) year after the date of this Lease, time being of the
essence, that Tenant elects to exercise its rights hereunder,
Tenant shall have the right to operate and maintain a
dish/antenna of no more than 36" in diameter or other
communication device approved by the Landlord (the
"Dish/Antenna") on the roof of the Building or, so long as the
Sublease of premises in Building 64 is in full force and effect,
and subject to any existing rights of tenants in Building 64, on
the roof of Building 64. In the event Tenant fails to timely
notify Landlord of Tenant's election to operate and maintain such
Dish/Antenna, Tenant shall be deemed to have waived such right
and shall have no further right to install such Dish/Antenna on
the roof of the Building or Building 64. In the event Tenant
elects to erect the Dish/Antenna on the roof of the Building or
Building 64, commencing on the earlier to occur of (1) one (1)
year after the date of this Lease or (2) the date Tenant first
installs the Dish/Antenna on the roof of the Building or Building
64, Tenant shall pay to Landlord the sum of $250.00 per month
during the remaining balance of the Term hereof (the
"Dish/Antenna Payments"). The Dish/Antenna Payments shall
constitute Additional Rent under the terms of the Lease and
Tenant shall be required to make these payments in strict
compliance with the terms of Section IV of the Lease. The exact
location of the space on the roof to be leased by Tenant shall be
designated by Landlord and shall not exceed thirty-six (36)
square feet (the "Roof Space"). Landlord reserves the right to
relocate the Roof Space as reasonably necessary during the Term.
Landlord's designation shall take into account Tenant's use of
the Dish/Antenna. Notwithstanding the foregoing, Tenant's right
to install the Dish/Antenna shall be subject to the approval
rights of Landlord and Landlord's architect and/or engineer with
respect to the plans and specifications of the Dish/Antenna, the
manner in which the Dish/Antenna is attached to the roof of the
Building or Building 64 and the manner in which any cables are
run to and from the Dish/Antenna. The precise specifications and
a general description of the Dish/Antenna along with all
documents Landlord reasonably requires to review the installation
of the Dish/Antenna (the "Plans and Specifications") shall be
submitted to Landlord for Landlord's written approval no later
than twenty (20) days before Tenant commences to install the
Dish/Antenna. Tenant shall be solely responsible for obtaining
all necessary governmental and regulatory approvals and for the
cost of installing, operating, maintaining and removing the
Dish/Antenna. Tenant shall notify Landlord upon completion of the
installation of the Dish/Antenna. If Landlord determines that the
Dish/Antenna equipment does not comply with the approved Plans
and Specifications, that the Building or Building 64, as the case
may be, has been damaged during installation of the Dish/Antenna
or that the installation was defective, Landlord shall notify
Tenant of any noncompliance or detected problems and Tenant
immediately shall cure the defects. If the Tenant fails to
immediately cure the defects, Tenant shall pay to Landlord upon
demand the cost, as reasonably determined by Landlord, of
correcting any defects and repairing any damage to the Building
or Building 64, as the case may be, caused by such installation.
If at any time Landlord, in its sole discretion, deems it
necessary, Tenant shall provide and install, at Tenant's sole
E - 5
cost and expense, appropriate aesthetic screening, reasonably
satisfactory to Landlord, for the Dish/Antenna (the "Aesthetic
Screening").
B. Landlord agrees that Tenant, upon reasonable prior written notice
to Landlord, shall have access to the roof of the Building or
Building 64, as the case may be, and the Roof Space for the
purpose of installing, maintaining, repairing and removing the
Dish/Antenna, the appurtenances and the Aesthetic Screening, if
any, all of which shall be performed by Tenant or Tenant's
authorized representative or contractors, which shall be approved
by Landlord, at Tenant's sole cost and risk. It is agreed,
however, that only authorized engineers, employees or properly
authorized contractors of Tenant, FCC inspectors, or persons
under their direct supervision will be permitted to have access
to the roof of the Building or Building 64, as the case may be,
and the Roof Space. Tenant further agrees to exercise firm
control over the people requiring access to the roof of the
Building or Building 64, as the case may be, and the Roof Space
in order to keep to a minimum the number of people having access
to the roof of the Building or Building 64, as the case may be,
and the Roof Space and the frequency of their visits.
C. It is further understood and agreed that the installation,
maintenance, operation and removal of the Dish/Antenna, the
appurtenances and the Aesthetic Screening, if any, is not
permitted to damage the Building or Building 64, as the case may
be, or the roof thereof, or interfere with the use of the
Building or Building 64, as the case may be, and roof by
Landlord. Tenant agrees to be responsible for any damage caused
to the roof or any other part of the Building or Building 64, as
the case may be, which may be caused by Tenant or any of its
agents or representatives.
D. Tenant agrees to install only equipment of types and frequencies
which will not cause unreasonable interference to Landlord or
existing tenants of the Building and Building 64. In the event
Tenant's equipment causes such interference, Tenant will change
the frequency on which it transmits and/or receives and take any
other steps necessary to eliminate the interference. If said
interference cannot be eliminated within a reasonable period of
time, in the judgment of Landlord, then Tenant agrees to remove
the Dish/Antenna from the Roof Space.
E. Tenant shall, at its sole cost and expense, and at its sole risk,
install, operate and maintain the Dish/Antenna in a good and
workmanlike manner, and in compliance with all building,
electric, communication, and safety codes, ordinances, standards,
regulations and requirements, now in effect or hereafter
promulgated, of the Federal Government, including, without
limitation, the Federal Communications Commission (the "FCC"),
the Federal Aviation Administration ("FAA") or any successor
agency of either the FCC or FAA having jurisdiction over radio or
telecommunications, and of the state, city and county in which
the Building is located. Under this Lease, the Landlord and its
agents assume no responsibility for the licensing, operation
and/or maintenance of Tenant's equipment. Tenant has the
responsibility of carrying out the terms of its FCC license in
all respects. The Dish/Antenna shall be connected to Landlord's
power supply in strict compliance with all applicable building,
electrical, fire and safety codes. Tenant shall pay to Landlord,
promptly upon receipt of invoice for same from Landlord, for all
electrical power consumed by the Dish/Antenna. Neither Landlord
nor its agents shall be liable to Tenant for any stoppages or
shortages of electrical power furnished to the Dish/Antenna or
the Roof Space because of any act, omission or requirement of the
public utility serving the Building or Building 64, as the case
may be, or the act or omission of any other tenant, invitee or
licensee or their respective agents, employees or contractors, or
for any other cause beyond the reasonable control of Landlord,
and Tenant shall not be entitled to any rental abatement for any
such stoppage or shortage of electrical power. Neither Landlord
nor its agents shall have any responsibility or liability for the
conduct or safety of any of Tenant's representatives, repair,
maintenance and engineering personnel while in or on any part of
the Building, Building 64 or the Roof Space.
F. The Dish/Antenna, the appurtenances and the Aesthetic Screening,
if any, shall remain the personal property of Tenant, and shall
be removed by Tenant at its own expense at the expiration or
earlier termination of this Lease or Sublease, if
E - 6
applicable, or Tenant's right to possession hereunder or
thereunder, as applicable. Tenant shall repair any damage caused
by such removal, including the patching of any holes to match, as
closely as possible, the color surrounding the area where the
equipment and appurtenances were attached. Tenant agrees to
maintain all of the Tenant's equipment placed on or about the
roof or in any other part of the Building or Building 64, as the
case may be, in proper operating condition and maintain same in
satisfactory condition as to appearance and safety in Landlord's
sole discretion. Such maintenance and operation shall be
performed in a manner to avoid any interference with any other
tenants or Landlord. Tenant agrees that at all times during the
Term, it will keep the roof of the Building or Building 64, as
the case may be, and the Roof Space free of all trash or waste
materials produced by Tenant or Tenant's agents, employees or
contractors.
G. In light of the specialized nature of the Dish/Antenna, Tenant
shall be permitted to utilize the services of its choice for
installation, operation, removal and repair of the Dish/Antenna,
the appurtenances and the Aesthetic Screening, if any, subject to
the reasonable approval of Landlord. Notwithstanding the
foregoing, Tenant must provide Landlord with prior written notice
of any such installation, removal or repair and coordinate such
work with Landlord in order to avoid voiding or otherwise
adversely affecting any warranties granted to Landlord with
respect to the roof. If necessary, Tenant, at its sole cost and
expense, shall retain any contractor having a then existing
warranty in effect on the roof to perform such work (to the
extent that it involves the roof), or, at Tenant's option, to
perform such work in conjunction with Tenant's contractor. In the
event the Landlord contemplates roof repairs that could affect
Tenant's Dish/Antenna, or which may result in an interruption of
the Tenant's telecommunication service, Landlord shall formally
notify Tenant at least thirty (30) days in advance (except in
cases of an emergency) prior to the commencement of such
contemplated work in order to allow Tenant to make other
arrangements for such service.
H. Tenant shall not allow any provider of telecommunication, video,
data or related services ("Communication Services") to locate any
equipment on the roof of the Building, Building 64 or in the Roof
Space for any purpose whatsoever, nor may Tenant use the Roof
Space and/or Dish/Antenna to provide Communication Services to an
unaffiliated tenant, occupant or licensee of another building, or
to facilitate the provision of Communication Services on behalf
of another Communication Services provider to an unaffiliated
tenant, occupant or licensee of the Building, Building 64 or any
other building.
I. Tenant acknowledges that Landlord may at some time establish a
standard license agreement (the "License Agreement") with respect
to the use of roof space by tenants of the Building or Building
64, or both. Tenant, upon request of Landlord, shall enter into
such License Agreement with Landlord provided that such agreement
does not materially alter the rights of Tenant hereunder with
respect to the Roof Space.
J. Tenant specifically acknowledges and agrees that the terms and
conditions of Article XIV of the Lease (Indemnity and Waiver of
Claims) shall apply with full force and effect to the Roof Space
and any other portions of the roof accessed or utilized by
Tenant, its representatives, agents, employees or contractors.
K. If Tenant defaults under any of the terms and conditions of this
Section or the Lease, and Tenant fails to cure said default
within the time allowed by Article XIX of the Lease, Landlord
shall be permitted to exercise all remedies provided under the
terms of the Lease, including removing the Dish/Antenna, the
appurtenances and the Aesthetic Screening, if any, and restoring
the Building or Building 64, as the case may be, and the Roof
Space to the condition that existed prior to the installation of
the Dish/Antenna, the appurtenances and the Aesthetic Screening,
if any. If Landlord removes the Dish/Antenna, the appurtenances
and the Aesthetic Screening, if any, as a result of an uncured
default, Tenant shall be liable for all costs and expenses
Landlord incurs in removing the Dish/Antenna, the appurtenances
and the Aesthetic Screening, if any, and repairing any damage to
the Building or Building 64, as the case may be, the roof of the
Building or Building 64, as the case may be, and the Roof Space
caused by the installation, operation or maintenance of the
Dish/Antenna, the appurtenances, and the Aesthetic Screening, if
any.
E - 7
IN WITNESS WHEREOF, Landlord and Tenant have executed this exhibit as
of the day and year first above written.
LANDLORD:
EOP-PERIMETER CENTER, L.L.C., a Delaware limited
liability company
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a Maryland
real estate investment trust, its managing
general partner
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
---------------------------
Title: V.P. Leasing
--------------------------
TENANT:
INTERLIANT, INC., a Delaware corporation
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxxxx Xxxxxx
---------------------------------------------
Title: Senior Vice President
--------------------------------------------
E - 8
EXHIBIT F
FORM OF LETTER OF CREDIT
------------------------
-------------------------------
[Name of Financial Institution]
Irrevocable Standby
Letter of Credit
No.
------------------------------------
Issuance Date:
-------------------------
Expiration Date:
-----------------------
Applicant:
-----------------------------
Beneficiary
-----------
[Insert Name of Owner]
-----------------------------
-----------------------------
-----------------------------
Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your favor
for the account of the above referenced Applicant in the amount of
____________________ U.S. Dollars ($____________________) available for payment
at sight by your draft drawn on us when accompanied by the following documents:
1. An original copy of this Irrevocable Standby Letter of Credit.
2. Beneficiary's dated statement purportedly signed by one of its officers
reading: "This draw in the amount of ______________________ U.S. Dollars
($____________) under your Irrevocable Standby Letter of Credit No.
____________________ represents funds due and owing to us as a result of
the Applicant's failure to comply with one or more of the terms of that
certain lease by and between ______________________, as landlord, and
_____________, as tenant."
It is a condition of this Irrevocable Standby Letter of Credit that it will
be considered automatically renewed for a one year period upon the expiration
date set forth above and upon each anniversary of such date, unless at least
sixty (60) days prior to such expiration date or applicable anniversary thereof,
we notify you in writing by certified mail, return receipt requested, that we
elect not to so renew this Irrevocable Standby Letter of Credit. A copy of any
such notice shall also be sent to: Equity Office Properties Trust, 0 Xxxxx
Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Attention: Treasurer. In
addition to the foregoing, we understand and agree that you shall be entitled to
draw upon this Irrevocable Standby Letter of Credit in accordance with 1 and 2
above in the event that we elect not to renew this Irrevocable Standby Letter of
Credit and, in addition, you provide us with a dated statement purportedly
signed by one of Beneficiary's officers stating that the Applicant has failed to
provide you with an acceptable substitute irrevocable standby letter of credit
in accordance with the terms of the above referenced lease. We further
acknowledge and agree that: (a) upon receipt of the documentation required
herein, we will honor your draws against this Irrevocable Standby Letter of
Credit without inquiry into the accuracy of Beneficiary's signed statement and
regardless of whether Applicant disputes the content of such statement; (b) this
Irrevocable Standby Letter of Credit shall permit partial draws and, in the
event you elect to draw upon less than the full stated amount hereof, the stated
amount of this Irrevocable Standby Letter of Credit shall be automatically
reduced by the amount of such partial draw; and (c) you shall be entitled to
assign your interest in this Irrevocable Standby Letter of Credit from time to
time without our approval and without charge. In the event of an assignment, we
reserve the right to require reasonable evidence of such assignment as a
condition to any draw hereunder.
This Irrevocable Standby Letter of Credit is subject to the Uniform Customs
and Practice for Documentary Credits (1993 revision) ICC Publication No. 500.
F - 1
We hereby engage with you to honor drafts and documents drawn under and in
compliance with the terms of this Irrevocable Standby Letter of Credit.
All communications to us with respect to this Irrevocable Standby Letter of
Credit must be addressed to our office located at ______________________________
the attention of __________________________________.
Very truly yours,
______________________________
______________________________
[name]
______________________________
[title]
F - 2
