Exhibit 4.(B)4
EXECUTION COUNTERPART
LEASE AGREEMENT
000 Xxxxxxxxxx Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxx
by and between
NORTHWINDS CENTER, L.P.,
a Georgia limited partnership
("Landlord")
and
FUTURE HORIZONS, INC.,
a Georgia corporation
("Tenant")
February 22, 1999
TABLE OF CONTENTS
Page
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ARTICLE 1. BASIC LEASE INFORMATION AND
CERTAIN DEFINITIONS 1
ARTICLE 2. DEMISE; COMMON AREAS 1
ARTICLE 3. RENT 2
ARTICLE 4. OPERATING COSTS 2
ARTICLE 5. SERVICES OF LANDLORD 2
ARTICLE 6. ASSIGNMENT AND SUBLETTING 3
ARTICLE 7. REPAIRS AND MAINTENANCE 3
ARTICLE 8. ALTERATIONS 3
ARTICLE 9. USE AND COMPLIANCE WITH LAWS 4
ARTICLE 10. DEFAULT AND REMEDIES 4
ARTICLE 11. INSURANCE 6
ARTICLE 12. DAMAGE BY FIRE OR OTHER CASUALTY 7
ARTICLE 13. CONDEMNATION 7
ARTICLE 14. WAIVER AND INDEMNIFICATION 8
ARTICLE 15. SUBORDINATION AND ESTOPPEL CERTIFICATES 8
ARTICLE 16. SURRENDER OF THE PREMISES 8
ARTICLE 17. BROKERAGE 9
ARTICLE 18. NOTICES 9
ARTICLE 19. BANKRUPTCY 9
ARTICLE 20. MISCELLANEOUS 10
EXHIBITS
The following Exhibits are attached hereto and by this reference made a
part of this Lease:
EXHIBIT "A" - FLOOR PLAN OF THE PREMISES
EXHIBIT "B" - LEASEHOLD IMPROVEMENTS
EXHIBIT "C" - ADDITIONAL TERMS AND PROVISIONS
EXHIBIT "D" - RULES AND REGULATIONS
EXHIBIT "E" - DEFINITIONS
EXHIBIT "F" - LEGAL DESCRIPTION OF THE LAND
LEASE AGREEMENT
THIS LEASE AGREEMENT (this "Lease") is made and entered into as of the 22nd
day of February, 1999, by and between NORTHWINDS CENTER, L.P., a Georgia limited
partnership ("Landlord"), and FUTURE HORIZONS, INC., a Georgia corporation
("Tenant"), upon all the terms set forth in this Lease and in all exhibits
hereto, to each and all of which terms Landlord and Tenant hereby mutually
agree, and in consideration of One Dollar ($1.00) and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
of the rents, agreements and benefits flowing between the parties hereto, as
follows:
ARTICLE 1. BASIC LEASE INFORMATION AND CERTAIN DEFINITIONS. Section 1.1.
Each of the terms capitalized and defined in this Section shall have the
indicated meaning.
A. Premises: Approximately 13,115 rentable square feet (the "Premises RSF") on the sixth (6th)
floor of the Building, as approximately depicted on the floor plan attached hereto
as Exhibit "A".
B. Building: The building known as 000 XxxxxXxxxx Xxxxxx Xxxx, 00000 Xxxxxx Xxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxx 00000,, containing approximately 146,800 rentable square feet
(the "Building RSF").
C. Commencement Date: Subject to adjustment as provided in Exhibit "B", the Commencement Date shall be the
date on which the Leasehold Improvements are Substantially Complete (as defined in
Exhibit "B").
D. Term; Extension Term: The initial Term shall be the five (5) year period commencing on the Commencement Date
and shall expire at midnight on the day on which such period expires, subject to
earlier termination as herein provided (the "Initial Term"). Tenant may extend such
Initial Term for one extension term of five (5) years, subject to and as set forth in
Article 28 of this Lease. Unless the "Initial Term" is specified, the word "Term" as
used in the Lease shall mean the Initial Term and any extension term exercised by
Tenant.
E. Tenant's Share: Approximately eight and ninety-three hundredths percent (8.93%), representing the
ratio that the Premises RSF bears to the Building RSF, subject to adjustment pursuant
to the terms and provisions of this Lease.
F. Base Rent: The initial Base Rent per square foot of Premises RSF will be Twenty-one and No/100
Dollars ($21.00). The Base Rent shall be increased at the expiration of each twelve
(12) month period of the Term by three percent (3%) of the Net Base Rent applicable
during the then expiring twelve (12) month period. For purposes hereof, the phrase
"Net Base Rent" means the then applicable Base Rent less the Base Year Operating Costs
and Taxes.
G. Base Year Operating The Base Year Operating Costs and Base Year Taxes shall be the annualized Operating
Costs; Base Year Taxes: Costs and Taxes, respectively, for the calendar year 1999 (the "Base Year"), subject
to adjustment pursuant to Section 4.2 of this Lease.
H. Permitted Use: Tenant may use the Premises only for general office purposes for the conduct of
Tenant's business and related purposes, subject to the terms and provisions of this
Lease.
I. Security Deposit: None initially required, as set forth in Section 20.12 hereof.
J. Tenant Improvement Nineteen and No/100 Dollars ($19.00) per square foot of the Premises RSF, as set forth
Allowance: in Exhibit "B".
K. Broker(s): Tenant's Broker: CarrAmerica
Landlord's Broker: Xxxx & Land Enterprises, Inc.
L. Landlord's Address Northwinds Center, L.P.
for Notice: Cumberland Center IV
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx III
With a copy to:
Xxxxxxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxxxxx
M. Landlord's Address Northwinds Center, L.P.
for Payment: Cumberland Center IV
0000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Accounting Dept.
N. Tenant's Address The Premises
for Notice: Attention: President
ARTICLE 2. DEMISE; COMMON AREAS. Subject to the terms hereof, Landlord
hereby leases the Premises to Tenant, and Tenant hereby rents and hires the
Premises from Landlord, for the Term. During the Term and subject to the terms
and provisions of this Lease, Tenant shall have the non-exclusive right to use
the Common Areas. "Common Areas" shall mean all areas and spaces made available
by Landlord from time to time for the common and non-exclusive use of Landlord,
Tenant, other tenants and occupants of the Building, or of the Project, and
others designated by Landlord, including, without limitation, loading docks and
loading areas. Tenant agrees and acknowledges that the Premises does not
include, and Landlord hereby expressly reserves for its sole and exclusive use,
any
and all areas, spaces, facilities and equipment serving the Building (whether or
not located within the Building) to which Tenant and other occupants of the
Building will not have access (the "Service Areas"), including, but not limited
to: janitor closets and mechanical, telephone, electrical and similar rooms; air
and water refrigeration equipment; elevator, pipe and other vertical shafts and
ducts and flues; stairwells; and any area above the acoustical ceiling.
Notwithstanding anything to the contrary contained herein, Landlord shall have
the unrestricted right to make changes to or to reconfigure all portions of the
Project, including, without limitation, the Common Areas and Service Areas, in
Landlord's reasonable discretion, and Landlord shall have the right to close,
from time to time, the Common Areas and other portions of the Project for such
temporary periods as Landlord deems legally sufficient to evidence Landlord's
ownership and control thereof and to prevent any claim of adverse possession by,
or any implied or actual dedication to, the public or any party other than
Landlord.
ARTICLE 3. RENT. Tenant shall pay to Landlord: (a) the Base Rent in
equal monthly installments, in advance, on the first day of each calendar month
during the Term; and (b) the Additional Rent, at the respective times required
hereunder. One monthly installment of Base Rent shall be paid in advance on the
date of Tenant's execution of this Lease and applied to the first monthly
installment of Base Rent coming due under this Lease. Payment of Base Rent for
any partial month shall be prorated for such month. Tenant shall pay the Rent
all in accordance with the terms and provisions of this Lease without notice,
demand, offset or deduction, except as may be expressly provided in this Lease,
and in lawful money of the United States at Landlord's Address for Payment, or
at such other place as Landlord shall designate in writing from time to time.
Tenant's covenant to pay Rent is independent of any other covenant, condition,
provision or agreement of this Lease. All past due installments of Rent shall:
(i) be subject to a late charge of five percent (5%) of the past due amounts;
provided, however, the first two such past due installments during any
twelve-month period shall not be subject to such late charge, so long as Tenant
pays each such installment within ten (10) days after Landlord gives written
notice that such installment is past due; and (ii) bear interest at the Interest
Rate accruing from the due date until paid. The late charge is intended to
reimburse Landlord for administrative costs incurred by Landlord as a result of
Tenant's late payment, and is not a penalty. On the first annual anniversary of
the Commencement Date, and on each and every annual anniversary of the
Commencement Date thereafter during the Term, the Base Rent shall be increased
as specified in Section 1.1(F).
ARTICLE 4. OPERATING COSTS AND TAXES. Section 4.1 Tenant shall pay to
Landlord Tenant's Share of Excess Operating Costs and Excess Taxes for each
calendar year or fractional calendar year during the Term in accordance with the
terms and provisions of this Article 4.
A. Prior to the first business day (or as soon thereafter as is
practicable) of each calendar year after the Base Year, Landlord shall give
Tenant a statement setting forth Landlord's estimate of Excess Operating Costs
and Excess Taxes for such calendar year and Tenant's Share thereof. With respect
to the first calendar year after the Base Year, (i) if such statement is given
prior to January 1 of such year, then on January 1 and on the first day of each
month during such calendar year Tenant shall pay to Landlord the Monthly
Installment of Excess Operating Costs and Excess Taxes for such calendar year,
or (ii) if such statement is given on or after January 1 of such year, then
within thirty (30) days after such statement is given Tenant shall pay to
Landlord the product of the amount of the Monthly Installment of Excess
Operating Costs and Excess Taxes for such calendar year multiplied by the number
of months during such calendar year occurring prior to the date of such payment
(including the month during which such payment is made) and thereafter Tenant
shall pay to Landlord, on the first day of each month during the remainder of
such calendar year, the Monthly Installment of Excess Operating Costs and Excess
Taxes for such calendar year. With respect to the second and subsequent calendar
years after the Base Year, (i) if such statement is given prior to January 1 of
such year, then on January 1 and on the first day of each month during such
calendar year Tenant shall pay to Landlord the Monthly Installment of Excess
Operating Costs and Excess Taxes for such calendar year, or (ii) if for any
reason such statement is given on or after January 1 of such year, then until
Tenant is given such statement Tenant shall continue to pay to Landlord, on
January 1 and on the first day of each month until the date on which such
statement is given, the Monthly Installment of Excess Operating Costs and Excess
Taxes for the preceding calendar year, and (A) within thirty (30) days after
such statement is given Tenant shall pay to Landlord any underpayment by Tenant,
or, in the event of an overpayment by Tenant, such overpayment shall be applied
as a credit against the next installment(s) of Rent payable under this Lease,
and (B) thereafter Tenant shall pay to Landlord, on the first day of each month
during the remainder of the calendar year to which such statement relates, the
Monthly Installment of Excess Operating Costs and Excess Taxes for such calendar
year. For purposes of clause (ii)(A) of the preceding sentence, any underpayment
or overpayment shall be determined based on the amount of Monthly Installments
of Excess Operating Costs and Excess Taxes paid by Tenant for such calendar year
prior to the date on which such statement is given relative to the amount of
Monthly Installments of Excess Operating Costs and Excess Taxes that would have
been payable by Tenant prior to the date on which such statement is given if
such statement had been given prior to January 1 of such calendar year. Landlord
may, from time to time during any calendar year after the Base Year (but not
more frequently than once during any calendar year), notify Tenant in writing of
any change in Landlord's estimate of Excess Operating Costs or Excess Taxes, or
both of them, for the remainder of such calendar year, in which event the
Monthly Installment of Excess Operating Costs and Excess Taxes payable for each
of the remaining months of such calendar year shall be adjusted to reflect such
change.
B. On approximately the first day of April of the first year after the
Base Year (or as soon thereafter as is practicable), Landlord shall give Tenant
a statement of the actual Excess Operating Costs and Excess Taxes incurred or
paid for the Base Year. On approximately the first day of April of the second
year after the Base Year and each subsequent year during the Term (or as soon
thereafter as is practicable), Landlord shall give Tenant a statement of the
actual Excess Operating Costs and Excess Taxes incurred or paid for the
preceding calendar year and of Tenant's Share thereof (the "Reconciliation
Statement"). Within thirty (30) days after such statement is given, Tenant shall
pay to Landlord the amount by which Tenant's Share of Excess Operating Costs and
Excess Taxes for such preceding calendar year, as shown on Landlord's statement,
exceeds the aggregate of the amount paid by Tenant therefor, or, in the event of
any overpayment by Tenant, such overpayment by Tenant shall be applied as a
credit against the next installment(s) of Rent payable under this Lease.
Section 4.2 If the Building is not fully occupied (meaning ninety-five
percent (95%) of the Building RSF) during any full or fractional calendar year
of the Term (including, without limitation, the Base Year), the actual Operating
Costs and Taxes for such calendar year shall be adjusted to the amount that, in
the reasonable estimation of Landlord, would have been incurred or paid if the
Building had been fully occupied for such calendar year.
Section 4.3 If at any time during the Term taxes, assessments, excises,
levies, or other fees or charges of any kind or nature whatsoever by any public
authority are levied, imposed, assessed, charged, confirmed, or imposed on the
rents received from the Project, then the same shall be paid when due by Tenant
to the extent attributable to the Rent payable hereunder by Tenant or reserved
herein. Tenant shall pay when due any taxes, assessments, excises, levies, and
other fees and charges of any kind or nature whatsoever by any public authority
that are now or hereafter levied, imposed, assessed, charged, confirmed, or
imposed on or against (i) the personal property in the Premises, or (ii) the
leasehold improvements in the Premises (but only if and to the extent similar
leasehold improvements in the premises of other tenants in the Building are also
separately taxed or assessed).
Section 4.4 Tenant may examine or cause an audit of Landlord's records
relating to Operating Costs for a calendar year by giving Landlord Tenant's
written request to conduct such examination or audit within thirteen (13) months
after Tenant's receipt or deemed receipt of the Reconciliation Statement for
such calendar year. Such examination or audit shall be conducted during normal
business
2
hours, at a time and date acceptable to each of Landlord and Tenant. In the
event that, as a result of any such examination or audit, Tenant disputes any
payment of Tenant's Share of Excess Operating Costs for the calendar year being
examined, and Landlord disagrees with Tenant with respect to such dispute, then
Landlord and Tenant shall each select one of its officers or senior managers to
represent it, and such representatives shall promptly meet or otherwise
communicate and use reasonable, good faith efforts to resolve such dispute. If
such representatives do not resolve any such dispute within thirty (30) days
after their initial meeting or other communication concerning such dispute, then
such dispute shall be resolved by arbitration in accordance with the rules of
the American Arbitration Association, with each of Landlord and Tenant paying
one-half of the cost of such arbitration. Notwithstanding the foregoing, in no
event shall Tenant be entitled to withhold or delay payment of any portion of
Excess Operating Costs payable by Tenant hereunder on account of any such
dispute.
ARTICLE 5. SERVICES OF LANDLORD. Section 5.1 Provided Tenant has not
abandoned the Premises and there exists no event of default on behalf of Tenant,
Landlord agrees to furnish or cause to be furnished to the Premises, the
following services, subject to all other provisions of this Lease:
A. Elevator Service; Access. Except during periods of repair or
reconditioning or emergencies, Landlord shall use reasonable efforts to
provide automatic elevator facilities (if applicable) during Business
Hours (as hereinafter defined) and have at least one (1) elevator
available for use at all other times to provide Tenant with twenty-four
hour access to the Premises seven days per week during the Term. Tenant
may use the freight elevator of the Building subject to reasonable
advance written notice to Landlord for scheduling such use and to the
requirements of other uses of such elevator. In the event Landlord
installs a card or keypad access system for entry into the Building or
any floor thereof on which any portion of the Premises is located,
Landlord shall furnish to Tenant a reasonable number of access cards or
a security code, as the case may be, without charge; provided, however,
Landlord may charge a reasonable deposit for any such access cards
furnished to Tenant.
B. Heat and Air Conditioning. Landlord shall cause to be furnished
seasonable air conditioning and heating during Business Hours, at such
temperatures and in such amounts as is customary in buildings of
comparable size, quality and in the general vicinity of the Building,
with such adjustments as Landlord reasonably deems necessary for the
comfortable occupancy of the Premises, subject to any governmental
requirements, ordinances, rules, regulations, guidelines or standards
relating to, among other things, energy conservation. Tenant may
request air conditioning and heating for all or any portion of the
Premises during hours other than Business Hours by at giving reasonable
advance written notice on or before such deadline therefor as may be
established by Landlord from time to time, which notice shall specify
the hours, and, in the event the Premises is composed of more than one
air conditioning and heating zone, the zone or zones, for which such
air conditioning and heating is requested. The additional charge for
such air conditioning and heating shall be a reasonable charge, as
established by Landlord from time to time; provided, however, so long
as Future Horizons, Inc., a Georgia corporation, is the "tenant" under
this Lease, such charge during the Initial Term shall be Twenty-five
Dollars ($25.00) per hour or portion thereof, Monday through Saturday,
and Thirty-five Dollars ($35.00) per hour or portion thereof on Sunday,
per air conditioning and heating zone specified in Tenant's written
notice. In the event Tenant and another tenant request such air
conditioning and heating for the same time period and for the same zone
or zones, the charge therefor shall be prorated (based on the relative
rentable square footage of each such tenant's premises within the
common zone or zones) between Tenant and such other tenant.
C. Electricity. Landlord shall cause to be furnished to the Premises
electric current for Building standard light levels produced by
Building standard fluorescent lighting fixtures installed or approved
by Landlord and for the operation of standard office machines and
equipment having low electrical consumption; provided, however, Tenant
shall be solely responsible for the costs of electrical consumption in
excess of (i) 3.5 xxxxx for each usable square foot of the Premises for
Building standard lighting, (ii) 1.5 xxxxx for each such usable square
foot for incidental uses of usual and normal standard office machines
and equipment, or (iii) 2.0 xxxxx for each such usable square foot for
additional capacity (which costs, if any, are herein called "Excess
Consumption Costs"). Without in any way limiting Tenant's
responsibility for Excess Consumption Costs, Landlord reserves the
right to prohibit installation within the Premises of machines and
equipment that would result in the electrical consumption of the
Premises being in excess of said wattages. Without the express written
consent of Landlord, Tenant shall not use electric current in excess of
the capacity of the feeders or lines to the Building or the risers or
wiring installation of the Building or the Premises. Landlord may
determine Excess Consumption Costs by a survey performed by a reputable
consultant or by an additional separate meter in the Premises, the cost
of such survey or meter to be borne by Tenant.
D. Water. Landlord shall cause to be furnished water for drinking,
cleaning and lavatory purposes only.
E. Janitorial Services. Landlord shall provide janitorial services to
the Premises in a manner comparable to that provided in other office
buildings of similar size, quality and in the general vicinity of the
Building, provided the Premises are used exclusively as offices and
further provided Tenant complies with Article 7 hereof.
Section 5.2 No interruption or stoppage from any cause of the services
referred to in this Article 5 or any other services furnished by Landlord,
including, without limitation, utilities, shall make Landlord liable in any
respect for damages to any person, property or business, or be construed as an
eviction of Tenant, or entitle Tenant to any abatement of Rent or other relief
from any of Tenant's obligations under this Lease; provided, however, if (i)
Landlord causes the interruption or stoppage of the elevator service, air
conditioning and heating or electric current to be provided to the Premises
pursuant to subparagraph A, B or C, above, and (ii) such interruption or
stoppage causes any material portion of the Premises to be untenantable for
three (3) consecutive days after the earlier of Landlord's receipt of Tenant's
written notice thereof or the date on which the individual employed by Landlord
as either the property manager or as the chief maintenance engineer has actual
knowledge thereof, then Tenant shall be entitled to an abatement of Base Rent
with respect to that portion of the Premises so rendered untenantable for the
period from and after the expiration of such three-day period until air
conditioning and heating or electric current is restored to the Premises as
aforesaid; in any event, Landlord shall use reasonable efforts to restore such
service as soon as practicable. The furnishing of services, including without
limitation utilities, shall be subject to the rules and regulations of the
supplier of such service and any applicable rules and regulations of any
municipal or other governmental authority.
ARTICLE 6. ASSIGNMENT AND SUBLETTING. Tenant shall not assign,
mortgage, pledge, encumber or otherwise transfer this Lease or any portion
thereof, or the interest of Tenant under this Lease, or sublease the Premises,
or any portion thereof, by operation of law or otherwise, or permit any person
or entity other than Tenant to occupy or use the Premises, or any portion
thereof, without the prior written consent of Landlord, which consent shall not
be unreasonably withheld or delayed; provided, however, Tenant may assign or
transfer its interest in this Lease or sublet the Premises, or any portion
thereof, to a Permitted Assignee (as hereinafter defined) without obtaining
Landlord's consent, so long as Tenant gives Landlord prior written notice
thereof. For purposes hereof, a "Permitted Assignee" means any person or entity
(i) that controls Tenant, is controlled by Tenant, or is under common control
with Tenant ("control" meaning ownership of greater than fifty percent (50%) of
the equity interest in the controlled person or entity) (a "Tenant Affiliate"),
or (ii) that is merged or consolidated with Tenant or into which Tenant is
merged or consolidated, or (iii) that purchases substantially all of the assets
of
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Tenant. No acceptance by Landlord of any Rent or any other sum of money from
any assignee, subtenant or other transferee shall be deemed to constitute
Landlord's consent to any assignment, sublease, mortgage, pledge, encumbrance or
other transfer. Tenant acknowledges and agrees that any consent by Landlord
pursuant to this Article 6 shall not be deemed to be a consent to any subsequent
assignment, sublease, mortgage, pledge, encumbrance or any other agreement or
other action to which Landlord's consent is required, whether or not such
consent by Landlord shall expressly limit the application thereof to the consent
then being given. In no event whatsoever shall (x) Tenant sublet, assign or
otherwise endeavor to transfer any interest of Tenant in this Lease to any other
tenant of space in the Building, unless such other tenant is a Tenant Affiliate,
(y) Tenant sublet, or list, advertise or otherwise publicize in any way the
availability of, all or any part of the Premises at a rental rate which is less
than the rate for which Landlord is then offering any other space in the
Building or any other improvements of which the Building and Premises form a
part, or (z) any advertisement or other publication for subletting or assignment
state the name (as distinguished from the address) of the Building or of the
office park in which the Building is located. Any attempted assignment,
mortgage, pledge, encumbrance or other transfer or sublease by Tenant in
violation of the terms and provisions of this Article 6 shall be void and shall
constitute a material breach of this Lease. In no event shall any assignment,
subletting, mortgage, pledge, encumbrance or other transfer, whether or not with
Landlord's consent, relieve Tenant of its primary liability under this Lease for
the entire Term, and Tenant shall in no way be released from the full and
complete performance of all the terms hereof. Landlord shall be entitled to
one-half of all rental payable to Tenant pursuant to any assignment, subletting
or other transfer in excess of the Rent payable by Tenant hereunder, after
deducting from such excess all reasonable brokerage commissions, tenant
improvement costs, architectural fees and attorneys' fees and other reasonable
costs incurred or paid by Tenant in order to effect such assignment or
subletting, so long as such commissions, costs, allowances, fees and costs are
not paid or reimbursed by the assignee or subtenant or another person or entity.
ARTICLE 7. REPAIRS, MAINTENANCE. Section 7.1 Tenant shall, at Tenant's
sole cost and expense, (i) maintain and keep the interior of the Premises
(including, but not limited to, all fixtures, walls, ceilings, floors, doors,
windows and equipment which are a part of the Premises) in good repair and
condition, (ii) repair or replace any damage or injury done to the Building or
any other part of the Project caused by Tenant, Tenant's agents, employees,
licensees, invitees or visitors or resulting from a breach of its obligations
under this Section 7.1 or Section 7.2 and (iii) indemnify and hold Landlord
harmless from any and all costs, expenses (including reasonable attorneys' fees
actually incurred), claims and causes of action arising from or incurred by
and/or asserted in connection with such maintenance, repairs, replacements,
damage or injury or Tenant's breach of its obligations under this Section 7.1 or
Section 7.2. Tenant shall continue to pay Rent, without abatement, during any
period that repairs or replacements are performed or required to be performed by
Tenant. In the event Tenant fails, in the reasonable judgment of Landlord, to
maintain the Premises in good order, condition and repair, ordinary wear and
tear excepted, or otherwise satisfy its repair and replacement obligations,
Landlord shall have the right to perform such maintenance, repairs and
replacements at Tenant's expense. Tenant shall pay to Landlord on demand any
such cost or expense incurred by Landlord, together with interest thereon at the
Interest Rate from the date of demand until paid.
Section 7.2 All maintenance, repairs or replacements made by Tenant
pursuant to Section 7.1 shall be performed in a good and workmanlike manner by
contractors or other repair personnel satisfactory to Landlord. In no event
shall Tenant or its contractors or repair personnel do any work or permit any
work to be done affecting (i) the structural components of the Building, or (ii)
Building Systems. In no event shall such work be done for Landlord's account or
in a manner which allows any liens to be filed against the Project, or any
portion thereof. To the extent any maintenance, repairs or replacements involve
the making of alterations, Tenant shall comply with the provisions of Article 8.
ARTICLE 8. ALTERATIONS. Section 8.1 Tenant shall not make any
alterations to the Premises without first obtaining Landlord's written consent
thereto; provided, however, Tenant may make decorative or cosmetic changes
(e.g., installing shelving, hanging pictures, moving computer or telephone
cabling within the Premises) within the Premises without first obtaining
Landlord's consent, so long as the cost of such decorative or cosmetic changes
being performed at any one time do not exceed $1,000.00. In the event any such
proposed alteration would, in the reasonable judgment of Landlord, affect any
structural components of the Building or any of the Building Systems, Landlord
may withhold its consent to any such alteration in its sole discretion. Without
in any way limiting Landlord's consent rights, Landlord may withhold its final
consent to any alteration until (a) Landlord is satisfied that the contractor
proposed by Tenant to make such alterations, and the insurance coverage to be
provided by Contractor in connection with the work, are reasonably acceptable to
Landlord, (b) Landlord approves final and complete plans and specifications for
the work and (c) the appropriate governmental agency has approved the plans and
specifications for such work; provided, however, Landlord shall give its
preliminary consent, if at all, prior to Tenant obtaining such approval. Upon
Tenant's receipt of written consent from Landlord and any required consent of
any mortgagee or lessor of Landlord and any such governmental agency, and upon
Tenant's payment to Landlord of any fees charged by any mortgagee or lessor of
Landlord for such review and consent, Tenant shall have the right to proceed
with the construction of all approved alterations, but only so long as such
alterations are made by a contractor reasonably acceptable to Landlord in strict
compliance with plans and specifications to which Landlord has consented and
with the provisions of this Article 8. All alterations shall be made at Tenant's
sole cost and expense. Tenant shall keep the Project, the Building and the
Premises and Landlord's interest therein free from any liens arising from any
work performed, materials furnished, or obligations incurred by, or on behalf
of, Tenant. Notice is hereby given that neither Landlord nor any mortgagee or
lessor of Landlord shall be liable for any labor or materials furnished to
Tenant except as furnished to Tenant by Landlord pursuant to this Lease. Within
ten (10) business days after Tenant learns of the filing of any lien, Tenant
shall notify Landlord of such lien and shall either discharge and cancel such
lien of record or post a bond sufficient under the laws of the State of Georgia
to cause the lien to be canceled of record. If Tenant fails to so discharge or
bond over such lien within twenty (20) days after the earlier of Tenant becoming
aware of such lien or written demand from Landlord, Landlord shall have the
right, at Landlord's option, to pay the full amount of such lien without inquiry
into the validity thereof, and Landlord shall be promptly reimbursed by Tenant,
as Additional Rent, for all amounts so paid by Landlord, including expenses,
interest, and reasonable attorneys' fees actually incurred.
Section 8.2 All construction, alterations and repair work done by or
for Tenant shall: (a) be performed in such a manner as to maintain harmonious
labor relations; (b) not adversely affect any structural component of the
Building or any of the Building Systems or the safety of the Project, the
Building or the Premises; (c) comply with all building, safety, fire, plumbing,
electrical, and other codes and governmental and insurance requirements,
including, without limitation, ADA requirements; (d) not result in any usage in
excess of building standard water, electricity, gas, or other utilities or
heating, ventilating or air-conditioning (either during or after such work)
unless prior written arrangements satisfactory to Landlord are made with respect
thereto; (e) be completed promptly and in a good and workmanlike manner; and (f)
not disturb Landlord or other tenants in the Building. After completion of any
alterations to the Premises, Tenant will deliver to Landlord a copy of "as
built" plans and specifications depicting and describing such alterations.
Section 8.3 Landlord hereby reserves the right and at all times shall
have the right to repair, change, redecorate, alter, improve, modify, renovate,
enclose or make additions to any part of the Project (including, without
limitation, Common Areas and structural elements and load bearing elements
within the Premises) and to enclose and/or change the arrangement and/or
location of driveways or parking areas or landscaping or other Common Areas that
do not materially interfere with Tenant's ability to occupy the Premises, all
without being held guilty of an actual or constructive eviction of Tenant or
breach of the implied warranty of suitability or
4
of any term of this Lease and without an abatement of Rent. In the event
Landlord exercises its rights under this Section, Landlord shall use reasonable
efforts to minimize any disruption of Tenant.
ARTICLE 9. USE AND COMPLIANCE WITH LAWS. Section 9.1 The Premises shall
be used only for the Permitted Use, as restricted by the Restricted Uses, and
for no other purposes whatsoever. Tenant shall be responsible for determining
whether such use is in lawful and shall use and maintain the Premises in a
clean, careful, safe, lawful and proper manner and shall not allow within the
Premises, any offensive noise, odor, conduct or private or public nuisance or
permit Tenant's employees, agents, licensees or invitees to create a public or
private nuisance or act in a disorderly manner within the Building or in the
Project.
Section 9.2 Tenant shall, at Tenant's sole expense: (a) comply with all
laws, orders, ordinances, and regulations of federal, state, county, and
municipal authorities having jurisdiction over the Premises, including, without
limitation, the ADA and the making of any alterations to the Premises required
thereby; (b) comply with any directive, order or citation made pursuant to law
by any public officer requiring abatement of any nuisance caused by the
activities of Tenant or which imposes upon Landlord or Tenant any duty or
obligation arising from conditions which have been created by or at the request
or insistence of Tenant, or required by reason of a breach of any of Tenant's
obligations hereunder or by or through other fault of Tenant; (c) comply with
all customary insurance requirements applicable to the Premises; (d) comply with
the provisions of any covenants, conditions or restrictions applicable to the
Land or the Building; and (e) indemnify and hold Landlord harmless from any
loss, cost or claim or expenses which Landlord incurs or suffers by reason of
Tenant's failure to comply with its obligations under clauses (a), (b), (c) or
(d), above. If Tenant receives notice of any such directive, order citation or
of any violation of any law, order, ordinance, regulation, insurance
requirement, or any covenant, condition or restriction, Tenant shall promptly
notify Landlord in writing of such alleged violation and furnish Landlord with a
copy of such notice. Any alterations required to be made hereunder shall be made
in accordance with Article 8 of this Lease. Tenant shall have no liability for
any failure of the Building, as built by Landlord as of the date of this Lease,
to comply with the ADA, as presently interpreted and enforced.
Section 9.3 Tenant shall not use the Premises or any portion of the
Project for the storage, treatment, use, production or disposal of any Hazardous
Materials, other than those which might be incidental to and commonly used in
general executive administrative offices and which are stored or used in
accordance with all applicable laws, rules and regulations. Tenant does hereby
indemnify and hold Landlord harmless from and against any and all claims and
damages, including, without limitation, any damage to any property or injury to
or death of any person, arising as a result of Tenant's violation of the
foregoing provision. Tenant's indemnity shall include the obligation to
reimburse Landlord for any and all costs and expenses (including reasonable
attorneys' fees) reasonably incurred by Landlord, its agents or employees as a
result of Tenant's violation. Landlord shall not use the Project or any portion
thereof for the storage, treatment, use, production or disposal of any Hazardous
Materials, other than those which might be incidental to and commonly used in
general executive administrative offices and which are stored or used in
accordance with all applicable laws, rules and regulations. Landlord does hereby
indemnify and hold Tenant harmless from and against any and all claims and
damages, including, without limitation, any damage to any property or injury to
or death of any person, arising as a result of Landlord's violation of the
foregoing provision. Landlord's indemnity shall include the obligation to
reimburse Tenant for any and all costs and expenses (including reasonable
attorneys' fees) reasonably incurred by Tenant, its agents or employees as a
result of Landlord's violation. Except as may be disclosed in that certain Phase
I Environmental Assessment and Asbestos Survey dated on or about March 2, 1995
(Project No. 950239-01-05), that certain Phase II Environmental Assessment dated
on or about March 14, 1995 (Project No. 950239-01-05), that certain Phase I
Environmental Assessment Update dated May 28, 1998 (Project No. 980655-01) and
that certain Phase II Environmental Assessment dated July 7, 1998 (Project No.
980655-02), each prepared by United Consulting Group with respect to the area
referenced therein, which area includes the Land, Landlord does not have any
actual, present knowledge that any Hazardous Material is located on the Land in
violation of applicable law, as presently existing, interpreted and enforced.
Tenant hereby acknowledges receipt of a copy of each of the aforesaid
environmental reports, or executive summaries thereof prepared by United
Consulting Group. Landlord does not represent or warrant to Tenant that the
findings disclosed in any such reports or summaries are correct.
ARTICLE 10. DEFAULT AND REMEDIES. Section 10.1 The occurrence of any of
the events described below shall constitute a default by Tenant under this
Lease.
A. Failure to Pay Rent. The failure by Tenant to make payment of Rent
to Landlord when due; provided, however, the first two such failures
during any twelve (12) month period shall not constitute a default by
Tenant so long as Tenant makes each such payment within ten (10) days
after Landlord gives written notice of such failure, it being
acknowledged and agreed that any subsequent failure during such twelve
(12) month period to make payment of Rent when due shall immediately
constitute a default by Tenant without notice or an opportunity to
cure.
B. Failure to Perform. Except for a failure covered by Section 10.1(A),
any failure by Tenant to perform any provision of this Lease to be
performed by Tenant where such failure continues for thirty (30) days
after written notice from Landlord to Tenant, or, in the event such
failure cannot be performed within such thirty-day period, where such
failure continues beyond such additional time as may be reasonably
necessary to cure such failure, so long as Tenant commences such cure
promptly after such written notice and thereafter diligently prosecutes
such cure.
C. Bankruptcy, Insolvency, Etc. If Tenant or any Guarantor, (i) cannot
meet its obligations as they become due, (ii) becomes or is declared
insolvent according to any law, (iii) makes a transfer in fraud of
creditors according to any applicable law, (iv) assigns or conveys all
or a substantial portion of its property for the benefit of creditors
or (v) files a petition for relief under the Federal Bankruptcy Code or
any other present or future federal or state insolvency, bankruptcy or
similar law (collectively, "applicable bankruptcy law"); a receiver or
trustee is appointed for Tenant or Guarantor or its property, the
interest of Tenant or Guarantor under this Lease is levied on under
execution or under other legal process; any involuntary petition is
filed against Tenant or Guarantor under applicable bankruptcy law, or
any action is taken to reorganize or modify Tenant's or Guarantor's
capital structure if either Tenant or Guarantor be a corporation or
other entity (provided that no such levy, execution, legal process or
petition filed against Tenant or Guarantor shall constitute a breach of
this Lease if Tenant or Guarantor shall vigorously contest the same by
appropriate proceedings and shall remove or vacate the same within
ninety (90) days from the date of its creation, service or filing).
D. Intentionally omitted.
E. Dissolution or Liquidation. If Tenant is a corporation or
partnership, Tenant dissolves or liquidates or otherwise fails to
maintain its corporate or partnership structure, as applicable;
provided, however, that a merger of Tenant with another person or
entity in accordance with Article 6 of this Lease shall not be deemed a
default under this Section 10.1(E).
F. Unpermitted Assignment or Sublease. If Tenant makes or attempts to
make an unpermitted assignment of this Lease or sublease of all or any
portion of the Premises.
5
Section 10.2 Upon the occurrence of any default by Tenant specified in
Section 10.1 hereof or other default of Tenant, Landlord, at its option, may in
addition to all other rights and remedies provided herein or at law or in
equity, exercise one or more of the remedies set forth below:
A. Termination. Landlord may terminate this Lease by written notice to
Tenant in which event Tenant shall immediately surrender the Premises
to Landlord and if Tenant fails to do so, Landlord may without
prejudice to any other remedy which it may have for possession or
arrearages in Rent, enter upon and take possession of the Premises and
expel or remove Tenant and any other person who may be occupying said
Premises or any part thereof, without being liable for prosecution or
any claim of damages therefor. Upon any such termination, Tenant shall
be and remain liable for all obligations of Tenant arising or accruing
under this Lease prior to the time of termination and, in addition
thereto, for the amounts provided for in Section 10.2(D) hereof.
B. Terminate Possession. Landlord may terminate Tenant's right of
possession (without terminating this Lease), by written notice to
Tenant specifying the date of termination in such notice, and, on or
after such date, enter upon and take possession of the Premises and
expel or remove Tenant and any other person who may be occupying said
Premises or any part thereof, by entry, dispossessory suit or
otherwise, without thereby releasing Tenant from any liability
hereunder, without terminating this Lease, and without being liable for
prosecution of any claim of damages therefor, and, if Landlord so
elects, make such alterations, redecorations and repairs as, in
Landlord's reasonable judgment, may be necessary to relet the Premises,
and Landlord shall use commercially reasonable efforts to relet the
Premises or any portion thereof in Landlord's or Tenant's name, for
such term or terms (which may be for a term extending beyond the Lease
term under this Lease) and at such rental or rentals and upon such
other terms and conditions as Landlord in its sole, good faith,
discretion may deem advisable, with or without advertisement, or by
private negotiations, and receive the rent therefor. Upon each such
reletting, all rentals and other sums received by Landlord from such
reletting shall be applied, first, to the payment of any indebtedness
other than Rent due hereunder from Tenant to Landlord, second, to the
payment of any costs and expenses incurred by Landlord in connection
with any such reletting, including reasonable attorneys' fees actually
incurred (collectively, "Reletting Costs"); third, to the payment of
Rent and other charges due and unpaid hereunder; and the residue, if
any, shall be held by Landlord and applied in payment of future Rent as
the same may become due and payable hereunder. If such rentals and
other sums received from such reletting during any month are less than
the amount of Rent to be paid during that month by Tenant hereunder,
Tenant shall pay such deficiency to Landlord. Such deficiency shall be
calculated and paid monthly. If such rentals and the sums received from
such reletting during any month shall be more than the amount of Rent
to be paid during that month by Tenant hereunder, Tenant shall have no
right to, and shall receive no credit for, the excess. No such reentry
or taking of possession of the Premises by Landlord (whether through
entry, dispossessory suit or otherwise) shall be construed as an
election on Landlord's part to terminate this Lease unless a written
notice of such termination be given to Tenant. Notwithstanding any such
reletting without termination, Landlord may at any time elect by
written notice to Tenant to terminate this Lease for such previous
event of default.
C. Entry. Landlord may enter upon the Premises, without being liable
for prosecution or any claim of damages therefor, and do whatever
Tenant is obligated to do under the terms of this Lease, and Tenant
agrees to reimburse Landlord within ten (10) days after written demand
for any expenses including, without limitation, reasonable attorneys'
fees actually incurred, which Landlord may actually incur in thus
effecting compliance with Tenant's obligations under this Lease and
Tenant further agrees that Landlord shall not be liable for any damages
from such action.
D. Acceleration. If this Lease is terminated by Landlord as a result of
the occurrence of an event of default, Landlord may declare to be due
and payable immediately the excess of (a) the entire amount of Base
Rent which would, plus any Additional Rent which would reasonably be
expected to, become due and payable during the remainder of the Term
(determined as though the Lease has not been terminated) discounted to
present value by using a discount factor of seven and five-tenths
percent (7.5%) over (b) the then fair market rental value of the
Premises for the remainder of the Lease term discounted to present
value by using a discount factor of seven and five-tenths percent
(7.5%) per annum. Upon the acceleration of such amounts, Tenant agrees
to pay the same at once, in addition to Landlord's actual Reletting
Costs with respect to any portion of the Premises that has then been
relet by Landlord plus Landlord's reasonable estimate of Reletting
Costs that would be incurred to relet any portion of the Premises not
then relet (it being acknowledged, however, that Landlord shall not be
obligated to relet the Premises prior to exercising any rights or
remedies under this Section 10.2(D)), at Landlord's address as provided
herein. If Landlord exercises its rights under this Section 10.2(D),
Landlord and Tenant agree that the payment of the aforesaid accelerated
amount and Reletting Costs shall not constitute a penalty or forfeiture
but shall constitute liquidated damages for Tenant's failure to comply
with the terms and provisions of this Lease (Landlord and Tenant
agreeing that Landlord's actual damages in such event are impossible to
ascertain and that the amount set forth above is a reasonable estimate
thereof).
E. Self-Help. Landlord may, at its option, without waiving or releasing
Tenant from obligations of Tenant, make any such payment or perform any
such other act on behalf of Tenant. All sums so paid by Landlord, or
incurred by Landlord in effecting such performance or other act, and
all necessary incidental costs, together with interest thereon at the
Interest Rate, from the date of such payment by Landlord, shall be
payable to Landlord on demand. Tenant covenants to timely pay any such
sums.
F. Cumulative Remedies. Each and every right or remedy herein conferred
upon or reserved to Landlord shall be cumulative and in addition to any
other right or remedy given hereunder or now or hereafter existing at
law or in equity or by statute.
ARTICLE 11. INSURANCE. Section 11.1 Tenant covenants and agrees that
from and after the date of delivery of the Premises from Landlord to Tenant,
Tenant will carry and maintain, at its sole cost and expense, the following
insurance:
A. Public Liability Insurance. General Comprehensive Public
Liability Insurance covering the Premises and Tenant's use
thereof against claims for personal or bodily injury or death
or property damage occurring upon in or about the Premises
(including contractual, indemnity and liability coverage to
cover Tenant's indemnities set forth herein), such insurance
to insure both Tenant and, as additional named insureds,
Landlord and its subsidiaries, directors, agents and employees
and the property manager, and to afford protection to the
limit of not less than $2,000,000.00 combined single limit or
such higher limits as Landlord may require from time to time
during the Term, on an occurrence basis, in respect to injury
or death to any number of persons and broad form property
damage arising out of any one occurrence, operations hazard,
owner's protective coverage, contractual liability, with a
cross liability clause and a severability of interests clause
to cover Tenant's indemnities set forth herein, with a
deductible acceptable to Landlord. This insurance coverage
shall extend to any liability of Tenant arising out of the
indemnities provided for in this Lease.
6
B. Property Insurance. Property insurance on all-risk extended
coverage basis (including coverage against fire, wind,
tornado, vandalism, malicious mischief, water damage and
sprinkler leakage) covering the Leasehold Improvements and all
other improvements and alterations in the Premises and all
fixtures, equipment and personalty located in the Premises, in
an amount not less than one hundred percent (100%) of full
replacement cost thereof. Such policy will be written in the
names of Tenant, Landlord and any other parties reasonably
designated by Landlord from time to time, as their respective
interests may appear. The property insurance may provide for a
commercially reasonable deductible, not to exceed $10,000.00.
C. Workers Compensation Insurance. Worker's compensation
insurance insuring against and satisfying Tenant's obligations
and liabilities under the worker's compensation laws of the
State of Georgia.
D. Employers Liability Insurance. Employer's liability
insurance in an amount not less than $500,000.00.
E. Builder's Risk Insurance. In the event Tenant performs any
repairs or alterations in the Premises, Tenant will carry and
maintain Builder's Risk insurance on an "All Risk" basis
(including collapse) on a completed value (non-reporting) form
for full replacement value covering all work incorporated in
the Building and all materials and equipment in or about the
Premises.
F. Other Insurance. Any other form or forms of insurance or
any changes or endorsements to the insurance required herein
as Landlord, or any mortgagee or lessor of Landlord may
reasonably require from time to time in form or in amount
comparable to that required by owners of other office
buildings of similar, size, quality and in the general
vicinity of the Building.
Section 11.2 All such insurance will be issued and underwritten by
companies reasonably acceptable to Landlord and will contain endorsements that
(a) such insurance may not lapse with respect to Landlord or property manager or
be canceled or amended with respect to Landlord or property manager without the
insurance company giving Landlord and property manager at least thirty (30) days
prior written notice of such lapse, cancellation or amendment, (b) Tenant will
be solely responsible for payment of premiums, (c) Tenant's insurance is primary
in the event of overlapping coverage which may be carried by Landlord. In the
event other landlords of other office buildings in the greater Atlanta
metropolitan area require their tenants or occupants to obtain insurance having
coverage limits in excess of those described herein or to carry insurance
policies in addition to those described herein, Tenant shall, upon written
notice from Landlord, increase the coverage limits to an amount equal to such
limits, and obtain and maintain such additional insurance policies, as may be
described in Landlord's notice. Tenant shall deliver to Landlord duly executed
originals of the certificates of such insurance evidencing in-force coverage on
or before the Commencement Date. Further, Tenant shall deliver to Landlord
renewals thereof at least thirty (30) days prior to the expiration of the
respective policy terms.
Section 11.3 Tenant shall not knowingly conduct or permit to be
conducted in the Premises any activity, or place any equipment in or about the
Premises or the Building, which will invalidate the insurance coverage in effect
or increase the rate of casualty insurance or other insurance on the Premises or
the Building, and Tenant shall comply with all customary requirements and
regulations of Landlord's casualty and liability insurer. If any invalidation of
coverage or increase in the rate of casualty insurance or other insurance occurs
by any insurance company due to any act or omission by Tenant, or its agents,
employees, representatives, or contractors, such statement or threat shall be
conclusive evidence that the increase in such rate is due to the act of Tenant
or the contents or equipment in or about the Premises, and, as a result thereof,
Tenant shall be liable for such increase and such amount shall be considered
Additional Rent payable with the next monthly installment of Base Rent due under
this Lease. In no event shall Tenant introduce or permit to be kept on the
Premises or brought into the Building any dangerous, noxious, radioactive or
explosive substance.
Section 11.4 Landlord covenants and agrees that during the Term,
Landlord will carry and maintain the following insurance, the cost of which
shall be included in Operating Costs and Taxes:
A. Public Liability Insurance. General Comprehensive Public
Liability Insurance covering the Common Areas against claims
for personal or bodily injury or death or property damage
occurring upon, in or about the Common Areas (including
contractual, indemnity and liability coverage to cover
Landlord's indemnities set forth herein), such insurance to
afford protection to the limit of not less than $3,000,000
combined single limit or such higher limits as Landlord may
elect, at its option, to carry from time to time, on an
occurrence basis, in respect to injury or death to any number
of persons and broad form property damage arising out of any
one (1) occurrence, operations hazard, owner's protective
coverage, contractual liability, with a cross liability clause
and a severability of interests clause to cover Landlord's
indemnities set forth herein, with a commercially reasonable
deductible. This insurance coverage shall extend to any
liability of Landlord arising out of the indemnities provided
for in this Lease.
B. Property Insurance. Property insurance on all-risk extended
coverage basis (including coverage against fire, wind,
tornado, vandalism, malicious mischief, water damage and
sprinkler leakage) covering the Building in an amount not less
than ninety percent (90%) of full replacement cost thereof,
subject to a commercially reasonable deductible.
C. Other Insurance. Such other insurance as Landlord may
elect, at its option, to carry and maintain from time to time.
Section 11.5 Landlord and Tenant each hereby waive any right of
subrogation and right of recovery or cause of action for injury or loss to the
extent that such injury or loss is covered by fire, extended coverage, "All
Risk" or similar policies covering real property or personal property required
to be obtained and maintained hereunder (or which would have been covered if the
party claiming such right of subrogation or recovery or cause of action had
carried the insurance required by this Lease) or covered by any other insurance
maintained by the waiving party. Written notice of the terms of the above mutual
waivers shall be given to the insurance carriers of Landlord and Tenant and the
parties' insurance policies shall be properly endorsed, if necessary, to prevent
the invalidation of said policies by reason of such waivers.
ARTICLE 12. DAMAGE BY FIRE OR OTHER CASUALTY. Section 12.1 If the
Building or any portion thereof is damaged or destroyed by any casualty, to the
extent that, in Landlord's reasonable judgment, (a) repair of such damage or
destruction would not be economically feasible, or (b) the damage or destruction
to the Building cannot be repaired within one hundred eighty (180) days after
the date of such damage or destruction, or (c) if the proceeds from the
insurance remaining after any required payment to any mortgagee or lessor of
Landlord are insufficient to repair such damage or destruction, Landlord shall
have the right, at Landlord's option, to terminate this Lease by giving Tenant
notice of such termination, within the earlier of (i) sixty (60) days after the
date of such damage or destruction, or (15) days after the final settlement with
Landlord's insurance carrier. In the event that all or substantially all of the
Premises is damaged or
7
destroyed by any casualty and such damage or destruction cannot, with reasonable
efforts, be restored within one hundred eighty (180) days after the date of such
casualty in order to avoid such damage or destruction causing all or a
substantial portion of the Premises to be unusable by Tenant for the uses
permitted hereunder in which Tenant was engaged at the Premises immediately
prior to such casualty, and Tenant or Landlord, as the case may be, shows such
fact to the other party to a degree of certainty reasonably acceptable to such
other party, either Landlord or Tenant may terminate this Lease by delivering
written notice thereof to the other within fifteen (15) business days after the
date of the damage or destruction.
Section 12.2 If the Premises or any portion thereof is damaged or
destroyed by any casualty against which Tenant is required to be insured
hereunder, and if, in Landlord's reasonable opinion, the Premises cannot be
rebuilt or made fit for Tenant's purposes within one hundred eighty (180) days
after the date of such damage or destruction, or if the proceeds from the
insurance Landlord or Tenant is required to maintain hereunder (or the amount of
proceeds which would be available if the nonterminating party were carrying the
insurance required of such party hereunder) are insufficient to repair such
damage or destruction, then either Landlord or Tenant shall have the right, at
the option of either party, to terminate this Lease by giving the other written
notice within forty-five (45) days after such damage or destruction.
Section 12.3 In the event of partial destruction or damage to the
Building or the Premises which is not subject to Section 12.1 or 12.2 hereof, or
which is subject to Section 12.1 or 12.2 but the applicable party (or parties)
does not elect to terminate the Lease, which partial destruction or damage
renders the Premises partially but not wholly untenantable, this Lease shall not
terminate and Rent shall be abated in proportion to the area of the Premises
which, in Landlord's reasonable opinion, cannot be used or occupied by Tenant as
a result of such casualty. Landlord shall in such event, within a reasonable
time after the date of such destruction or damage, subject to force majeure or
to delays caused by Tenant and to the extent and availability of insurance
proceeds, restore the Premises to substantially the same condition as existed
prior to such partial damage or destruction, provided that, Tenant shall pay to
Landlord Tenant's insurance proceeds as required in Section 12.4. In no event
shall Rent xxxxx or shall Tenant have the right to terminate this Lease if the
damage to or destruction of the Premises is the result of the negligence or
willful act of Tenant, or Tenant's agents, employees, representatives,
contractors, successors, assigns, licensees or invitees; provided, however, that
if Landlord then carries and maintains rental abatement or similar insurance (it
being acknowledged, however, that Landlord shall have no obligation to carry
such insurance), the premiums of which are paid by Tenant and other tenants as a
part of Operating Costs, then Rent shall be abated to the extent Rent is paid to
Landlord by the provider of such insurance.
Section 12.4 Landlord shall have no liability to Tenant for
inconvenience, loss of business, or annoyance arising from any repair of any
portion of the Premises or the Building under this Article. If Landlord is
required by this Lease or by any mortgagee or lessor of Landlord to repair or if
Landlord undertakes to repair, Tenant shall pay to Landlord that amount of
Tenant's insurance proceeds (or the amount which would have been received by
Tenant if Tenant was carrying the insurance required by this Lease) which
insures such damage that Landlord is obligated to repair as a contribution
towards such repair, and Landlord shall use reasonable efforts to have such
repairs made promptly and in a manner which will not unnecessarily interfere
with Tenant's occupancy. In the event that Tenant collects any insurance
proceeds (or would have the right to collect such proceeds if Tenant had been
carrying the insurance policies required by this Lease) on account of damage or
destruction to the Leasehold Improvements, and such Leasehold Improvements are
not restored or repaired, either in whole or in part, then Tenant shall pay to
Landlord an equitable portion of such insurance proceeds (or those that would
have been payable to Tenant had it been carrying the insurance policies required
by this Lease) based on the ratio between the amount that Tenant expended in
connection with such Leasehold Improvements and the amount contributed by
Landlord thereto pursuant to the other terms hereof. The terms of the foregoing
sentence shall survive the termination or expiration of the Term of this Lease.
Section 12.5 In the event of termination of this Lease pursuant to
Section 12.1 or 12.2, then all Rent shall be apportioned and paid to the date of
such damage, and Tenant shall immediately vacate the Premises according to such
notice of termination; provided, however, that those provisions of this Lease
which are designated to cover matters of termination and the period thereafter
shall survive the termination hereof.
ARTICLE 13. CONDEMNATION. Section 13.1 In the event the whole or
substantially the whole of the Building or the Premises are taken or condemned
by eminent domain or by any conveyance in lieu thereof (such taking,
condemnation or conveyance in lieu thereof being hereinafter referred to as
"condemnation"), the Term shall cease and this Lease shall terminate on the
earlier of the date the condemning authority takes possession or the date title
vests in the condemning authority. In the event that all or substantially all of
the Premises is temporarily taken by eminent domain and such taking causes all
or a substantial portion of the Premises to be unusable by Tenant for a period
of one hundred eighty (180) consecutive days, and Tenant or Landlord, as the
case may be, shows such fact to the other party to a degree of certainty
reasonably acceptable to such other party, either Landlord or Tenant may
terminate this Lease by delivering written notice thereof to the other within
fifteen (15) business days after the taking, condemnation or sale in lieu
thereof.
Section 13.2 In the event any portion of the Building shall be taken by
condemnation (whether or not such taking includes any portion of the Premises),
which taking, in Landlord's reasonable and good faith judgment, is such that the
Building cannot be restored in an economically feasible manner for use
substantially as originally designed, then Landlord shall have the right, at
Landlord's option, to terminate this Lease, effective as of the later of (i) the
date of such taking, or (ii) ninety (90) days after written notice of
termination from Landlord to Tenant, unless the terms of such taking require
that such termination be effective on an earlier date, in which event the
termination shall be effective as of such earlier date.
Section 13.3 In the event that a portion, but less than substantially
the whole, of the Premises shall be taken by condemnation, then this Lease shall
be terminated as of the date of such condemnation as to the portion of the
Premises so taken, and unless Landlord exercises its option to terminate this
Lease pursuant to Section 13.2, this Lease shall remain in full force and effect
as to the remainder of the Premises. Notwithstanding the foregoing, if more than
thirty percent (30%) of the Premises RSF is taken, then either Landlord or
Tenant may terminate this Lease by delivering written notice thereof to the
other within fifteen (15) business days after the taking.
Section 13.4 In the event of termination of this Lease pursuant to the
provisions of Section 13.1 or 13.2 or 13.3, the Rent shall be apportioned as of
such date of termination; provided, however, that those provisions of this Lease
which are designated to cover matters of termination and the period thereafter
shall survive the termination hereof.
Section 13.5 All compensation awarded or paid upon a condemnation of
any portion of the Project shall belong to and be the property of Landlord
without participation by Tenant. Nothing herein shall be construed, however, to
preclude Tenant from prosecuting any claim directly against the condemning
authority for loss of business, loss of good will, moving expenses, damage to,
and cost of removal of, trade fixtures, furniture and other personal property
belonging to Tenant; provided, however, that Tenant shall make no claim which
shall diminish or adversely affect any award claimed or received by Landlord.
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Section 13.6 If any portion of the Project other than the Building is
taken by condemnation or if the temporary use or occupancy of all or any part of
the Premises shall be taken by condemnation during the Term, this Lease shall be
and remain unaffected by such condemnation, and Tenant shall continue to pay in
full the Rent payable hereunder. In the event of any such temporary taking for
use or occupancy of all or any part of the Premises, Tenant shall be entitled to
appear, claim, prove and receive the portion of the award for such taking that
represents compensation for use or occupancy of the Premises during the
remainder of the Term (provided that for purposes of determining such award, any
Extension Term shall be included in the "Term" only if Tenant has exercised its
right thereto prior to such temporary taking), and Landlord shall be entitled to
appear, claim, prove and receive the portion of the award that represents the
cost of restoration of the Premises and the use or occupancy of the Premises
after the end of the Term. In the event of any such condemnation of any portion
of the Project other than the Building, Landlord shall be entitled to appear,
claim, prove and receive all of that award.
ARTICLE 14. WAIVER AND INDEMNIFICATION. Section 14.1 Except with
respect to claims for indemnity pursuant to Section 14.2, below, Tenant hereby
waives all claims against Landlord for damage to any property or injury to, or
death of, any person in, upon, or about the Project, including the Premises.
Tenant shall and hereby agrees to, indemnify and hold Landlord harmless from any
loss or damage to any property or injury to, or death of, any person that (a)
arises out of, by reason of or in connection with (1) any construction or other
work undertaken by Tenant at the Premises, or (2) any breach of or event of
default under this Lease by Tenant, or (b) occurs in the Premises during the
Term, any period during which Tenant occupies or is in possession of the
Premises, or any period during which Tenant is performing any work within or is
given access to the Premises, except to the extent such damage, injury or death
is caused by the negligent act or willful misconduct of Landlord or its agents,
employees or contractors; provided, however, that this Section shall not be
deemed to make Tenant liable for, nor to require Tenant to indemnify Landlord
against or from, any consequential or special damages of Landlord, which shall
include without limitation any loss of business or loss of profits. Without
limiting the generality of the foregoing and notwithstanding the exceptions
thereto contained in the first sentence of this Section, the aforesaid waiver
shall apply to any injury to persons or property: (a) occurring in, upon, or
about the Project as a result of the condition or design of, or any defect in,
the Building or the Building Systems; and (b) caused by other tenants, occupants
or persons in the Building, the Project or the office park in which the Building
is located, and Tenant, for itself and its agents, employees, representatives,
contractors, successors, assigns, invitees and licensees, expressly assumes all
risks of injury or damage to person or property, whether proximate or remote,
that occurs within the Premises resulting from the condition of the Building or
the Building Systems.
Section 14.2 Except to the extent waived by Tenant pursuant to Section
14.1, above, Landlord shall and hereby agrees to indemnify and hold Tenant
harmless from any loss or damage to any property or injury to, or death of, any
person to the extent such loss, damage, injury or death arises out of, by reason
of or in connection with (a) and occurs during the pendency of, the performance
of any construction or other work undertaken by Landlord at the Project, (b) any
breach of or event of default under this Lease by Landlord, or (c) any negligent
act or willful misconduct on the part of Landlord or Landlord's agents,
employees, or contractors, except to the extent such loss, damage, injury or
death is caused by Tenant's failure to perform any duty or obligation of Tenant
expressly set forth in this Lease; provided, however, that this Section shall
not be deemed to make Landlord liable for, nor to require Landlord to indemnify
Tenant against or from, any consequential or special damages of Tenant, which
shall include without limitation any loss of business or loss of profits.
Section 14.3 The agreements of the parties with respect to waivers and
indemnities set forth in this Article are not intended to relieve, and shall not
be construed as relieving, any insurance carrier of its obligations under
policies carried by Landlord or Tenant, respectively. If either party fails to
maintain and carry the insurance required to be maintained and carried by such
party hereunder, such party shall automatically be deemed to have self-insured
with respect to such insurance, with the waiver of subrogation provided herein,
and such party shall be subject to those standards, obligations and duties to
which a third-party insurance carrier would be subject with respect thereto.
The terms and provisions of this Article 14 shall survive any termination of
this Lease and the expiration of the Term.
ARTICLE 15. SUBORDINATION; ESTOPPEL CERTIFICATES. Section 15.7 This
Lease and all rights of Tenant hereunder are subject and subordinate to all
underlying leases now or hereafter in existence, and to any supplements,
amendments, modifications, and extensions of such leases heretofore or hereafter
made and to any deeds to secure debt, mortgages, or other security instruments
which now or hereafter cover all or any portion of the Project or any interest
of Landlord therein, and to any advances made on the security thereof, and to
any increases, renewals, modifications, consolidations, replacements, and
extensions of any of such mortgages. The terms of this paragraph shall be
self-operative, and no further instruments or agreements of subordination shall
be required to effect such subordination. Notwithstanding the preceding
sentence, if Landlord or any mortgagee or lessor of Landlord requests such
further instruments or agreements, Tenant shall, within ten (10) business days
after Tenant's receipt or deemed receipt of Landlord's written request, execute,
acknowledge, and deliver to Landlord such further instruments or agreements
evidencing such subordination, and if Tenant fails to so execute, acknowledge
and deliver such instruments or agreements within such ten-business day period,
and such failure continues for ten (10) calendar days after Tenant's receipt or
deemed receipt of Landlord's additional written request, Landlord is hereby
empowered to do so in Tenant's name and on Tenant's behalf, Tenant hereby
irrevocably appoints Landlord as Tenant's agent and attorney-in-fact for the
purpose of executing, acknowledging, and delivering any such instruments and
agreements.
Section 15.8 Any mortgagee or lessor of Landlord shall have the right
at any time to subordinate any such mortgage or underlying lease to this Lease,
or to any of the provisions hereof, on such terms and subject to such conditions
as such mortgagee or lessor of Landlord may consider appropriate in its
discretion. At any time, before or after the institution of any proceedings for
the foreclosure of any such mortgage, or the sale of the Building under any such
mortgage, or the termination of any underlying lease, Tenant shall, upon request
of such mortgagee or any person or entities succeeding to the interest of such
mortgagee or the purchaser at any foreclosure sale ("Successor Landlord"),
automatically become the tenant of the Successor Landlord, without change in the
terms or other provisions of this Lease.
Section 15.9 Tenant shall, from time to time, within ten (10) business
days after Tenant's receipt or deemed receipt of written request from Landlord,
or from any mortgagee or lessor of Landlord, execute, acknowledge and deliver in
recordable form a certificate then furnished by Landlord certifying, to the
extent true, that this Lease is in full force and effect and unmodified (or, if
there have been modifications, that the same is in full force and effect as
modified and stating the modifications); that the Term has commenced and the
full amount of the Rent then accruing hereunder; the date to which the Rent has
been paid; that Tenant has accepted possession of the Premises and that, to the
best of Tenant's knowledge, any improvements required by the terms of this Lease
to be made by Landlord have been completed to the satisfaction of Tenant; the
amount, if any, that Tenant has paid to Landlord as a Security Deposit; that no
Rent under this Lease has been paid more than thirty (30) days in advance of its
due date; that Tenant, to the best of Tenant's knowledge as of the date of such
certificate, has no charge, lien, or claim of offset under this Lease or
otherwise against Rent or other charges due or to become due hereunder; that, to
the knowledge of Tenant, Landlord is not then in default under this Lease; and
such other matters as may be reasonably requested by Landlord or any mortgagee
or lessor of Landlord. Any such certificate may be relied upon by Landlord, any
Successor Landlord, or any mortgagee or lessor of Landlord. Landlord agrees
periodically to furnish, when reasonably requested in writing by Tenant,
certificates signed by Landlord containing information similar to the foregoing
information. If Tenant fails to timely execute, acknowledge and deliver such
certificate within ten (10) business days after Tenant's receipt or deemed
receipt of Landlord's request, and such failure continues for ten (10) calendar
days after Tenant's receipt or deemed receipt of Landlord's additional written
request, then the information set forth in such
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certificate so furnished by Landlord shall be deemed true and correct and
Landlord is hereby empowered to so execute, acknowledge and deliver such
certificate in Tenant's name and on Tenant's behalf, and Tenant hereby
irrevocably appoints Landlord as Tenant's agent and attorney-in-fact for the
purpose of executing, acknowledging, and delivering any such certificate.
ARTICLE 16. SURRENDER OF THE PREMISES. Section 16.1 Upon the expiration
of the Term or earlier termination of this Lease, or upon any re-entry of the
Premises by Landlord without terminating this Lease pursuant to the terms
hereof, Tenant, at Tenant's sole cost and expense, shall peacefully vacate and
surrender the Premises to Landlord in good order, broom clean and in the same
condition as at the beginning of the Term or as the Premises may thereafter have
been improved by Landlord or Tenant (provided that Tenant's improvements were
made with Landlord's consent without the condition that such improvements be
removed upon surrender), reasonable use and ordinary wear and tear thereof and
repairs which are Landlord's obligations under this Lease excepted, and also
excepting loss by fire and other casualty and loss or damage caused by the
negligent act or willful misconduct of Landlord, and Tenant shall remove all of
Tenant's Property and such other property as is contemplated by Section 16.2
hereof and turn over all keys for the Premises to Landlord. Should Tenant
continue to hold the Premises after the expiration of the Term or earlier
termination of this Lease, such holding over, unless otherwise agreed to by
Landlord in writing, shall constitute and be construed as a tenancy at
sufferance at monthly installments of Base Rent equal to the greater of one
hundred fifty percent (150%) of the monthly portion of Base Rent in effect as of
the date of such expiration or earlier termination or one hundred fifty percent
(150%) of the fair market rental value of the Premises, and subject to all of
the other terms, charges and expenses set forth herein (including the payment of
Tenant's Share of Excess Operating Costs and Taxes) except any right to extend
the term of this Lease and any right with respect to other space (including,
without limitation, any right of first refusal, right of first offer or similar
right and any right to expand the Premises). Unless Landlord consents in writing
to such holding over, Tenant shall also be liable to Landlord for all actual and
direct damage (excluding consequential or special damages) which Landlord
suffers because of any holding over by Tenant, and Tenant shall indemnify
Landlord against all claims made by any other tenant or prospective tenant
against Landlord resulting from delay by Landlord in delivering possession of
the Premises to such other tenant or prospective tenant. The provisions of this
Article 16 shall survive the expiration of the Term or earlier termination of
this Lease.
Section 16.2 All Leasehold Improvements, alterations and other physical
additions made to or installed by or for Tenant in the Premises shall be and
remain Landlord's property (except for Tenant's furniture, personal property,
and movable trade fixtures) and shall not be removed without Landlord's written
consent. Tenant agrees to remove, at its sole cost and expense, all of Tenant's
furniture, personal property, and movable trade fixtures, and, if directed to or
permitted to do so by Landlord in writing, all, or any part of, the removable
Leasehold Improvements, alterations and other physical additions made by or on
behalf of Tenant to the Premises (including, without limitation, all cabling and
wiring for computer systems, telephones and the like whether located above the
finished ceiling or underneath the floor), on or before the expiration of the
Term or any earlier date of termination of this Lease. Tenant shall repair, or
promptly reimburse Landlord for the actual cost incurred or paid by Landlord for
repairing all damage caused to the Premises or the Building by such removal. Any
Leasehold Improvements, alterations or physical additions made by or on behalf
of Tenant which Landlord does not direct or permit Tenant to remove at any time
during or at the end of the Term shall become the property of Landlord at the
end of the Term without any payment to Tenant. If Tenant fails to remove any of
Tenant's furniture, personal property or movable trade fixtures by the
expiration of the Term or any sooner date of termination of the Lease or, if
Tenant fails to remove any Leasehold Improvements, alterations and other
physical additions made by or on behalf of Tenant to the Premises which Landlord
has in writing directed Tenant to remove (including without limitation, all
cabling and wiring for computer systems, telephones and the like whether located
above the finished ceiling or underneath the floor), Landlord shall have the
right, on the fifth (5th) business day after Landlord's delivery of written
notice to Tenant to deem such property abandoned by Tenant and to remove, store,
sell, discard or otherwise deal with or dispose of such abandoned property in a
commercially reasonable manner. Tenant shall be liable for all costs of such
removal, storage, sale, discarding or other dealing or disposition of Tenant's
abandoned property, and Landlord shall have no liability to Tenant in any
respect regarding such property of Tenant. The provisions of this Section 16.2
shall survive the expiration or any earlier termination of this Lease.
ARTICLE 17. BROKERAGE. Tenant and Landlord each represent and warrant
to the other that it has not entered into any agreement with, or otherwise had
any dealings with, any broker or agent in connection with the negotiation or
execution of this Lease which could form the basis of any claim by any such
broker or agent for a brokerage fee or commission, finder's fee, or any other
compensation of any kind or nature in connection herewith, other than with the
Brokers and each party shall, and hereby agrees to, indemnify and hold the other
harmless from all costs (including court costs, investigation costs, and
attorneys' fees), expenses, or liability for commissions or other compensation
claimed by any broker or agent with respect to this Lease which arise out of any
agreement or dealings, or alleged agreement or dealings, between the
indemnifying party and any such agent or broker, other than with Brokers. This
provision shall survive the expiration or earlier termination of this Lease.
Landlord shall pay a commission to Landlord's Broker in accordance with a
separate written agreement with Landlord's Broker and shall pay a commission to
Tenant's Broker in accordance with the terms thereof or of a separate written
agreement between Landlord and Tenant's Broker. All brokers, including Brokers,
shall be required to execute and deliver lien waivers as a condition of payment.
The parties hereto acknowledges that Landlord's Broker is acting as agent for
Landlord in this transaction and that Tenant's Broker is acting as agent for
Tenant in this transaction.
ARTICLE 18. NOTICES. All notices, consents, demands, requests,
documents, or other communications (other than payment of Rent) required or
permitted hereunder (collectively, "notices") shall be deemed given, whether
actually received or not, when dispatched for local hand delivery or one (1)
Business Day after deposited for delivery by air or next-day express courier
(with signed receipts) to the other party, or on the third Business Day after
deposit in the United States mail, postage prepaid, certified, return receipt
requested, except for notice of change of address which shall be deemed given
only upon actual receipt. Notices may be given by facsimile, so long as a copy
is provided otherwise in accordance with the terms hereof. The time period for
any action or response to any notice shall begin upon actual receipt of such
notice (with receipt of a facsimile copy not constituting receipt for purposes
of commencing any such period), with rejection or other refusal, or, in the
event the recipient party has changed addresses and not given the other party
written notice thereof in accordance herewith, delivery or attempted delivery to
the last address of the recipient party for which the other party has received
written notice, being deemed receipt. The addresses of the parties for notices
shall be the addresses set forth in Article 1 hereof, or such other address
subsequently specified by each party in notices given pursuant to this Article
18. In the event that Tenant specifies the Premises as its address for notices
in accordance with the preceding sentence, then notices delivered to the
Premises, whether or not Tenant is in occupancy thereof, shall be deemed to have
been effectively given in accordance with the terms of this Lease.
ARTICLE 19. BANKRUPTCY. Tenant acknowledges that this Lease is a lease
of nonresidential real property and therefore agrees that Tenant, as the debtor
in possession, or the trustee for Tenant (collectively the "Trustee") in any
proceeding under Title 11 of the United State Bankruptcy Code relating to
Bankruptcy, as amended (the "Bankruptcy Code"), shall not seek or request any
extension of time to assume or reject this Lease or to perform any obligations
of this Lease which arise from or after the order of relief.
A. If the Trustee proposes to assume or to assign this Lease or sublet
the Premises (or any portion thereof) to any person which shall have made a bona
fide offer to accept an assignment of this Lease or a subletting on terms
acceptable to the Trustee, the Trustee shall give Landlord, and lessors and
mortgagees of Landlord of which Tenant has notice, written notice setting forth
the name and address of such person and the terms and conditions of such offer,
no later than twenty (20) days after receipt of such offer, but in any event no
later then ten (10) days prior to the date on which the Trustee makes
application to the Bankruptcy Court for authority and approval to enter into
such
10
assumption and assignment or subletting. Landlord shall have the prior right and
option, to be exercised by written notice to the Trustee given at any time prior
to the effective date of such proposed assignment or subletting, to accept an
assignment of this Lease or subletting of the Premises upon the same terms and
conditions and for the same consideration, if any, as the bona fide offer made
by such person, less any brokerage commissions which may be payable out of the
consideration to be paid by such person for the assignment or subletting of this
Lease. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code shall be deemed, without further act or deed,
to have assumed all of the obligations arising under this Lease and each of the
conditions and provisions hereof on and after the date of such assignment. Any
such assignee shall, upon the request of Landlord, forthwith execute and deliver
to Landlord an instrument, in form and substance acceptable to Landlord,
confirming such assumption.
B. The Trustee shall have the right to assume Tenant's rights and
obligations under this Lease only if the Trustee: (a) promptly cures or provides
adequate assurance that the Trustee will promptly cure any default under the
Lease; (b) compensates or provides adequate assurance that the Trustee will
promptly compensate Landlord for any actual pecuniary loss incurred by Landlord
as a result of Tenant's default under this Lease; and (c) provides adequate
assurance of future performance under the Lease. Adequate assurance of future
performance by the proposed assignee shall include, as a minimum, that: (i) the
Trustee or any proposed assignee of the Lease shall deliver to Landlord a
security deposit in an amount equal to at least three (3) months' Rent accruing
under the Lease; (ii) any proposed assignee of the Lease shall provide to
Landlord an audited financial statement, or, if such audited statement is not
available, a financial statement certified to Landlord by the chief financial
officer of the proposed assignee as being true and correct and prepared in
accordance with generally accepted accounting principles; in any event, such
financial statement shall be dated no earlier than six (6) months prior to the
effective date of such proposed assignment and shall be accompanied by a
certificate of such chief financial officer to Landlord that there has been no
material change in the financial condition of the proposed assignee as of the
effective date of such assignment, and such financial statement shall show the
proposed assignee to have a net worth equal to at least twelve (12) months' Rent
accruing under the Lease, or, in the alternative, the proposed assignee shall
provide a guarantor of such proposed assignee's obligations under the Lease,
which guarantor shall provide an audited financial statement meeting the
requirements of (ii) above and shall execute and deliver to Landlord a guaranty
agreement in form and substance acceptable to Landlord; and (iii) any proposed
assignee shall grant to Landlord a security interest in favor of Landlord in all
furniture, fixtures, and other personal property to be used by such proposed
assignee in the Premises. All payments required of Tenant under this Lease,
whether or not expressly denominated as such in this Lease, shall constitute
rent for the purposes of Title 11 of the Bankruptcy Code.
C. The parties agree that for the purposes of the Bankruptcy Code
relating to (a) the obligation of the Trustee to provide adequate assurance that
the Trustee will "promptly" cure defaults and compensate Landlord for actual
pecuniary loss, the word "promptly" shall mean that cure of defaults and
compensation will occur no later than sixty (60) days following the filing of
any motion or application to assume this Lease; and (b) the obligation of the
Trustee to compensate or to provide adequate assurance that the Trustee will
promptly compensate Landlord for "actual pecuniary loss," the term "actual
pecuniary loss" shall mean, in addition to any other provisions contained herein
relating to Landlord's damages upon default, payments of Rent, including
interest at the Interest Rate on all unpaid Rent, all reasonable attorneys' fees
and all related costs of Landlord incurred in connection with any default of
Tenant in connection with Tenant' s bankruptcy proceedings.
ARTICLE 20. MISCELLANEOUS. Section 20.10 Professional Fees. In any
action or proceeding brought by either party against the other under this Lease,
the prevailing party shall be entitled to recover from the other party its
reasonable professional fees for attorneys, appraisers and accountants, its
investigation costs, and any other legal expenses and court costs actually
incurred by the prevailing party in such action or proceeding.
Section 20.11 Severability, Headings. Every agreement contained in this
Lease is, and shall be construed as, a separate and independent agreement. If
any term of this Lease or the application thereof to any person or circumstances
shall be invalid or unenforceable, the remaining agreements contained in this
Lease shall not be affected. The article headings contained in this Lease are
for convenience only and shall not enlarge or limit the scope or meaning of the
various and several articles hereof. Words in the singular number shall be held
to include the plural, unless the context otherwise requires.
Section 20.12 Non-Merger. There shall be no merger of this Lease with
any ground leasehold interest or the fee estate in the Project or any part
thereof by reason of the fact that the same person may acquire or hold, directly
or indirectly, this Lease or any interest in this Lease as well as any ground
leasehold interest or fee estate.
Section 20.13 Landlord's Liability. Anything contained in this Lease to
the contrary notwithstanding, Tenant agrees that Tenant shall look solely to the
estate and property of Landlord in the Building (and (i) in the event of a sale
of the Building by Landlord, the proceeds of such sale, and (ii) the actual
rents received by Landlord from the Building from and after the date of any
money judgment against Landlord) for the collection of any judgment or other
judicial process requiring the payment of money by Landlord. In no event shall
either Landlord or any partners, shareholders, or other principals of Landlord,
or any officers or employees of Landlord be personally responsible or liable for
the payment of any such judgment or process, and, subject to the preceding
sentence, the assets of any such party or person shall not be subject to levy,
execution or other judicial process for the satisfaction thereof. The term
"Landlord", as used in this Lease, so far as covenants or obligations on the
part of Landlord are concerned, shall be limited to mean and include only the
owner or owners, at the time in question, of the fee title to, or a lessee's
interest in a ground lease of, the Land or the Building. In the event of any
assignment, conveyance or other transfer of any such title or interest (each of
which may be effected without Tenant's consent), Landlord herein named (and in
case of any subsequent transfers or conveyances, the then grantor) shall be
automatically freed and relieved from and after the date of such transfer,
assignment or conveyance of all liability as respects the performance of any
covenants or obligations on the part of Landlord contained in this Lease
thereafter to be performed.
Section 20.14 Force Majeure. Whenever a period of time is herein
prescribed for action to be taken by Landlord or Tenant, Landlord or Tenant
shall not be liable or responsible for, and there shall be excluded from the
computation for any such period of time, any delays due to force majeure, which
term shall include strikes, riots, acts of God, shortages of labor or materials,
war, governmental approvals, laws, regulations, or restrictions, or any other
cause of any kind whatsoever which is beyond the reasonable control of Landlord
or Tenant, as the case may be. Force Majeure shall not excuse or delay Tenant's
obligation to pay Rent or any other amount due under this Lease.
Section 20.15 Successors and Assigns. All agreements and covenants
herein contained shall be binding upon the respective heirs, personal
representatives, successors and assigns of the parties hereto. If there be more
than one Tenant, the obligations hereunder imposed upon Tenant shall be joint
and several. Notwithstanding the foregoing, nothing contained in this Section
20.6 shall be deemed to override Article 6.
Section 20.16 Authority. If either party signs as a corporation,
execution hereof shall constitute a representation and warranty by such party to
the other that such party is a duly organized and existing corporation, that
such party has been and is qualified to do business in the State of Georgia and
in good standing with the State of Georgia, that the corporation has full right
and authority to enter into
11
this Lease, and that all persons signing on behalf of the corporation were
authorized to do so by appropriate corporate action. If either party signs as a
partnership, trust, or other legal entity, execution hereof shall constitute a
representation and warranty by such party to the other that such party has
complied with all applicable laws, rules, and governmental regulations relative
to such party's right to do business in the State of Georgia, that such entity
has the full right and authority to enter into this Lease, and that all persons
signing on behalf of such entity were authorized to do so by any and all
necessary or appropriate partnership, trust, or other legal entity.
Section 20.17 Governing Law. This Lease shall be governed by and
construed under the laws of the State of Georgia.
Section 20.18 Time of Essence. Time is of the essence of this Lease.
Section 20.19 Relationship. This Lease shall only create the
relationship of landlord and tenant between Landlord and Tenant. No estate shall
pass out of Landlord, and Tenant shall have only an usufruct, not subject to
levy and sale and not assignable in whole or in part by Tenant (except as
expressly provided herein).
Section 20.20 Landlord's Right to Inspect. Landlord shall retain
duplicate keys to all doors of the Premises. Tenant shall provide Landlord with
new keys should Tenant receive Landlord's consent to change the locks. Landlord
shall have the right to enter the Premises at reasonable hours and upon
reasonable prior notice (or, in the event of an emergency or at any time that an
event of default on the part of Tenant is outstanding, at any hour and without
notice) for any reasonable purpose, including, without limitation, the following
purposes: (a) to exhibit the same to present or prospective mortgagees, lessors
or purchasers during the Term and to prospective tenants during the last nine
(9) months of the Term; (b) to inspect the Premises; (c) to confirm that Tenant
is complying with all of Tenant's covenants and obligations under this Lease;
(d) to clean or make repairs required of Landlord under the terms of this
Lease;, (e) to make repairs to areas adjoining the Premises; and (f) to repair
and service utility lines or other components of the Building. Landlord shall
not be liable to Tenant for the exercise of Landlord's rights under this Section
20.11 and Tenant hereby waives any claims for damages for any injury,
inconvenience or interference with Tenant's business, any loss of occupancy or
quiet enjoyment of the Premises, and any other loss occasioned thereby. In
exercising the rights under this Section 20.11, Landlord shall use reasonable
efforts not to materially disrupt or interfere with Tenant's occupancy of the
Premises.
Section 20.21 Security Deposit. Landlord shall not initially require a
security deposit from Tenant, and Tenant acknowledges that Tenant has not paid
any security deposit to Landlord under this Lease. In the event of any default
by Tenant under this Lease that is not cured within the applicable cure period,
then, upon expiration of the cure period with respect to such default, Tenant
shall immediately pay to Landlord, in cash, an amount equal to one month's
installment of Base Rent then payable hereunder as and for a security deposit
for the full and faithful performance by Tenant of each and every term, covenant
and condition of this Lease. Tenant shall not be entitled to any interest on the
security deposit. It is expressly understood and agreed that any such deposit
will not be deemed to be an advance rental deposit or a measure of Landlord's
damages in case of Tenant's default. Actions by Landlord against Tenant for
breach of this Lease shall in no way be limited or restricted by the amount of
the security deposit and neither the payment of such security deposit to
Landlord nor Landlord's election to resort to such deposit in the event of a
default hereunder shall be deemed a waiver of any other rights, or constitute an
election of remedies, by Landlord.
Upon the occurrence of any event of default by Tenant, Landlord shall
have the right, without prejudice to any other remedy, to use the security
deposit, if any, or portions thereof, to the extent necessary to pay any
arrearages in Rent, and any other damage, injury or expense. Following any such
application of all or any portion of the security deposit, Tenant shall pay to
Landlord, on demand, the amount so applied in order to restore the security
deposit to its original amount. If Tenant is not in default at the expiration of
the Term or the termination of this Lease, any remaining balance of the security
deposit not so used by Landlord shall be returned to Tenant, provided that
Tenant timely surrenders the Premises without damage and otherwise in accordance
with Article 17 hereof. If Landlord transfers an interest in the Premises during
the Term, Landlord may assign the security deposit to the transferee, and, in
such event, Landlord shall thereafter have no further liability to Tenant for
the security deposit.
Section 20.22 Observance of Rules and Regulations. Subject to the other
terms hereof, Tenant and Tenant's servants employees, agents, visitors, and
licensees shall observe faithfully and comply strictly with all Rules and
Regulations (herein so called) attached to this Lease as Exhibit "D", as such
Rules and Regulations may be changed from time to time. Landlord shall at all
times have the right to make reasonable changes in and additions to such Rules
and Regulations, provided Landlord gives Tenant prior notice of such changes and
provided that such new rules and regulations or changes in existing rules and
regulations do not materially adversely limit the rights of Tenant set forth in
the Lease.
Section 20.23 Parking. The parking area available to Tenant, its
employees, customers and agents shall be designated on a non-exclusive,
unreserved basis for all Project tenants (including Tenant) and their respective
employees, customers, invitees and visitors. Parking and delivery areas for all
vehicles shall be in accordance with parking regulations established from time
to time by Landlord, with which Tenant agrees to comply. Tenant shall only
permit parking by its employees, customers, agents, invitees and visitors.
Tenant and its employees, customers, agents, invitees and visitors may park in
up to four (4) spaces per one thousand square feet of Premises RSF without
charge throughout the Term. In the event the number of parking spaces used by
Tenant, its employees, customers, agents, invitees and visitors exceeds such
number of parking spaces, Landlord may furnish written notice thereof to Tenant,
and Tenant shall promptly thereafter cause a reduction in the number of vehicles
parked in the parking area that are attributable to Tenant, its employees,
customers, agents, invitees and visitors such that the number of vehicles does
not exceed such number of parking spaces. Landlord, at its option, may elect to
require that the vehicles parked in such designated parking spaces that are
attributable to Tenant and its employees, or otherwise parked therein, display a
permit or other means of identification to be issued by Landlord, and in such
event, Tenant shall cause such vehicles attributable to Tenant and its employees
to display such permit while parked in such designated parking spaces.
Notwithstanding the foregoing, Landlord reserves the right to designate certain
portions of the parking areas on a reserved, exclusive basis, including, without
limitation, for handicapped parking, vans, visitors, cycles, other reserved,
courier and loading purposes.
Section 20.24 Quiet Enjoyment. Landlord covenants and agrees that, so
long as Tenant is not in default hereunder, Landlord shall not interfere with
Tenant's quiet and peaceful possession of the Premises.
Section 20.25 Intentionally omitted.
Section 20.26 Exhibits; Entire Agreement; Amendments. Each of the
exhibits attached hereto, and each of the terms and provisions set forth
therein, are hereby incorporated herein, and shall be deemed to a part of this
Lease as if fully set forth herein. This Lease and the exhibits attached hereto
set forth the entire agreement between the parties and cancel all prior
negotiations, arrangements, brochures, agreements, and understandings, if any,
between Landlord and Tenant regarding the subject matter of this Lease, it being
acknowledged that this Lease is a full and final integration of the agreement of
the parties hereto. Neither Landlord nor Landlord's agents or brokers have made
12
any representations or promises with respect to the Premises, the Building, the
parking facilities, the Land, or any other portions of the Project except as
herein expressly set forth and all reliance with respect to any representations
or promises is based solely on those contained herein. No rights, easements, or
licenses are acquired by Tenant under this Lease by implication or otherwise
except as, and unless, expressly set forth in this Lease. No amendment or
modification of this Lease shall be binding or valid unless expressed in writing
and executed by both parties hereto.
13
IN WITNESS WHEREOF, Landlord and Tenant have set their hands and seals
hereunto and have caused this Lease to be executed by duly authorized officials
thereof, as of the day and year set forth on the cover page hereof.
LANDLORD:
--------
NORTHWINDS CENTER, L.P.
By: P & L Pool Six, L.L.C., its general partner
By: Xxxx & Land Enterprises, Inc., its manager
Date Executed by Landlord: By:
----- -------------------------
Name: Xxxxx D. Little III
Title: Vice President
[CORPORATE SEAL]
TENANT:
------
FUTURE HORIZONS, INC.
Date Executed by Tenant: By:
------- ----------------------------
Name:
-----------------------
Title:
----------------------
[CORPORATE SEAL]
EXHIBIT "A"
FLOOR PLAN OF THE PREMISES
(See attached Floor Plan)
Exhibit "A"
(Page 1 of 2)
EXHIBIT "B"
LEASEHOLD IMPROVEMENTS
PARAGRAPH 1. DESIGN; CONSTRUCTION. 1.01 If such space plan has not been
approved prior to the date of this Lease, then promptly after the date of this
Lease, Tenant shall consult with Corporate Design International (the "Leasehold
Improvements Architect"), which architect is hereby approved by Tenant, and,
working with said architect, develop a space plan for the initial tenant
improvements desired by Tenant and deliver same to Landlord within five (5)
business days after the date of this Lease for Landlord's approval in accordance
with the provisions of paragraph 3 of this Exhibit "B".
1.02 If the space plan has been approved prior to the date of this
Lease, then promptly after the date of this Lease, or otherwise promptly after
the approval of the space plan, Landlord shall cause the Leasehold Improvements
Architect to prepare preliminary plans and specifications for the initial tenant
improvements desired by Tenant and to deliver same to Landlord and Tenant for
approval in accordance with the provisions of paragraph 3 of this Exhibit "B".
1.03 Promptly after approval, or deemed approval, of such preliminary
plans and specifications, Landlord shall cause the Leasehold Improvements
Architect to prepare construction drawings for the initial tenant improvements
desired by Tenant and to deliver same to Landlord and Tenant for approval in
accordance with the provisions of paragraph 3 of this Exhibit "B". The
construction drawings approved, or deemed approved, by Landlord and Tenant are
herein referred to as the "Approved Construction Drawings". The Approved
Construction Drawings may only be modified by a written change order executed by
Landlord and Tenant; upon the execution and delivery of any such change order,
the term "Approved Construction Drawings" shall mean the Approved Construction
Drawings as existing as of the date of such change order execution and delivery,
as modified by such change order. The initial tenant improvements depicted on
the Approved Construction Drawings are herein referred to as the "Leasehold
Improvements". In all events, Landlord and Tenant shall use all reasonable, good
faith efforts to cause the construction drawings to be approved, or deemed
approved, by Landlord and Tenant on or before February 23, 1999 (the "Approved
Construction Drawing Deadline") for submittal to the appropriate governmental
authorities for permitting and to the selected general contractors and
subcontractors for bidding purposes.
1.04 The general contractor for the construction and installation of
the Leasehold Improvements shall be Tower Construction, which general contractor
is hereby approved by Tenant, or, in the event Tower Construction does not
perform such work, such other general contractor as is reasonably acceptable to
Tenant (either Tower Construction or such other general contractor, as the case
may be, is herein referred to as the "General Contractor"). With respect to the
construction and installation of the Leasehold Improvements, the General
Contractor shall be under the sole direction of Landlord and Landlord's
employees, contractors, subcontractors and agents. Tenant shall cooperate with
Landlord and Landlord's contractors, employees, agents and other persons in
order to promote the efficient and expeditious completion of such work.
1.05 Tenant hereby acknowledges and agrees that Landlord has retained
the Leasehold Improvements Architect and the General Contractor as an
accommodation to Tenant in order to, among other things, expedite the design,
construction and installation of the Leasehold Improvements, that Landlord is
not acting in the capacity of a contractor or an architect, that Tenant will, in
accordance with the foregoing review and approval process, have sufficient
opportunity to examine architectural drawings and to consult Tenant's architects
and consultants if Tenant desires to do so, and that during the construction and
installation of the Leasehold Improvements Tenant will, in accordance with
paragraph 1.06, below, have sufficient opportunity to examine same and to
consult Tenant's construction or other consultants if Tenant desires to do so.
Effective upon the issuance of the certificate of occupancy for the Premises,
Landlord hereby assigns to Tenant, on a non-exclusive basis (Landlord also
retaining the benefit for Landlord), the benefit of any General Contractor
warranty to repair or replace defective workmanship or materials in the
Leasehold Improvements and the benefit of any Leasehold Improvements Architect
warranty with respect to the design of the Leasehold Improvements, and upon
Tenant's request, Landlord shall make the written agreement between Landlord and
the Leasehold Improvements Architect and between Landlord and the General
Contractor available to Tenant for Tenant's review of the warranty provisions
thereof, but in all events LANDLORD DOES NOT MAKE AND HEREBY DISCLAIMS, AND
TENANT ACKNOWLEDGES THAT LANDLORD HAS NOT MADE AND HAS DISCLAIMED, ANY
REPRESENTATION, WARRANTY OR GUARANTEE, EXPRESS OR IMPLIED, WITH RESPECT TO THE
DESIGN AND THE CONSTRUCTION AND INSTALLATION OF THE LEASEHOLD IMPROVEMENTS,
INCLUDING, WITHOUT LIMITATION, THE PRESENT OR FUTURE MERCHANTABILITY, CONDITION,
QUALITY, DURABILITY, FITNESS OR SUITABILITY THEREOF OR ANY PART THEREOF IN ANY
RESPECT OR IN CONNECTION WITH OR FOR THE PURPOSES AND USES OF TENANT, AND
LANDLORD SHALL NOT BE LIABLE FOR ANY LATENT OR PATENT DEFECT THEREIN.
1.06 At reasonable times, and with a frequency, acceptable to Landlord
during the construction and installation of the Leasehold Improvements, Tenant
may examine the Leasehold Improvements. In entering the Project to effect such
examination, Tenant shall not cause any delay or disruption in the construction
or installation of the Leasehold Improvements and shall not interfere with the
General Contractor or any subcontractor in any manner whatsoever. In connection
with such examination, Tenant hereby waives all claims against Landlord, the
General Contractor and any subcontractor for damage to any property or injury
to, or death of, any person in, upon, or about the Project, including the
Premises, and Tenant shall and hereby agrees to, indemnify and hold Landlord,
the General Contractor and any subcontractor harmless from any loss or damage to
any property or injury to, or death of, any person that occurs in upon, or about
the Project, including the Premises, arising out of, by reason of or in
connection with the entry onto the Project by Tenant or its employees,
contractors or agents prior to the Commencement Date. Nothing contained in this
paragraph shall be deemed to limit or modify in any manner the terms and
provisions of Tenant's waiver and indemnity set forth in Article 14 of this
Lease.
1.07 Notwithstanding anything to the contrary contained herein,
Landlord shall provide at its cost the "Shell Improvements", which shall consist
of the following items: (a) the corridors, toilets, lobbies and other Common
Areas on the floor on which the Premises is to be located; (b) HVAC spin outs
and flex in place, and perimeter diffusers set, in the Premises ceiling; (c)
ceiling grid in place with ceiling tile stacked on the Premises floor; (d)
Building standard light fixtures (one fixture for each 100 usable square feet of
the Premises) stacked on the Premises floor and made ready to install at
Tenant's cost; (e) the sprinkler line serving the Premises in place and capped
per base building design; (f) electric and telephone service brought to the
electrical and telephone room(s) on the floor on which the Premises will be
located; and (g) the Premises concrete floors, smooth and level (to commercially
reasonable standards) for the installation of carpeting. In addition to the
Shell Improvements, Landlord shall provide at its cost the walls demising the
Premises from adjacent Common Area corridors; Tenant shall be responsible for
one-half of the cost of the walls demising the Premises from adjacent premises.
PARAGRAPH 2. PAYMENT; TENANT IMPROVEMENT ALLOWANCE. 2.01 Tenant shall,
at its sole cost and expense, be responsible for payment of, and shall pay when
due, all costs and expenses in connection with the design, construction and
installation of the Leasehold Improvements (the "Tenant Improvement Costs") to
the extent such costs and expenses exceed the Tenant
Exhibit "B"
(Page 1 of 3)
Improvement Allowance. The Tenant Improvement Costs shall include, without
limitation: (i) all costs, including professional fees of architects, space
planners, and other professionals, for the review and preparation of the
preliminary plans and specifications, the preliminary construction drawings, the
Approved Construction Drawings, and any change order thereto requested by
Tenant; (ii) the cost of all contractor's and subcontractor's fees and all labor
and materials supplied to construct, install and complete the Leasehold
Improvements, and the cost of any Tenant-requested changes made to the Leasehold
Improvements; and (iii) all costs related to obtaining approvals and permits
related to the Leasehold Improvements. The following shall not be included in
the Tenant Improvement Costs but shall be paid by Landlord or provided by
Landlord at no charge to Tenant: (i) the cost of the Shell Improvements; (ii)
Landlord's supervision or overhead expenses; (iii) utility usage incurred by
Landlord in connection with the construction or installation of the Leasehold
Improvements; and (iv) the use of Building elevators or hoists and access to
loading docks, during the construction or installation of the Leasehold
Improvements or Tenant's initial move into the Premises, it being acknowledged,
however, that this sentence shall not prevent Landlord from imposing reasonable
restrictions with respect to such use of the elevators, hoists and loading docks
nor shall it relieve Tenant of liability for any damage to such elevators,
hoists or loading docks arising in connection with Tenant's move into the
Premises.
2.02 Landlord shall contribute an amount up to the Tenant Improvement
Allowance for the Tenant Improvement Costs pursuant to the terms and conditions
hereof. Landlord shall pay portions of the Tenant Improvement Allowance
periodically to the General Contractor upon Landlord's receipt of (i) written
certification by Tenant's Architect to Landlord and, if required, to Landlord's
lender, that work for which such payment is to be made has been completed in
accordance, in all material respects, with the Approved Construction Drawings,
and (ii) appropriate lien waivers from the General Contractor in a form
reasonably acceptable to Landlord; provided, however, in the event the total
amount of the Tenant Improvement Costs payable to the General Contractor exceeds
the Tenant Improvement Allowance, Tenant shall pay when due all invoices of the
General Contractor up to the amount of such excess prior to Landlord using any
portion of the Tenant Improvement Allowance for payments to the General
Contractor. If Tenant fails to pay such invoices, Landlord may, in addition to
any other rights or remedies of Landlord under this Lease, pay portions of the
Tenant Improvement Allowance to the General Contractor for all or any portion of
such excess amount, in which event Tenant shall, immediately upon request,
reimburse Landlord for such amount so paid, together with interest thereon at
the Interest Rate from the date of payment by Landlord until the date Landlord
receives Tenant's reimbursement and, if such reimbursement is not received by
Landlord within five (5) days after Landlord gives such request, a late charge
equal to five percent (5%) of such amount; upon Landlord's receipt of Tenant's
reimbursement of that portion of the Tenant Improvement Allowance paid for such
excess amount, the amount of such reimbursement (exclusive of any interest or
late charge) shall be credited back to the Tenant Improvement Allowance. In the
event the Tenant Improvement Allowance exceeds the Tenant Improvement Costs,
such excess shall be paid to Tenant as a moving allowance within thirty (30)
days after Substantial Completion of the Leasehold Improvements. In all events,
the aggregate amount of Landlord's payments for the Tenant Improvement Costs
shall be limited to the Tenant Improvement Allowance. Notwithstanding anything
to the contrary contained herein, Landlord shall not be required to make any
payments described in this Exhibit "B" other than in accordance with the draw
schedule and requirements of Landlord's lender.
PARAGRAPH 3. APPROVALS. Landlord shall not charge Tenant for Landlord's
review of space plans, preliminary plans and specifications or construction
drawings. Within ten (10) business days after either party's receipt of
preliminary plans and specifications or construction drawings for the initial
tenant improvements desired by Tenant, such party shall notify the other, in
writing, of such party's comments and objections thereto. In making any such
comments or objections, each party shall act reasonably and in good faith and
shall not act arbitrarily or capriciously. If the receiving party does not
timely, within such ten-business-day period, give comments or objections to the
other party, then the space plans, plans and specifications or construction
drawings, as submitted, shall be deemed approved by such receiving party. If the
receiving party timely gives comments or objections to the other party, then the
Leasehold Improvements Architect shall promptly revise the space plans, plans
and specifications or construction drawings to resolve such comments or
objections and give such revised space plans, plans and specifications or
construction drawings to such party for review. Within ten (10) business days
after such party's receipt of such revised space plans, plans and specifications
or construction drawings, such party shall notify, in writing, the other party
of the receiving party's comments and objections thereto; provided, however, the
receiving party may only make such comments or objections to the extent the
revised plans and specifications or revised construction drawings (i) do not
resolve such receiving party's previous comments or objections, or (ii) contain
changes relative to the previous plans and specifications or construction
drawings which changes were not requested by such receiving party. If the
receiving party does not timely, within such ten-business-day period, give to
the other party comments or objections, then the revised preliminary plans and
specifications or construction drawings shall be deemed approved by the
receiving party. If such receiving party timely gives to the other party
comments or objections, then the Leasehold Improvements Architect shall again
revise the space plans, plans and specifications or construction drawings and
give same to receiving party for review and approval, which review and approval
shall be made in accordance with the second preceding sentence. This process of
revision and review shall continue until the space plans, plans and
specifications and the construction drawings are approved, or deemed approved
by, Landlord and Tenant.
PARAGRAPH 4. TARGET DELIVERY DATE; COMMENCEMENT DATE; SUBSTANTIAL
COMPLETION; TENANT DELAY. 4.01 Landlord shall use reasonable efforts to cause
the Leasehold Improvements to be Substantially Completed (as hereinafter
defined) by April 9, 1999, subject to force majeure and Tenant Delay (the
"Target Delivery Date"). If the Leasehold Improvements are not Substantially
Complete by the Target Delivery Date, this Lease shall not be void or voidable
and Landlord shall not be subject to any claims, damages or liabilities
therefor.
4.02 The Commencement Date shall be the date on which the Leasehold
Improvements are, or are deemed to be, Substantially Complete.
4.03 Subject to the next sentence, the "Substantial Completion" of the
Leasehold Improvements shall be deemed to occur, and the Leasehold Improvements
shall be deemed "Substantially Complete", upon Landlord's obtaining a temporary
certificate of occupancy, or equivalent, for the Premises from the local
governmental authority having jurisdiction thereof and delivery of possession of
the Premises to Tenant. Notwithstanding the foregoing, in the event of a Tenant
Delay, Substantial Completion of the Leasehold Improvements shall be deemed to
occur, and the Leasehold Improvements shall be deemed Substantially Complete, on
the date upon which such Substantial Completion of the Leasehold Improvements
would have occurred absent such Tenant Delay, as such date is reasonably
determined by Landlord. Upon Tenant's occupancy of the Premises, the Leasehold
Improvements shall be deemed to have been constructed in accordance with the
terms hereof and accepted by Tenant; provided, however, Tenant may, within
thirty (30) days after delivery of possession of the Premises to Tenant, furnish
to Landlord written notice of punch list items to be completed. In the event
Tenant timely furnishes such punch list notice to Landlord, Landlord shall
complete or cause the completion of such items listed therein as is necessary
to complete the Leasehold Improvements in substantial accordance with the terms
hereof within thirty (30)days after Landlord's receipt thereof, or within such
longer time as may be reasonably necessary for such completion so long as
Landlord causes such completion to commence promptly after receipt of the punch
list notice and thereafter diligently prosecutes such completion.
4.04 Any delay in the Substantial Completion of the Leasehold
Improvements arising out of any of the following shall be a "Tenant Delay": (i)
the construction drawings for the initial tenant improvements desired by Tenant
not being approved, or deemed
Exhibit "B"
(Page 2 of 3)
approved, by Landlord on or before the Approved Construction Drawing Deadline
for any reason whatsoever (including, without limitation, Tenant's failure to
cause preliminary plans and specifications or construction drawings, or revised
plans and specifications or construction drawings, to be timely delivered to
Landlord); (ii) any change order to the Approved Construction Drawings requested
by Tenant; and (iii) any delay in the Substantial Completion of the Leasehold
Improvements that arises out of, by reason of or in connection with any act or
omission of Tenant.
Exhibit "B"
(Page 3 of 3)
EXHIBIT "C"
ADDITIONAL TERMS AND PROVISIONS
ARTICLE 21. RESTRICTED USES. During the Term of this Lease or any
period during which Tenant occupies or is in possession of the Premises or of
any portion thereof, Tenant shall not conduct as its primary business at the
Premises either (i) the subleasing of portions of the Premises for individual
executive office suites or (ii) the provision of secretarial services, answering
services or similar office services to persons not employed by Tenant, or (iii)
any combination of the uses listed in clauses (i) and (ii), above, and this use
restriction is for the benefit of Landlord and, to the extent the tenant under
that certain lease dated as of October 24, 1996, by and between Landlord and
Atlanta-North Central Offices, Inc. is entitled to such benefit pursuant to such
lease, for the benefit of such tenant (each of the uses described in clause (i),
(ii) or (iii), above, is herein referred to as a "Restricted Use"). Tenant
further acknowledges that Landlord may hereafter grant other exclusive uses to
other tenants or occupants of the Building or of the office park in which the
Building is located. In the event Landlord grants any such exclusive use and
furnishes to Tenant written notice thereof, (a) such other exclusive use
described in such written notice shall automatically be deemed to be an
additional Restricted Use hereunder as of the date of Tenant's receipt of such
written notice from Landlord, and during the Term or any other period during
which Tenant occupies or is in possession of the Premises or any portion
thereof, Tenant shall not permit the Premises or any portion thereof, to be used
for such exclusive use, provided that no such additional exclusive use shall be
deemed to prohibit any use permitted hereunder in which Tenant is then engaged
at the Premises on the date on which Tenant receives Landlord's written notice
of such additional exclusive use, and (b) the tenant or occupant for the benefit
of which Landlord granted any such additional exclusive use shall be deemed to
be an additional third party beneficiary hereunder with respect to such
exclusive use and the enforcement of this Article with respect thereto.
ARTICLE 22. MEASUREMENT OF THE PREMISES; COMMENCEMENT DATE MEMORANDUM.
Prior to or promptly after the Commencement Date, Landlord shall cause the
usable square footage of the Premises and the Building RSF to be determined
substantially in accordance with BOMA Standards (ANZI Z65.1-1996) then
applicable to the calculation of the usable square footage of premises located
in an office premises in a building similar to the Building and the rentable
square footage of a building similar to the Building, as the case may be, using
fully-wrapped corridor. The Premises RSF shall then be calculated by multiplying
the usable square footage of the Premises, as so determined, by 1.15. The
Premises RSF and the Building RSF, as so calculated or determined, will then be
used to calculate Tenant's Share. Promptly after the Commencement Date, Landlord
shall complete and give to Tenant a Commencement Date Memorandum setting forth
the Commencement Date, the expiration of the Term, the Premises RSF, the
Building RSF, Tenant's Share and other factual matters as Landlord deems
appropriate.
ARTICLE 23. SATELLITE DISH. Tenant may, after obtaining the approval of
all governmental authorities having jurisdiction thereof and at Tenant's sole
cost and expense, install a satellite dish on the roof of the Building. Tenant
shall cause the installation, operation and removal of such satellite dish to
comply with all applicable laws, ordinances, rules and regulations and with all
applicable terms and provisions of this Lease. Any such satellite dish located
on the roof must be screened from view by the parapet of the Building. Prior to
installing any such satellite dish, Tenant shall submit to Landlord for its
consent, which may not be unreasonably withheld or delayed, elevations,
specifications and the proposed location on the roof for such satellite dish and
specifications and the proposed location for any cabling and wiring required in
connection with such satellite dish. On or before the expiration of the Term or
the earlier termination of this Lease, Tenant shall, at its expense, remove any
such satellite dish and all cabling and wiring and equipment used in connection
with, or related to, such satellite dish. Tenant hereby (i) waives any and all
claims of any nature whatsoever against Landlord for damage or injury to any
person or property, (ii) agrees to indemnify and hold harmless Landlord against
and from any and all claims, loss, costs and damages, and (iii) agrees to repair
any damage to the Building or other property, arising out of, by reason of or in
connection with any such satellite dish or the installation, operation or
removal thereof. No portion of the roof or the roof membrane shall be penetrated
in connection with the installation or operation of any such satellite dish or
otherwise in connection therewith.
ARTICLE 24. CONFERENCE ROOM. During the Term, so long as no Tenant
default under this Lease has then occurred and is subsisting, Landlord shall
provide a conference room at the Building for the non-exclusive use of Tenant,
subject to the prior scheduling thereof by Landlord or another tenant, which
conference room may be relocated within the Building from time to time by
Landlord. The use of such conference room shall be subject to such reasonable
rules and regulations as may be established by Landlord from time to time.
ARTICLE 25. ABANDONMENT. If the Premises are abandoned or vacated,
which shall be conclusively presumed if the Premises are not occupied for twenty
(20) consecutive days or more or if Tenant shall fail to move into or take
possession of the Premises within twenty (20) days after the date on which Rent
is to commence under the terms of this Lease, then Landlord may, by written
notice to Tenant, terminate this Lease; provided, however, if Tenant gives
written notice to Landlord within fifteen (15) days after such written notice of
termination that Tenant is attempting to sublet the Premises or to re-occupy the
Premises, then the effective date of such termination shall be extended for
thirty (30) days, and if, within such thirty-day period (a) Tenant enters into a
written sublease to which Landlord consents pursuant to Article 6 of this Lease
and the subtenant thereunder occupies the Premises, or (b) Tenant re-occupies
the Premises, then such termination shall be null and void and this Lease shall
continue in full force and effect as if the termination notice had not been
given. This Article shall not be deemed to limit Landlord's remedies upon a
default by Tenant.
ARTICLE 26. EXPANSION. Subject to the terms and conditions set forth in
this Article, Landlord hereby grants to Tenant the right ("Tenant's Right") to
be offered by Landlord during the period commencing on the date of this Lease
and expiring upon the earlier of any termination of this Lease or the date six
(6) months prior to the expiration of the Initial Term ("Tenant's Right Period")
the opportunity to lease that approximate 6,844 rentable square foot sixth-floor
space contiguous to the Premises, as more particularly depicted on the floor
plan attached hereto as Exhibit "A", and herein referred to, as "Tenant's Right
Space". If, at any time during Tenant's Right Period while Tenant's Right is in
effect and so long as Tenant is not in default hereunder, Landlord and another
person or entity execute a letter of intent with respect to the leasing of all
or any portion of Tenant's Right Space (as it may be designated by Landlord
pursuant to the foregoing within a reasonable period of time after Landlord's
receipt of such letter of intent, in which event such designation shall be
deemed effective on the day prior to such receipt by Landlord), then Landlord
shall furnish to Tenant a copy of such executed letter of intent and a written
notice (collectively, such letter of intent and written notice are herein
referred to as "Landlord's Notice of Availability") of the availability of the
entire space described therein (the "Available Space"), which notice shall
specify the Applicable Terms. As used in this Article, "Applicable Terms" means
the terms and conditions set forth in such letter of intent, except that the
term of Tenant's lease of such Available Space shall be the longer of the term
set forth in such letter of intent or the remaining Term. If Landlord gives
Landlord's Notice of Availability to Tenant, then Tenant shall give written
notice to Landlord so that Landlord actually receives such written notice before
5:00 p.m., Atlanta, Georgia time, on the fifth (5th) business day after Tenant's
receipt of Landlord's Notice of Availability ("Tenant's Notice Deadline") as to
whether Tenant desires to offer to lease the entirety of the Available Space on
the Applicable Terms. If Landlord receives prior to Tenant's Notice Deadline
Tenant's written notice that Tenant does not desire to lease the entirety of the
Available Space on the Applicable Terms, or if Landlord does notreceive prior to
Tenant's Notice Deadline Tenant's written notice that Tenant desires to lease
the entirety of the Available Space on the Applicable Terms, then, in either of
such instances, Landlord's obligations under this Article shall
Exhibit "C"
(Page 1 of 3)
automatically terminate and be of no further force or effect with respect to
such Available Space. If Landlord receives prior to Tenant's Notice Deadline
Tenant's written notice that Tenant desires to lease the entirety of the
Available Space on the Applicable Terms, then Landlord shall cause to be given
to Tenant a written amendment to this Lease for the leasing of the Available
Space on the Applicable Terms. If Tenant does not within five (5) business days
after Tenant's receipt of such written amendment execute and deliver such
written amendment to Landlord, without modification thereto, so that Landlord
actually receives such executed written amendment within such five-business-day
period, then Landlord's obligations under this Article shall automatically
terminate and be of no further force or effect with respect to such Available
Space. In no event shall Tenant's Right apply to any extension or renewal of the
term of a lease with respect to all or any portion of Tenant's Right Space. The
purpose of this Article is to provide notice to Tenant so that Tenant may be in
a position to offer to lease the applicable space on a competitive basis with
others.
ARTICLE 27. ADDITIONAL EXPANSION; TERMINATION. Tenant may expand the
Premises, on a space available basis, within the Building or another building
owned, managed, or controlled by Landlord in the NorthWinds Center development
of which the Building is a part (the "NorthWinds Development"), upon the
expiration of the thirty-sixth (36th) full calendar month of the Initial Term
(the "Additional Expansion Space Delivery Date") by fifty percent (50%) of the
Premises RSF (the "Additional Expansion Space"). The conditions to Tenant's
exercise of such right and to the Additional Expansion Space shall be as
follows:
(a) That this Lease is in full force and effect and Tenant is not
in default in the performance of any of the terms, covenants
and conditions herein contained at the time of exercise of the
expansion right or at the delivery of the Additional Expansion
Space to Tenant (the "Additional Expansion Space Commencement
Date"), but Landlord shall have the right at its sole
discretion to waive in writing the non-default conditions
herein.
(b) That the rental of such Additional Expansion Space shall be on
the same terms, covenants and conditions as in this Lease,
with such additional Restricted Uses as may then apply to the
Additional Expansion Space which do not prohibit Tenant from
engaging in the uses permitted hereunder in which Tenant is
then engaged at the Premises and such other terms, covenants
and conditions upon which Landlord may then be leasing space
in the building in which the Additional Expansion Space is
located; provided, however, the annual Base Rent for the first
twelve-month period after the Additional Expansion Space
Commencement Date shall be an amount equal to the fair market
base rent for the Additional Expansion Space as of the
Additional Expansion Space Base Rent Determination Date (as
hereinafter defined) for a five-year term and the Base Rent
for the Additional Expansion Space for the remainder of the
Term shall be determined by applying the fair market rate and
schedule of escalations, as of the Additional Expansion Space
Base Rent Determination Date, to said fair market base rent.
The determination of such fair market base rent for the
Additional Expansion Space and the fair market rate and
schedule of escalations thereof (collectively, the "Additional
Expansion Space FMV Base Rent") shall be made by Landlord and
Tenant, each acting in good faith, no later than the date that
is twenty (20) days after Landlord gives Landlord's Notice to
Tenant (the "Additional Expansion Space Base Rent
Determination Date"), and if Landlord and Tenant do not timely
agree upon such fair market base rent, the fair market base
rent (including periodic escalations thereof) shall be
determined pursuant to Article 29 of this Lease.
(c) That Tenant shall exercise its right to the Additional
Expansion Space provided herein, if at all, by notifying
Landlord in writing ("Tenant's Additional Expansion Notice")
prior to the expiration of the twenty-seventh (27th) full
calendar month of the Initial Term of its election to exercise
such right, which notice shall specify the number of rentable
square feet by which Tenant desires to expand the Premises.
(d) If Tenant timely gives Tenant's Additional Expansion Notice to
Landlord, then Landlord shall, on or before the date that is
three (3) months after Landlord's receipt of Tenant's
Additional Expansion Notice ("Landlord's Deadline"), give to
Tenant written notice ("Landlord's Notice") as to whether or
not Landlord will be in a position to provide such Additional
Expansion Space on the Additional Expansion Space Delivery
Date and, if so, as to the location of the Additional
Expansion Space, it being acknowledged that Landlord may elect
to provide the Additional Expansion Space in a building within
the NorthWinds Development other than the Building.
(e) If Landlord's Notice indicates that Landlord will be in a
position to timely provide the Additional Expansion Space,
then such notice shall be accompanied by: (a) a floor plan of
the Additional Expansion Space; and (b) an amendment to this
Lease with respect to the Additional Expansion Space. Such
amendment shall: (1) describe the Additional Expansion Space
and provide that the same shall be a part of the "Premises"
hereunder; (2) specify the Additional Expansion Space
Commencement Date, provide that Tenant has then exercised its
right to the Extension Term, and specify the expiration date
of the Term; (3) specify the initial base rent and the
schedule and percentage of the escalations thereof for the
Additional Expansion Space and the initial base rent for the
original Premises during the Extension Term, or refer to
Article 29 hereof for the means of determining same; (4)
provide that Landlord shall deliver such Additional Expansion
Space in its "as is" condition on or before the Additional
Expansion Space Delivery Date, with respect to any portion
thereof that is "second generation space" (i.e., space in
which tenant improvements have been installed and constructed
for occupancy by a previous tenant) or with such fair market
tenant improvement allowance as may be agreed between the
parties or determined in accordance with subparagraph (b),
above, with respect to any portion thereof that is "first
generation space" (i.e., space in which tenant improvements
have not been installed and constructed for occupancy by a
previous tenant); and (5) provide that the rental of the
Additional Expansion Space shall otherwise be on the terms and
conditions set forth in this Lease. After Landlord gives any
such amendment to Tenant, Landlord and Tenant shall work
diligently and in good faith to agree upon the terms of such
amendment. Landlord's obligations, and any rights of Tenant,
under this Article shall automatically terminate and be of no
further force or effect if Landlord and Tenant do not agree
upon such amendment despite such diligent, good faith efforts,
and execute and deliver same to each other, within thirty (30)
days after Landlord's Deadline; provided, however, so long as
each party continues to use such diligent, good faith efforts,
such time period shall be extended by an additional thirty
(30) days.
(f) If Landlord's Notice indicates that Landlord will not be in a
position to timely provide the Additional Expansion Space,
then (i) Landlord shall have no obligation to provide same,
and (ii) Tenant may, as its sole and exclusive right and
remedy therefor, terminate this Lease by giving Landlord
within thirty (30) days after Landlord gives Landlord's Notice
to Tenant, (A) a written notice of termination specifying a
termination date (the "Termination Date") not less than six
(6) months after the date such written notice is received by
Landlord, and (B) a termination payment equal to the
unamortized portion, as of Termination Date, of the Tenant
Improvement Allowance and any other, similar allowance
provided by Landlord and the brokerage commissions or fees
payable or paid by Landlord in connection with the Lease; in
determining such amount, the unamortized portion of such
allowances, commissions and fees shall be equal to the amount
of such allowances, commissions, and fees, together with
interest thereon, that would be payable after the date of
Exhibit "C"
(Page 2 of 3)
such termination if the amount of such allowances, commissions
and fees were the principal amount of a loan made by Landlord
to Tenant on the Commencement Date, accruing interest at an
interest rate of nine percent (9%) per annum, with equal
monthly installments of principal and interest payable over
the Initial Term. In such event, if Landlord receives such
written notice and termination payment within such thirty-day
period, then this Lease shall terminate on the Termination
Date and, except as otherwise provided in this Lease, neither
party shall have any further rights or remedies under this
Lease and this Lease shall become null and void on the
Termination Date. If Landlord does not receive such written
notice and termination payment within such thirty-day period,
Tenant shall be deemed to have elected not to terminate this
Lease, and shall have no further right to terminate this
Lease, pursuant to this Article, and this Lease shall continue
in full force and effect subject to its terms and provisions.
ARTICLE 28. EXTENSION. Tenant shall have the right, subject to the
provisions hereinafter provided, to extend the term of this Lease for one period
of five (5) years on the terms and provisions of this Article. Such extension
period shall herein be referred to as the "Extension Term". The conditions to
Tenant's exercise of such right and to the Extension Term shall be as follows:
(a) That this Lease is in full force and effect and Tenant is not
in default in the performance of any of the terms, covenants
and conditions herein contained at the time of exercise of the
right of extension or at the commencement of the Extension
Term, but Landlord shall have the right at its sole discretion
to waive in writing the non-default conditions herein.
(b) That such Extension Term shall be on the same terms, covenants
and conditions as in this Lease; provided, however, the Base
Rent for the initial twelve (12) month period of the Extension
Term shall be an amount equal to the fair market base rent for
the Premises as of the Base Rent Determination Date (as
hereinafter defined) for a five-year term and the Base Rent
for the remainder of the Extension Term shall be determined by
applying the fair market rate and schedule of escalations, as
of the Base Rent Determination Date, to said fair market base
rent. The determination of such fair market base rent for the
Premises and the fair market rate and schedule of escalations
thereof (collectively, the "Extension Term FMV Base Rent")
shall be made by Landlord and Tenant, each acting in good
faith, no later than the date that is eight (8) months prior
to commencement of the Extension Term (the "Base Rent
Determination Date"), and if Landlord and Tenant do not timely
agree upon the Extension Term FMV Base Rent, the same shall be
determined pursuant to the immediately succeeding Article of
this Lease. Notwithstanding anything to the contrary contained
in this Article, in no event shall the Base Rent, on a per
rentable square foot basis, for said initial twelve-month
period be less than the annual Base Rent, on a per rentable
square foot basis, payable by Tenant under the terms of this
Lease immediately prior to the commencement of the Extension
Term.
(c) That Tenant shall exercise its right to the Extension Term
provided herein, if at all, by notifying Landlord in writing
of its election to exercise the right to renew the term of
this Lease no later than nine (9) months prior to the
expiration of the Initial Term.
(d) That neither the tenant (the "FFIC Tenant") under that certain
Lease Agreement by and between Landlord and Fireman's Fund
Insurance Company, nor any tenant leasing a number of rentable
square footage in the Building greater than the initial
Premises RSF set forth in Section 1.1(A) of this Lease plus
any additional space in the Building then leased by Tenant
from Landlord having any expansion rights, rights of first
refusal, or similar rights with respect to any portion of the
Premises (a "Qualifying Tenant"), has elected or agreed to
lease or otherwise occupy the Premises or any portion thereof.
Notwithstanding anything to the contrary contained in this
Lease, in the event Tenant elects to exercise its right to an
Extension Term, and either the FFIC Tenant or a Qualifying
Tenant then having any expansion rights, rights of first
refusal, or similar rights with respect to any portion of the
Premises elects, or has elected, to lease or otherwise occupy
the Premises or any portion thereof, Landlord may cancel such
exercise by Tenant by furnishing written notice thereof to
Tenant on or before the date that is four (4) months prior to
the date on which such Extension Term would have commenced
absent such cancellation, in which event Tenant's election
with respect to such Extension Term shall be null and void,
and the Term of this Lease shall expire upon the expiration of
the Initial Term, subject to earlier termination as herein
provided.
ARTICLE 29. APPRAISAL. If Landlord and Tenant do not timely agree upon
the Additional Expansion Space FMV Base Rent or the Extension Term FMV Base Rent
pursuant to the preceding Articles of this Lease, then within seven (7) days
after the expiration of the period within which Landlord and Tenant were to
agree upon same as provided in the appropriate Article, Landlord and Tenant
shall mutually appoint an appraiser that has at least five (5) years full-time
commercial appraisal experience and is a member of the American Institute of
Real Estate Appraisers. If Landlord and Tenant are unable to agree upon an
appraiser, either of Landlord or Tenant, after giving five (5) days prior
written notice to the other party, may apply to the then president of the
Atlanta Board of Realtors for the selection of an appraiser who meets the
foregoing qualifications, which selection shall be made within fifteen (15) days
after such application. The appraiser selected by the president of the Board of
Realtors shall be a person who has not previously acted in any capacity for
either party, its affiliates or leasing agents and who meets the above
experience qualifications. Landlord and Tenant shall each, within seven (7) days
after the appointment (either by agreement or selection) of the appraiser,
submit to the appraiser such party's determination of the Additional Expansion
Space FMV Base Rent or the Extension Term FMV Base Rent, as the case may be.
Within twenty (20) days after the expiration of the above-referenced seven-day
period, the appraiser shall review each of the Landlord's and Tenant's
submittals and shall review such other information as such appraiser shall deem
necessary (a party may furnish the appraiser with any information it deems
relevant) and shall select one of the two submittals as the more reasonable. The
appraiser shall immediately notify the parties of his or her selection, and such
selection shall be the Additional Expansion Space FMV Base Rent or the Extension
Term FMV Base Rent, as the case may be, for purposes of the appropriate Article,
above. If, upon the expiration of the above-referenced seven-day period, the
appraiser shall have received one of the party's submittals but not both, the
appraiser shall designate the submitted item as the Additional Expansion Space
FMV Base Rent or the Extension Term FMV Base Rent, as the case may be, and the
appraiser shall immediately notify the parties of same.
Exhibit "C"
(Page 3 of 3)
EXHIBIT "D"
RULES AND REGULATIONS
1. No sign, picture, advertisement or notice visible from the exterior
of the Premises shall be installed, affixed, inscribed, painted or otherwise
displayed by Tenant on or in any part of the Premises or the Building unless the
same is first approved by Landlord. Any such sign, picture, advertisement or
notice approved by Landlord shall be painted or installed for Tenant at Tenant's
cost by Landlord or by a party approved by Landlord. No awnings, blinds, shades
or screens shall be attached to or hung in, or used in connection with any
window or door of, the Premises without the prior consent of the Landlord,
including approval by the Landlord of the quality, type, design, color and
manner of attachment.
2. Tenant agrees that its use of electrical current shall never exceed
the capacity of existing feeders, risers or wiring installation.
3. Business machines and mechanical equipment belonging to Tenant that
cause noise and/or vibration that may be transmitted to the structure of the
Building or to any leased space so as to be objectionable to Landlord or any
other tenants in the Building shall be placed and maintained by Tenant, at
Tenant's expense, in setting of cork, rubber, or spring type noise and/or
vibration eliminators sufficient to eliminate vibration and/or noise.
4. The Premises shall not be used for storage of merchandise held for
sale to the general public. Tenant shall not do or permit to be done in or about
the Premises or the Building anything which shall increase the rate of insurance
on said Building or obstruct or interfere with the rights of other tenants of
Landlord or annoy them in any way, including, but not limited to, using any
musical instrument or making loud or unseemly noises. The Premises shall not be
used for sleeping or lodging. No cooking or related activities shall be done or
permitted by Tenant in the Premises except with permission of Landlord. Tenant
will be permitted to use for its own employees within the Premises a small
microwave oven and Underwriters' Laboratory approved new equipment for brewing
coffee, tea, hot chocolate and similar beverages, provided that such use is in
accordance with all applicable federal, state, county and city laws, codes,
ordinances, rules and regulations and all applicable insurance requirements. No
vending machines of any kind will be installed, permitted or used on any part of
the Premises without the prior consent of Landlord. No part of said Building or
Premises shall be used for gambling, immoral or other unlawful purposes. Tenant
shall not permit the sale of any alcoholic beverage from or in the Building or
the Premises without the prior written consent of the Landlord. No area outside
of the Premises shall be used for storage purposes at any time. With respect to
multiple-tenant floors of the Building, each tenant thereof shall cause any
doors between corridors, any elevator lobby doors and any stairwell or stairway
doors on such floor to be kept closed.
5. No birds or animals of any kind shall be brought into the Building
(other than trained seeing-eye dogs required to be used by the visually
impaired). No bicycles or motorcycles (or other motorized vehicles of any kind)
shall be brought into the Building.
6. The sidewalks, entrances, passages, corridors, halls, elevators, and
stairways in the Building shall not be obstructed by Tenant or permitted by
Tenant to be used for any purposes other than those for which same were intended
as ingress and egress. No windows, floors or skylights that reflect or admit
light into the Building shall be covered or obstructed by Tenant. Toilets, wash
basins and sinks, or any other plumbing fixture or appliance, shall not be used
for any purpose other than those for which they were constructed, and no
sweeping, rubbish, or other obstructing or improper substances shall be thrown
or placed therein. The cost of repairing any stoppage or damage resulting to any
such fixtures or appliances from misuse on the part of Tenant or any person in
the Building at the invitation or with the permission of Tenant shall be paid by
Tenant. Any damage resulting to any such item, or to heating apparatus, from
misuse by Tenant or any such person shall be borne by Tenant.
7. Only one key for each office in the Premises will be furnished
Tenant without charge. Landlord may make a reasonable charge for any additional
keys. No additional lock, latch or bolt of any kind shall be placed upon any
door nor shall any changes be made in existing locks without the prior written
consent of Landlord, and Tenant shall in each case furnish Landlord with a key
for any such lock. At expiration of the term of the Lease or the termination of
the Lease, Tenant shall return to Landlord all keys furnished to Tenant by
Landlord, or otherwise procured by Tenant, and in the event of loss of any keys
so furnished, Tenant shall pay to Landlord the replacement cost thereof.
8. Landlord shall have the right to prescribe the weight, position and
manner of installation of heavy articles such as safes, machines and other
equipment brought into the Building. No safes, furniture, boxes, large parcels
or other kind of freight shall be taken to or from the Premises or allowed in
any elevator, hall or corridor except at times allowed by Landlord. Tenant shall
make prior arrangements with Landlord for use of the freight elevator for the
purpose of transporting such articles and such articles may be taken in or out
of said Building only by using such freight elevator and only during such hours
as may be arranged with and designated by Landlord. The persons employed to move
the same must be approved by Landlord. In no event shall any weight be placed
upon any floor by Tenant so as to exceed the design conditions of the floors at
the applicable location.
9. Tenant shall not permit any gases, liquids or odors to be produced
upon or permeate from the Premises, and Tenant shall not permit any flammable,
combustible or explosive fluid, chemical or substance to be brought into the
Building.
10. Every person, including Tenant, its employees and visitors,
entering and leaving the Building may be questioned by a watchman as to that
person's business therein and may be required to sign such person's name on a
form provided by Landlord for registering such person; provided, however, except
for emergencies or other circumstances requiring same in Landlord's reasonable
judgment, such procedures shall not be required during Business Hours. Landlord
may also implement a card access security system to control access. Landlord
shall not be liable for excluding any person from the Building, or for admission
of any person to the Building at any time, or for damages or loss for theft
resulting therefrom to any person, including Tenant. All deliveries must be made
via the service entrance and service elevators during Business Hours or as
otherwise directed or scheduled by Landlord, and Landlord's prior written
approval must be obtained for any other deliveries.
11. Unless agreed to in writing by Landlord, Tenant shall not employ
any person other than Landlord's contractors for the purpose of cleaning and
taking care of the Premises. Cleaning service need not be furnished on nights
when rooms are occupied after Business Hours unless, by agreement in writing,
service is extended to a later hour for specifically designated rooms. Landlord
shall not be responsible for any loss, theft, mysterious disappearance of or
damage to, any property, however occurring. Only persons authorized by the
Landlord may furnish ice, drinking water, towels, and other similar services
within the Building and only at hours and under regulations fixed by Landlord.
12. No connection shall be made to the electric wires or gas or
electric fixtures, without the prior written consent on such each occasion of
Landlord. All glass, locks and trimmings in or upon the doors and windows of the
Premises shall be kept whole by Tenant
Exhibit "D"
(Page 1 of 2)
and in good repair. Tenant shall not injure, overload or deface the Building,
the woodwork or the walls of the Premises, nor permit upon the Premises any
noisome, noxious, noisy or offensive business.
13. If Tenant desires wiring for a xxxx or buzzer system, or for any
other purpose, such wiring shall be done by the electrician of the Landlord
only, and no other person shall be permitted by Tenant to do any such work
except with the prior written permission of Landlord. No boring or cutting for
wiring or for any other purpose shall be done unless first approved in writing
by Landlord.
14. Tenant and any person parking a vehicle (including, without
limitation, a bicycle) in connection with visiting the Building, or otherwise
parking a vehicle at Tenant's invitation or with the permission of Tenant, shall
observe and obey all parking and traffic regulations imposed by Landlord. All
vehicles shall be parked only in areas designated therefor by Landlord. Tenant
shall not permit any such vehicle to be parked overnight or to display any form
of advertising, including, without limitation, "for sale" signs or any
advertising of services, products, or any enterprise. Landlord shall be entitled
to cause any vehicle parked in violation of these Rules and Regulations or other
parking and traffic regulations imposed by Landlord either to be towed at the
vehicle owner's sole cost and expense or to attach to the vehicle a "boot" or
other immobilizing device and require said owner to pay a fee for the removal
thereof.
15. Canvassing, peddling, soliciting and distribution of handbills or
any other written materials in the Building are prohibited, and Tenant shall
cooperate to prevent same.
16. Landlord shall have the right to change the name of the Building
and to change the street address of the Building, provided that in the case of a
change in the street address, Landlord shall give Tenant not less than 120 days'
prior notice of the change, unless the change is required by governmental
authority.
17. Landlord may waive any one or more of these Rules and Regulations
for the benefit of Landlord or of any particular tenant, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in favor
of any other tenant, nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all of the other tenants of the Building.
18. These Rules and Regulations are supplemental to, and shall not be
construed in any way as modifying or amending, in whole or in part, the terms,
covenants, agreements and conditions of any lease of any premises in the
Building.
19. Landlord reserves the right to enforce the restrictions and
limitations contained in the Lease, to make such other reasonable Rules and
Regulations as in its judgment may from time to time be desirable for the
safety, care and cleanliness of the Building, the management thereof, or the
preservation of good order therein.
Exhibit "D"
(Page 2 of 2)
EXHIBIT "E"
DEFINITIONS
1. "ADA" means the Americans With Disabilities Act and any similar law
enacted by the state in which the Premises is located.
2. "Additional Rent" means all sums (other than Base Rent) due and payable
by Tenant under this Lease, including, without limitation, Tenant's
Share of Excess Operating Costs and Taxes.
3. "Building Systems" means heating, ventilation, air conditioning
system(s), electrical system(s), mechanical system(s), plumbing
system(s), fire/life/safety system(s), and any other systems of the
Building.
4. "Business Days" or "business days" means Monday through Friday (except
for Holidays).
5. "Business Hours" means 8:00 a.m. to 6:00 p.m. on Monday through Friday
and 8:00 a.m. to 1:00 p.m. on Saturdays (except for Holidays);
provided, however, Landlord acknowledges that the services set forth in
Section 5.1 of the Lease are provided during said hours on certain days
that are defined as "Holidays" in this Lease, and, therefore, for
purposes of Section 5.1 of this Lease, "Business Hours" means 8:00 a.m.
to 6:00 p.m. on Monday through Friday and 8:00 a.m. to 1:00 p.m. on
Saturdays (except for New Years' Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day, Christmas Day, and such other holidays
that may be designated as State of Georgia or federal holidays after
the date of this Lease that are not now so designated and for which the
Building closes).
6. "Day" or "Days" means a calendar day or days, except where "Business
Days" or "business days" are specified.
7. "Excess Operating Costs" means, for each calendar year or fractional
calendar year during the Term, the amount by which Operating Costs for
such calendar year or fractional calendar year exceed Base Year
Operating Costs.
8. "Excess Taxes" means, for each calendar year or fractional calendar
year during the Term, the amount by which Taxes for such calendar year
or fractional calendar year exceed Base Year Taxes.
9. "Guarantor" means the guarantor of Tenant's obligations hereunder, if
any, whether one or more.
10. "Hazardous Materials" means any and all pollutants, contaminants, toxic
wastes, or any other substances, the removal of which is required or
the use of which is restricted, regulated, prohibited, or penalized by
any applicable federal, state or local laws, ordinances or regulations
relating to or addressing the protection of the air, the land, the
water or the environment, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act,
42 U.S.C.ss.ss.9601 et seq. ("CERCLA"); the Resource Conservation and
Recovery Act, 42 U.S.C.ss.ss.6901 et seq. ("RCRA"); the Georgia
Hazardous Site Response Act, O.C.G.A.ss.ss.12-8-90 et seq. ("HSRA");
the Georgia Underground Storage Tank Act, O.C.G.A.ss.ss.12-13-1 et
seq.; and any similar federal or state laws, ordinances, or
regulations.
11. "Herein", "hereof", "hereby", "hereunder" and words of similar import
shall be construed to refer to this Lease as a whole and not to any
particular Article or Section.
12. "Holidays" means New Years' Day, Memorial Day, Independence Day, Labor
Day, Veteran's Day, Thanksgiving and the day following Thanksgiving,
Christmas Day, and such other holidays that may be recognized by
national banks in the metropolitan area of Atlanta, Georgia.
13. "Interest Rate" means the lower of fifteen percent (15%) per annum or
the maximum rate of interest then permitted by applicable law.
14. "Land" means that certain parcel of land upon which the Building is
located, as more particularly described in Exhibit "F" attached hereto
and incorporated herein.
15. "Monthly Installment of Excess Operating Costs and Excess Taxes" means
one-twelfth (1/12th) of Tenant's Share of Landlord's estimate of Excess
Operating Costs and Excess Taxes for a specified calendar year, to be
set forth in the notice to be given by Landlord to Tenant pursuant to
Article 4.1(A) of this Lease.
16. "Operating Costs" means all costs, expenses and disbursements of every
kind and nature incurred or paid in connection with the ownership,
management, operation, repair and maintenance of the Project, and an
equitable pro rata share of such costs, expenses and disbursements
related to certain areas or improvements located or to be located on
the Land or other land owned or controlled by Landlord or its
affiliates in the vicinity of the Land for the non-exclusive benefit of
the Building (collectively, the "Common Improvements"). Without
limiting the generality of the foregoing, Operating Costs shall
include, without limitation: (i) wages, salaries, benefits, fees and
other compensation of all on and off-site employees (at or below the
grade of "building manager" or equivalent) of Landlord and Landlord's
managing agent engaged either full or part time in the operation,
management, or access control of the Project and payroll taxes, social
security taxes, unemployment insurance taxes, fringe benefits.
retirement plans, and insurance costs relating to such employees, all
reasonably allocated based upon the actual time such employees or
agents are engaged directly in providing such services; (ii) the cost
of all utilities; (iii) the cost of all maintenance and service
agreements and the equipment provided thereunder; (iv) costs of all
repairs, alterations, additions, changes, and replacements, including,
without limitation, such repairs, alterations, additions, changes, and
replacements required by any law or any governmental regulation that
are not required as of the date hereof by such law or regulation as
presently interpreted and enforced, which items shall include, without
limitation, structural changes, regardless of whether such costs when
incurred are classified as capital expenditures; such capital
expenditures described in this clause (iv) shall be amortized over the
useful life of the capital improvement (determined in accordance with
generally accepted accounting principles); (v) the cost of acquisition
and/or installation of capital improvements made by Landlord, amortized
over the useful life of the capital improvement (determined in
accordance with generally accepted accounting principles), which are
for the purpose of reducing Operating Costs or Taxes to the extent of
such reduction; (vi) the costs and expenses incurred or paid for
Exhibit "E"
(Page 1 of 3)
all insurance, including, without limitation, casualty, rental
abatement and liability insurance applicable to the Project and
Landlord's personal property used in connection therewith, including
the costs of repairs and restorations in accordance with the provisions
of this Lease; (vii) the cost of legal and accounting services incurred
by Landlord in connection with the management, maintenance, operation
and repair of the Project; (viii) the costs of the management office
for the Project or the Building; and (ix) a management fee not to
exceed, during the Initial Term, three percent (3%), and thereafter
five percent (5%), of the gross rental payable to Landlord by all
tenants and occupants of the Building. "Operating Costs" shall not
include the following:
(a) costs of repair or replacement incurred by (i) fire or
other casualty that is covered by insurance carried and
maintained by Landlord or that would have been covered by
insurance had Landlord complied with the insurance
requirements imposed upon it under the express terms of this
Lease, or (ii) exercise of the right of eminent domain;
(b) leasing commissions, advertising and other promotional
costs and expenses, attorneys' fees, costs and disbursements
and other expenses incurred in negotiating or executing leases
or in resolving disputes with other tenants, other occupants,
or other prospective tenants or occupants of the Building or
any portion thereof, collecting delinquent rents or otherwise
enforcing leases of other tenants of the Building or any
portion thereof;
(c) the cost of overtime or other expenses of Landlord
incurred in curing its defaults under any leases or other
agreements;
(d) costs and expenses of special services rendered to
particular tenants of premises in the Building or that
exclusively benefit the premises of another tenant or tenants
in the Building or any portion thereof for which such tenant
is obligated under its lease to pay directly, separately from
such tenant's payment of its share of Operating Costs;
(e) costs of electrical energy furnished and metered directly
to tenants of premises in the Building for which Landlord is
reimbursed by a tenant directly and separately from such
tenant's payment of its share of Operating Costs;
(f) costs and expenses for items and services for which Tenant
reimburses Landlord directly and separately from Tenant's
payment of its share of Operating Costs;
(g) costs and expenses incurred by Landlord to the extent
Landlord is actually reimbursed by insurance proceeds or
otherwise reimbursed by parties other than tenants of the
Building;
(h) any amounts paid to Landlord by any indemnitor under any
indemnity of Landlord by such indemnitor or any amounts paid
by Landlord as damages under a judgment;
(i) any expenses for repairs or maintenance which are covered
by warranties and service contracts, to the extent such
repairs and maintenance are made at no cost to Landlord;
(j) costs and expenses incurred for the correction of any
actual construction defects in the initial construction of the
Building; provided, however, in the event Tenant claims that
any portion of Tenant's Share of Operating Costs, as
determined by Landlord, should be excluded from Operating
Costs pursuant to this subparagraph (j), Tenant shall not
withhold or otherwise not pay to Landlord any portion of such
Tenant's Share of Operating Costs based upon such claim unless
and until Landlord agrees with Tenant with respect thereto or
such claim is resolved in Tenant's favor in a manner binding
on Landlord;
(k) repairs, alterations and general maintenance necessitated
by the gross negligence or willful misconduct of Landlord or
its agents, employees, or contractors;
(l) the cost of initially constructing the Building and
depreciation thereof and similar non-cash expenses for which
Landlord is able to take an income tax deduction or otherwise
recoup a portion of the cost of an item the initial cost of
which is not includable in Operating Costs;
(m) finance and debt service costs for the Building or any
portion thereof and rental under any ground or underlying
lease or leases for the Building or any portion thereof;
(n) any compensation paid to clerks, attendants or other
persons in commercial concessions operated by Landlord unless
any income generated from such concessions is used to reduce
Operating Costs;
(o) in the event parking fees are charged for tenant parking,
the costs of operating and maintaining the Building parking
facilities may be included in Operating Costs only to the
extent they exceed such fees collected by Landlord;
(p) in the event Landlord provides any health, athletic or
recreational club of the Building and charges fees for the use
thereof, the costs of operating and maintaining such club may
be included in Operating Costs only to the extent they exceed
such fees collected by Landlord;
(q) fines or penalties incurred due to violations by Landlord
of any governmental rule or authority or any late payment of
any amounts payable to governmental authority, other than any
such fine or penalty (not otherwise paid by Tenant) incurred
due to any violation or late payment caused by any act or
omission of Tenant, its employees or agents;
(r) costs or expenses incurred for modifications or
alterations to the Building or any premises therein required
by the ADA or other applicable laws to the extent, and only to
the extent, (i) other tenants are obligated under their
respective leases to pay such costs and expenses, (ii) such
modifications or alterations are required by the ADA or other
applicable law because of a use of any premises in the
Building for retail or other non-office uses where such
modifications or alterations would not have been required in
the absence of such retail or other non-office uses, or (iii)
such modifications or alterations are presently, as of the
date of this Lease, required to be made, but have not been
made, to the Building by the ADA or other applicable law, as
presently interpreted and enforced;
(s) taxes otherwise includable in Operating Costs which are
not properly allocable to the Project or to the Common
Improvements, including, without limiting the generality of
the foregoing, taxes which are properly allocable to other
buildings or other portions of the NorthWinds Center
development of which the Building is a part;
(t) if any taxes paid by Landlord and previously paid by
Tenant as a part of Operating Costs are refunded, Landlord
shall promptly pay Tenant an amount equal to Tenant's pro rata
share of such refund (based on the portion of such taxes
initially paid by Tenant) less the reasonable expenses
incurred by Landlord in obtaining such refund;
Exhibit "E"
(Page 2 of 3)
(u) Landlord's general overhead of its primary office except
as it directly relates to the operation, management,
maintenance, repair and security of the Building, it being
acknowledged, however, that the general overhead of any
property management office located at the NorthWinds Center
development of which the Building is a part shall be allocated
among the various buildings that are managed from such office;
(v) costs for purchasing sculptures, paintings, wall hangings
or other objects of art; provided that any costs of cleaning,
maintenance or restoration of such artworks up to a maximum of
$1,000 per calendar year may be included in Operating Costs;
(w) costs and expenses incurred in leasing air-conditioning
systems, elevators or other equipment if the costs of such
equipment, if purchased rather than leased, would be excluded
from Operating Costs;
(x) costs and expenses associated with the removal or
encapsulation of asbestos or other Hazardous Materials;
(y) any costs representing any amount paid for services and
materials to an affiliate or subsidiary of Landlord to the
extent such amount materially exceeds the fair market price
for such services or materials if purchased from an unrelated,
qualified third party; and
(z) charitable contributions of Landlord There shall be no
duplication of costs or reimbursements. Notwithstanding the
foregoing, in the event Tenant claims that any portion of
Tenant's Share of Operating Costs, as determined by Landlord,
should be excluded from Operating Costs pursuant to the
exclusions set forth above, Tenant shall not withhold or
otherwise not pay to Landlord any portion of such Tenant's
Share of Operating Costs based upon such claim unless and
until Landlord agrees with Tenant with respect thereto or such
claim is resolved in Tenant's favor in a manner binding on
Landlord.
17. "Project" means the Land and the Building, together with any other
improvements constructed or installed from time to time on the Land.
18. "Rent" means the Base Rent and the Additional Rent.
19. "Taxes" means all taxes, assessments, excises, levies, and other fees
and charges of any kind or nature whatsoever by any public authority
that are during the Term levied, imposed, assessed, charged, confirmed,
or imposed upon, or become due and payable out of, or become a lien on
the Project, or any portion thereof, or the appurtenances or facilities
used in connection therewith or the operation thereof (including,
without limitation, ad valorem taxes, personal property taxes, transit
taxes, ordinary, special or extraordinary assessments, and governmental
levies), whether such Taxes are presently levied, imposed, assessed,
charged, confirmed, or imposed or are levied, imposed, assessed,
charged, confirmed, or imposed after the date of this Lease. The costs
or expenses incurred or paid by Landlord, if any, in contesting any
Taxes shall also be included within the term "Taxes". The term "Taxes"
shall not include income taxes payable by Landlord or any fine, penalty
or interest charged to Landlord on account of any failure by Landlord
to timely pay Taxes. Notwithstanding the foregoing, if at any time
after the date of this Lease, the present method of taxation or
assessment is changed so that the whole or any part of the Taxes shall
be discontinued or reduced and as a substitute therefor or in lieu
thereof a tax, assessment, excise, levy, or other fee or charge of any
kind or nature whatsoever by any public authority is levied, imposed,
assessed, charged, confirmed, or imposed, whether wholly or partially,
as a special assessment or otherwise, on rents, income, profits, sales,
or gross receipts derived from the Project, then such tax, assessment,
excise, levy, or other fee or charge shall be deemed included within
the term "Taxes" to the extent that such tax, assessment, excise, levy,
or other fee or charge would be payable if the Project were the only
property of Landlord subject thereto and to the extent that any such
tax, assessment, excise, levy, or other fee or charge is not payable
directly by Tenant pursuant to Section 4.3 of this Lease or payable
directly by other tenants of the Project pursuant to provisions in such
tenants' leases similar to said Section 4.3.
Exhibit "E"
(Page 3 of 3)
EXHIBIT "F"
LEGAL DESCRIPTION OF THE LAND
ALL THAT TRACT OF LAND lying and being in the City of Alpharetta in
Land Xxx 000 xx xxx 0xx Xxxxxxxx, 0xx Xxxxxxx xx Xxxxxx Xxxxxx, Georgia, being
more particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING, BEGIN at the western point of the
mitered intersection of the northwestern right-of-way line of Westside Parkway
(variable width right-of-way) with the northeastern right-of-way line of Xxxxxx
Bridge Road (variable width right-of-way) and run along said right-of-way line
of Xxxxxx Xxxxxx Xxxx Xxxxx 00 degrees 25 minutes 58 seconds West 630.02 feet to
a right-of-way monument; thence continue along said right-of-way line along the
arc of a curve to the right 25.39 feet to an iron pin set at the TRUE POINT OF
BEGINNING (said arc having a radius of 3754.72 feet and being subtended by a
chord bearing North 34 degrees 03 minutes 03 seconds West 25.39 feet); from the
TRUE POINT OF BEGINNING, continue along said right-of-way line of Xxxxxx Bridge
Road along the arc of a curve to the right 645.81 feet to an iron pin set (said
arc having a radius of 3754.72 feet and being subtended by a chord bearing North
28 degrees 55 minutes 47 seconds West 645.01 feet) ; thence leave said
right-of-way line and run along the arc of a curve to the right 68.03 feet to an
iron pin set (said arc having a radius of 75.00 feet and being subtended by a
chord bearing North 38 degrees 04 minutes 02 seconds East 65.72 feet); thence
along the arc of a curve to the left 132.00 feet to an iron pin set (said arc
having a radius of 491.75 feet and being subtended by a chord bearing North 56
degrees 21 minutes 50 seconds East 131.60 feet); thence along the arc of a curve
to the right 55.86 feet to an iron pin set (said arc having a radius of 304.11
feet and being subtended by a chord bearing North 54 degrees 18 minutes 51
seconds East 55.79 feet); thence North 58 degrees 05 minutes 12 seconds East
78.69 feet to an iron pin set; thence along the arc of a curve to the right
523.84 feet to an iron pin set (said arc having a radius of 316.00 feet and
being subtended by a chord bearing South 58 degrees 30 minutes 54 seconds East
465.88 feet); thence South 11 degrees 01 minute 30 seconds East 217.95 feet to
an iron pin set; thence along the arc of a curve to the right 28.79 feet to an
iron pin set (said arc having a radius of 32.00 feet and being subtended by a
chord bearing South 14 degrees 44 minutes 44 seconds West 27.83 feet); thence
along the arc of a curve to the left 31.60 feet to an iron pin set (said arc
having a radius of 50.00 feet and being subtended by a chord bearing South 22
degrees 24 minutes 48 seconds West 31.07 feet); thence along the arc of a curve
to the right 26.39 feet to an iron pin set (said arc having a radius of 30.00
feet and being subtended by a chord bearing South 29 degrees 30 minutes 27
seconds West 25.54 feet); thence South 54 degrees 42 minutes 17 seconds West
53.42 feet to an iron pin set; thence South 58 degrees 20 minutes 36 seconds
West 94.55 feet to an iron pin set; thence South 54 degrees 42 minutes 17
seconds West 241.70 feet to an iron pin set; thence along the arc of a curve to
the right 38.18 feet to the iron pin set at the TRUE POINT OF BEGINNING (said
arc having a radius of 48.00 feet and being subtended by a chord bearing South
77 degrees 29 minutes 22 seconds West 37.18 feet); said tract containing 8.11
acres and being described according to survey of Phase IV - Northwinds Center
dated June 4, 1998 and last revised June 10, 1998, prepared by Registered Land
Surveyors, Inc. under Job No. 1500, bearing the seal and certification of Xxxxxx
X. Xxxxx, Georgia Registered Land Surveyor No. 2420, said survey being
incorporated herein and made a part hereof.
Exhibit "F"
(Page 1 of 1)
