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EXHIBIT 10.51
000 XXXXXXXXX XXXXXX XXXXXXX
XXXXXXX, XXXXXXX
OFFICE LEASE AGREEMENT
BETWEEN
EOP-PERIMETER CENTER, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY
("LANDLORD")
AND
NOVA GEORGIA SERVICES, L.P., A GEORGIA LIMITED PARTNERSHIP
("TENANT")
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TABLE OF CONTENTS
I. BASIC LEASE INFORMATION.................................................1
II. LEASE GRANT............................................................3
III. POSSESSION............................................................3
IV. RENT...................................................................4
V. COMPLIANCE WITH LAWS; USE..............................................10
VI. SECURITY DEPOSIT......................................................10
VII. SERVICES TO BE FURNISHED BY LANDLORD.................................11
VIII. LEASEHOLD IMPROVEMENTS..............................................12
IX. REPAIRS AND ALTERATIONS...............................................12
X. USE OF ELECTRICAL SERVICES BY TENANT...................................14
XI. ENTRY BY LANDLORD.....................................................14
XII. ASSIGNMENT AND SUBLETTING............................................15
XIII. LIENS...............................................................17
XIV. INDEMNITY AND WAIVER OF CLAIMS.......................................17
XV. INSURANCE.............................................................17
XVI. SUBROGATION..........................................................18
XVII. CASUALTY DAMAGE.....................................................18
XVIII. CONDEMNATION.......................................................19
XIX. EVENTS OF DEFAULT....................................................20
XX. REMEDIES..............................................................20
XXI. LIMITATION OF LIABILITY..............................................21
XXII. NO WAIVER...........................................................22
XXIII. QUIET ENJOYMENT....................................................22
XXIV. RELOCATION..........................................................22
XXV. HOLDING OVER........................................................22
XXVI. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE....................23
XXVII. ATTORNEYS' FEES....................................................24
XXVIII. NOTICE............................................................24
XXIX. EXCEPTED RIGHTS.....................................................24
XXX. SURRENDER OF PREMISES................................................25
XXXI. MISCELLANEOUS.......................................................25
XXXII. ENTIRE AGREEMENT...................................................27
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OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (the "Lease") is made and entered into as
of the ____ day of ___________, 1999, by and between EOP-PERIMETER CENTER,
L.L.C., A DELAWARE LIMITED LIABILITY COMPANY ("Landlord") and NOVA GEORGIA
SERVICES, L.P., A GEORGIA LIMITED PARTNERSHIP ("Tenant").
I. BASIC LEASE INFORMATION.
A. "Building" shall mean the building located at 000 Xxxxxxxxx
Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxx of DeKalb, State of Georgia,
commonly known as 000 Xxxxxxxxx Xxxxxx Xxxxxxx.
B. "Rentable Square Footage of the Building" is deemed to be
131,327 square feet.
C. "Premises A" and "Premises B" shall mean the areas shown on
EXHIBIT A-1 and EXHIBIT A-2, respectively. Premises A is
located on the 2nd and 3rd floors and known as suite numbers
200 and 300, and Premises B is located on the 1st, 4th and 5th
floors and known as suite numbers 110, 111, 400, 410 and 500.
The "Rentable Square Footage of Premises A" is deemed to be
46,318 square feet (Suite 200 contains 23,159 rentable square
feet and Suite 300 contains 23,159 rentable square feet) and
the "Rentable Square Footage of Premises B" is deemed to be
44,468 square feet (Suite 110 contains 6,576 rentable square
feet, Suite 111 contains 6,755 rentable square feet, Suite 400
contains 3,381 rentable square feet, Suite 410 contains 12,684
rentable square feet and Suite 500 contains 15,072 rentable
square feet). For the period beginning with the Commencement
Date (as defined in Section I.G. below) through and including
the day immediately preceding the Premises B Commencement Date
(as defined in Section I.G. below), the "Premises" shall be
defined as Premises A only. For the period on and after the
Premises B Commencement Date through the Termination Date, the
"Premises" shall be defined, collectively, as Premises A and
Premises B and, from and after the Premises B Commencement
Date, the Rentable Square Footage of the Premises is deemed to
be 90,786 square feet. Premises A and Premises B are sometimes
individually or collectively referred to as the "Premises", in
accordance with the foregoing. If the Premises include one or
more floors in their entirety, all corridors and restroom
facilities located on such full floor(s) shall be considered
part of the Premises. Landlord and Tenant stipulate and agree
that the Rentable Square Footage of the Building and the
Rentable Square Footage of the Premises are correct and shall
not be remeasured.
D. "Base Rent":
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Period in RSF in Annual Rate Base Rent Monthly
Term Premises Per Square Foot for Period Base Rent
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11/01/99 - 07/31/00 46,318 $20.25 $ 703,454.67 $ 78,161.63
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08/01/00 - 10/31/00 90,786 $20.25 $ 459,604.14 $153,201.38
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11/01/00 - 10/31/01 90,786 $20.66 $1,875,638.76 $156,303.23
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11/01/01 - 10/31/02 90,786 $21.07 $1,912,861.08 $159,405.09
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11/01/02 - 10/31/03 90,786 $21.49 $1,950,991.20 $162,582.60
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11/01/03 - 10/31/04 90,786 $21.92 $1,990,029.12 $165,835.76
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11/01/04 - 10/31/05 90,786 $22.36 $2,029,974.96 $169,164.58
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11/01/05 - 10/31/06 90,786 $22.80 $2,069,920.80 $172,493.40
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11/01/06 - 10/31/07 90,786 $23.26 $2,111,682.36 $175,973.53
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It is agreed that Tenant may take possession of all or a
portion of Premises B, in phases, prior to the Premises B
Commencement Date as described in Section III.C. below.
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E. "Tenant's Pro Rata Share" shall mean 35.2692% for the period
beginning with the Commencement Date and ending on the day
immediately preceding the Premises B Commencement Date. For
the period from and after the Premises B Commencement Date
through the Termination Date, "Tenant's Pro Rata Share" shall
mean 69.1297%.
F. "Base Year": 2000.
G. 1. "Term" and "Term for Premises A": shall mean a period
of 96 months. The Term and the Term for Premises A
shall commence on November 1, 1999 (the "Commencement
Date") and, unless terminated early in accordance
with this Lease, end on September 30, 2007 (the
"Termination Date").
2. "Term for Premises B": shall mean a period of 87
months. The Term for Premises B shall commence on
August 1, 2000 (the "Premises B Commencement Date")
and, unless terminated early in accordance with this
Lease, end on the Termination Date.
H. Tenant allowance(s): $1,906,506.00, as described in the Work
Letter attached as EXHIBIT D.
I. "Security Deposit": None.
J. "Guarantor": Nova Corporation, a Delaware corporation.
Concurrent with Tenant's execution and delivery of this Lease,
Tenant shall cause Guarantor(s) to execute and deliver to
Landlord the Guaranty in the form attached hereto as EXHIBIT
I.
K. "Broker(s)": CB Xxxxxxx Xxxxx.
L. "Permitted Use": General office use, telephone area (to
operate 24 hours per day, 7 days a week), and a computer/data
facility for handling Tenant's day-to-day business.
M. "Notice Addresses":
Tenant:
On and after the Commencement Date, notices shall be sent to
Tenant at the Premises as follows:
Nova Georgia Services, L.P.
000 Xxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxx
Prior to the Commencement Date, notices shall be sent to
Tenant at the following address:
Nova Georgia Services, L.P.
c/o Nova Information Systems, Inc.
Xxx Xxxxxxxxx Xxxxxxx XX, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxx
Phone#: (000) 000-0000
Fax#: (000) 000-0000
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Prior to, on and after the Commencement Date, copies of any
notices whereby Landlord is notifying Tenant of option rights
or asserting a claim or defense against the Tenant based upon
the subject matter of the notice (as opposed to routine
notices concerning the operation of the Building) shall also
be sent to:
Long Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxx, Esq.
LANDLORD: WITH A COPY TO:
EOP-Perimeter Center, L.L.C. Equity Office Properties
x/x Xxxxxx Xxxxxx Xxxxxxxxxx Xxx Xxxxx Xxxxxxxxx Xxxxx
219 Perimeter Center Parkway, Suite 410 Suite 2200
Xxxxxxx, Xxxxxxx 00000 Xxxxxxx, Xxxxxxxx 00000
Attention: Building Manager Attention: Regional Counsel - Southeast
Rent (defined in Section IV.A) is payable to the order of
EQUITY OFFICE PROPERTIES at the following address:
EOP-Operating Limited Partnership, as agent for EOP-Perimeter
Center, L.L.C. - Group IV, Xxxx Xxxxxx Xxx 000000, Xxxxxxx,
Xxxxxxx 00000-0000.
N. "Business Day(s)" are Monday through Friday of each week,
exclusive of New Year's Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day, the Friday following Thanksgiving
Day, and Christmas Day ("Holidays"). Landlord may designate
additional Holidays, provided that the additional Holidays are
commonly recognized by other office buildings in the area
where the Building is located.
O. "Landlord Work" means the work, if any, that Landlord is
obligated to perform in the Premises pursuant to a separate
work letter agreement (the "Work Letter") attached as EXHIBIT
D.
P. "Law(s)" means all applicable statutes, codes, ordinances,
orders, rules and regulations of any municipal or governmental
entity.
Q. "Normal Business Hours" for the Building are 8:00 A.M. to 6:00
P.M. on Business Days and 8:00 A.M. to 1:00 P.M. on Saturdays.
R. "Property" means the Building and the parcel(s) of land on
which it is located, as described on EXHIBIT A-3, and, at
Landlord's discretion, the Building garage and/or surface
parking area servicing the Building and other improvements
serving the Building, if any, and the parcel(s) of land on
which they are located.
S. "Affiliate of Tenant" means any entity controlling, controlled
by or under common control with Tenant.
II. LEASE GRANT.
Landlord leases the Premises to Tenant and Tenant leases the Premises
from Landlord, together with the right in common with others to use any portions
of the Property that are designated by Landlord for the common use of tenants
and others, such as sidewalks, unreserved parking areas, common corridors,
elevator foyers, restrooms, vending areas and lobby areas (the "Common Areas").
III. POSSESSION.
A. Intentionally Omitted.
B. Subject to Landlord's obligations under Section IX.B. and
Landlord's obligation to complete the Landlord Lobby Work (as
described in Section F of EXHIBIT D), the Premises are
accepted by Tenant in "as is" condition and configuration. By
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taking possession of the Premises, Tenant agrees that the
Premises are in good order and satisfactory condition, and
that there are no representations or warranties by Landlord
regarding the condition of the Premises or the Building except
as may otherwise be expressly stated herein. If Landlord is
delayed delivering possession of the Premises or any other
space due to the holdover or unlawful possession of such space
by any party, Landlord shall use reasonable efforts to obtain
possession of the space. The Commencement Date shall be
postponed until the date Landlord delivers possession of
Premises A to Tenant free from occupancy by any party, and the
Termination Date, at the option of Landlord, may be postponed
by an equal number of days.
C. If Tenant takes possession of any portion of Premises A prior
to the Premises A Commencement Date, or if Tenant takes
possession of any portion of Premises B prior to the Premises
B Commencement Date, for purposes of conducting business
operations therein, such possession shall be subject to the
terms and conditions of this Lease and Tenant shall pay Rent
(defined in Section IV.A.) for Premises A and/or Premises B to
Landlord for each day of possession prior to the respective
Commencement Date relating to Premises A and/or Premises B.
However, notwithstanding the foregoing or anything to the
contrary contained in this Lease, it is agreed that Tenant may
take possession of Premises B, in phases, prior to the
Premises B Commencement Date for purposes of conducting
business operations therein, but each such phase of Premises B
that Tenant takes possession of shall consist of one or more
of the suites, as currently demised, comprising Premises B as
reflected on Exhibit A-2 attached hereto, and, for all
purposes, each such phase of Premises B shall be deemed to
contain the Rentable Square Footage for each such suite
comprising Premises B, as described in Section I.C. above.
Notwithstanding the foregoing, it is understood and agreed
that the portion of Premises B currently demised as Suite No.
400 is currently occupied by another tenant pursuant to a
lease scheduled to expire on February 29, 2000, and the
portion of Premises B currently demised as Suite No. 410 is
currently occupied by Landlord as its management office. It is
understood and agreed that such portion(s) of Premises B may
not be entered into by Tenant for business purposes or for any
other purpose until Landlord delivers possession of such
portion(s) of Premises B to Tenant. Landlord agrees that it
will deliver possession of Suite No. 410 no later than June 1,
2000. If Landlord is unable to tender possession of Suite No.
400 on or before June 1, 2000, Landlord shall proceed with due
diligence and take all legal action reasonably necessary to
recapture possession of Suite 400 from the existing tenant
thereunder and/or regain legal right to possession thereof.
Except for the cost of services requested by Tenant for after
Normal Business Hours (e.g. after hours HVAC), Tenant shall
not be required to pay Rent for Premises A or Premises B, as
applicable, relating to any days of possession prior to the
respective Commencement Date for Premises A or Premises B
during which Tenant, with the approval of Landlord, is in
possession of Premises A or Premises B, as applicable, for the
sole purpose of performing improvements or installing
furniture, equipment or other personal property.
IV. RENT.
A. Payments. As consideration for this Lease, Tenant shall pay
Landlord, without any setoff or deduction (except as may
otherwise be expressly stated herein), the total amount of
Base Rent and Additional Rent due for the Term. "Additional
Rent" means all sums (exclusive of Base Rent) that Tenant is
required to pay Landlord. Additional Rent and Base Rent are
sometimes collectively referred to as "Rent". Tenant shall pay
and be liable for all rental, sales and use taxes (but
excluding income taxes), if any, imposed upon or measured by
Rent under applicable Law. Base Rent and recurring monthly
charges of Additional Rent shall be due and payable in advance
on the first day of each calendar month without notice or
demand. All other items of Rent shall be due and payable by
Tenant on or before 30 days after Tenant's receipt of an
invoice for same. All payments of Rent shall be by good and
sufficient check or by other means (such as automatic debit or
electronic transfer) acceptable to Landlord. If Tenant fails
to pay any item or installment of Rent when due, Tenant shall
pay Landlord an
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administration fee equal to 5% of the past due Rent, provided
that Tenant shall be entitled to a grace period of 5 days for
the first 2 late payments of Rent in a given calendar year. If
the Term commences on a day other than the first day of a
calendar month or terminates on a day other than the last day
of a calendar month, the monthly Base Rent and Tenant's Pro
Rata Share of any Tax Excess (defined in Section IV.B.) or
Expense Excess (defined in Section IV.B.) for the month shall
be prorated based on the number of days in such calendar
month. Landlord's acceptance of less than the correct amount
of Rent shall be considered a payment on account of the
earliest Rent due. No endorsement or statement on a check or
letter accompanying a check or payment shall be considered an
accord and satisfaction, and either party may accept the check
or payment without prejudice to that party's right to recover
the balance or pursue other available remedies. Tenant's
covenant to pay Rent is independent of every other covenant in
this Lease.
B. Expense Excess and Tax Excess. Tenant shall pay Tenant's Pro
Rata Share of the amount, if any, by which Expenses (defined
in Section IV.C.) for each calendar year during the Term
exceed Expenses for the Base Year (the "Expense Excess") and
also the amount, if any, by which Taxes (defined in Section
IV.D.) for each calendar year during the Term exceed Taxes for
the Base Year (the "Tax Excess"). If Expenses and/or Taxes in
any calendar year decrease below the amount of Expenses and/or
Taxes for the Base Year, Tenant's Pro Rata Share of Expenses
and/or Taxes, as the case may be, for that calendar year shall
be $0. Landlord shall provide Tenant with a good faith
estimate of the Expense Excess and of the Tax Excess for each
calendar year during the Term. On or before the first day of
each month, Tenant shall pay to Landlord a monthly installment
equal to one-twelfth of Tenant's Pro Rata Share of Landlord's
estimate of the Expense Excess and one-twelfth of Tenant's Pro
Rata Share of Landlord's estimate of the Tax Excess. If
Landlord determines that its good faith estimate of the
Expense Excess or of the Tax Excess was incorrect by a
material amount, Landlord may provide Tenant with a revised
estimate. After its receipt of the revised estimate, Tenant's
monthly payments shall be based upon the revised estimate. If
Landlord does not provide Tenant with an estimate of the
Expense Excess or of the Tax Excess by January 1 of a calendar
year, Tenant shall continue to pay monthly installments based
on the previous year's estimate(s) until Landlord provides
Tenant with the new estimate. Upon delivery of the new
estimate, an adjustment shall be made for any month for which
Tenant paid monthly installments based on the previous year's
estimate(s). Tenant shall pay Landlord the amount of any
underpayment within 30 days after receipt of the new estimate.
Any overpayment shall be refunded to Tenant within 30 days or
credited against the next due future installment(s) of
Additional Rent.
As soon as is practical following the end of each calendar
year, Landlord shall furnish Tenant with a statement of the
actual Expenses and Expense Excess and the actual Taxes and
Tax Excess for the prior calendar year. If the estimated
Expense Excess and/or estimated Tax Excess for the prior
calendar year is more than the actual Expense Excess and/or
actual Tax Excess, as the case may be, for the prior calendar
year, Landlord shall apply any overpayment by Tenant against
Additional Rent due or next becoming due, provided if the Term
expires before the determination of the overpayment, Landlord
shall refund any overpayment to Tenant after first deducting
the amount of Rent due. If the estimated Expense Excess and/or
estimated Tax Excess for the prior calendar year is less than
the actual Expense Excess and/or actual Tax Excess, as the
case may be, for such prior year, Tenant shall pay Landlord,
within 30 days after its receipt of the statement of Expenses
and/or Taxes, any underpayment for the prior calendar year.
C. Expenses Defined. "Expenses" means all costs and expenses
incurred in each calendar year in connection with operating,
maintaining, repairing, and managing the Building and the
Property, including, but not limited to:
1. Labor costs, including, wages, salaries, social
security and employment taxes, medical and other
types of insurance, uniforms, training, and
retirement and pension plans, but excluding labor
costs for personnel
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above the grade of building manager or property
manager. Notwithstanding the foregoing, to the extent
management or maintenance personnel are located
off-site and perform management or maintenance
services for buildings other than the Building, the
labor costs associated with such management or
maintenance personnel shall be included in Expenses
only to the extent and in the proportion that such
management or maintenance personnel perform services
for the Building or Property, as the case may be.
2. Management fees, the cost of equipping and
maintaining a management office, accounting and
bookkeeping services, legal fees not attributable to
leasing or collection activity, and other
administrative costs. Landlord, by itself or through
an affiliate, shall have the right to directly
perform or provide any services under this Lease
(including management services), provided that the
cost of any such services shall not exceed the cost
that would have been incurred had Landlord entered
into an arms-length contract for such services with
an unaffiliated entity of comparable skill and
experience.
3. The cost of services, including amounts paid to
service providers and the rental and purchase cost of
parts, supplies, tools and equipment, but excluding
payments for rented equipment, the cost of which
would constitute a capital expenditure if the
equipment were purchased, in which event, Section
IV.C.6 below would govern the determination of
whether such costs are included in Expenses.
4. Premiums and deductibles paid by Landlord for
insurance, including workers compensation, fire and
extended coverage, earthquake, general liability,
rental loss, elevator, boiler and other insurance
customarily carried from time to time by owners of
comparable office buildings.
5. Electrical Costs (defined below) and charges for
water, gas, steam and sewer, but excluding those
charges for which Landlord is reimbursed by tenants.
"Electrical Costs" means: (a) charges paid by
Landlord for electricity; (b) costs incurred in
connection with an energy management program for the
Property; and (c) if and to the extent permitted by
Law, a fee for the services provided by Landlord in
connection with the selection of utility companies
and the negotiation and administration of contracts
for electricity, provided that such fee during any
particular calendar year shall not exceed 50% of any
savings obtained by Landlord with respect to such
calendar year. Electrical Costs shall be adjusted as
follows: (i) amounts received by Landlord as
reimbursement for above standard electrical
consumption shall be deducted from Electrical Costs;
(ii) the cost of electricity incurred to provide
overtime HVAC to specific tenants (as reasonably
estimated by Landlord) shall be deducted from
Electrical Costs; and (iii) if Tenant is billed
directly for the cost of building standard
electricity to the Premises as a separate charge in
addition to Base Rent, the cost of electricity to
individual tenant spaces in the Building shall be
deducted from Electrical Costs.
6. The amortized cost of capital improvements (as
distinguished from replacement parts or components
installed in the ordinary course of business) made to
the Property which are: (a) performed primarily to
reduce operating expense costs or otherwise improve
the operating efficiency of the Property; or (b)
required to comply with any Laws that are enacted, or
first interpreted to apply to the Property, after the
date of this Lease. The cost of capital improvements
shall be amortized by Landlord over the lesser of the
Payback Period (defined below) or 10 years. The
amortized cost of capital improvements may, at
Landlord's option, include actual or imputed interest
at the rate that Landlord would reasonably be
required to pay to finance the cost of the capital
improvement. "Payback Period" means the reasonably
estimated period of time that it takes for the cost
savings resulting from a capital improvement to equal
the total cost of the capital improvement.
Notwithstanding the foregoing, the portion of the
annual amortized costs to be included in
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Expenses in any calendar year with respect to a
capital improvement which is intended to reduce
expenses or improve the operating efficiency of the
Property or Building shall equal the lesser of: (i)
such annual amortized costs; and (ii) the actual
annual amortized reduction in expenses for that
portion of the amortization period of the capital
improvement which falls within the Term.
If Landlord incurs Expenses for the Property together with one
or more other buildings or properties, whether pursuant to a
reciprocal easement agreement, common area agreement or
otherwise, the shared costs and expenses otherwise permitted
or included in the meaning of "Expenses" shall be equitably
prorated and apportioned between the Property and the other
buildings or properties. Notwithstanding the foregoing, for
purposes of computing Tenant's Pro Rata Share of Expenses, the
Controllable Expenses (hereinafter defined) shall not increase
by more than 6% per calendar year determined for each calendar
year on a non-compounding and non-cumulative basis over the
course of the Term. In other words, Controllable Expenses for
the first calendar year after the Base Year shall not exceed
106% of the Controllable Expenses for the Base Year.
Controllable Expenses for the second calendar year after the
Base Year shall not exceed 106% of the lesser of the actual
Controllable Expenses or the limit on Controllable Expenses
for the first calendar year after the Base Year, etc. By way
of illustration, if Controllable Expenses were $10.00 per
rentable square for the Base Year, then Controllable Expenses
for the first (1st) calendar year following the Base Year
shall not exceed $10.60 per rentable square foot, and if
actual Controllable Expenses are $10.10 per rentable square
foot in such first calendar year, Controllable Expenses for
the second calendar year following the Base Year shall not
exceed $10.71 per rentable square foot. "Controllable
Expenses" shall mean all Expenses exclusive of the cost of
insurance, utilities and capital improvements.
Expenses shall not include: Taxes, the cost of capital
improvements or capital expenditures (except as set forth
above); depreciation; interest (except as provided above for
the amortization of capital improvements); principal payments
of mortgage and other non-operating debts of Landlord; the
cost of repairs or other work to the extent Landlord is
reimbursed by insurance or condemnation proceeds; costs in
connection with leasing space in the Building, including
brokerage commissions; lease concessions, including rental
abatements and construction allowances, granted to specific
tenants; costs incurred in connection with the sale, financing
or refinancing of the Building; fines, interest and penalties
incurred due to the late payment of Taxes (defined in Section
IV.D) or Expenses; organizational expenses associated with the
creation and operation of the entity which constitutes
Landlord; or any penalties or damages that Landlord pays to
Tenant under this Lease or to other tenants in the Building
under their respective leases.
Expenses shall also exclude the following:
a. Rental concessions granted to specific tenants and
expenses incurred in renovating or otherwise
improving or decorating, painting, or redecorating
space for specific tenants, other than ordinary
repairs and maintenance provided to all tenants.
b. All items (including repairs) and services for which
Tenant or other tenants pay directly to third parties
or for which Tenant or other tenants reimburse (or
are required to reimburse) Landlord (other than
through Expenses).
c. Costs, fines, interest, and penalties incurred due to
the late payments of taxes, utility bills and other
costs incurred by Landlord's failure to make such
payments when due unless such failure is due to
Landlord's good faith and reasonable efforts in
contesting the amount of such payments.
d. The cost or expense of any services or benefits
provided to other tenants in the Building and not
provided or available to Tenant.
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e. Payments for rented equipment, the cost of which
would constitute a capital expenditure if the
equipment were purchased, in which event, Section
IV.C.6 above would govern the determination of
whether such costs are included in Expenses.
f. Any fines or penalties incurred as a result of
violation by Landlord of any law, order, rule or
regulation of any governmental authority.
g. Any expenses for which Landlord has received actual
reimbursement (other than through Expenses).
h. Any cost or expense related to removal, cleaning,
abatement or remediation of "hazardous materials" in
or about the Building, Common Area or Property,
including, without limitation, hazardous substances
in the ground water or soil, except to the extent
such removal, cleaning, abatement or remediation is
related to the general repair and maintenance of the
Building, Common Area or Property.
i. All costs associated with the operation of the
business of the ownership or entity which constitutes
"Landlord" (as distinguished from the costs of
operating, maintaining, repairing and managing the
Building) including, but not limited to, Landlord's
general corporate overhead and general administrative
expenses.
j. Costs incurred by Landlord in connection with the
correction of defects in design and original
construction of the Building or other structural
defects of the Building.
k. Any fines, costs, penalties or interest resulting
from the adjudicated negligence or adjudicated
willful misconduct of the Landlord or its agents,
contractors, or employees.
l. Ground lease rental
m. Costs incurred by Landlord for the repair of damage
to the Building, to the extent that Landlord is
reimbursed for such costs by insurance proceeds,
judgments or other third party sources.
n. To the extent that parking revenues exceed parking
expenses, the costs incurred in owning (although
capital expenditures shall be excluded except to the
extent properly included pursuant to Section IV.C.6
above), operating, maintaining and repairing any
underground or above-ground parking garage and/or any
other parking facilities associated with the
Building.
If the Building is not at least 95% occupied during any
calendar year or if Landlord is not supplying services to at
least 95% of the total Rentable Square Footage of the Building
at any time during a calendar year, Expenses shall, at
Landlord's option, be determined as if the Building had been
95% occupied and Landlord had been supplying services to 95%
of the Rentable Square Footage of the Building during that
calendar year. If Tenant pays for its Pro Rata Share of
Expenses based on increases over a "Base Year" and Expenses
for a calendar year are determined as provided in the prior
sentence, Expenses for the Base Year shall also be determined
as if the Building had been 95% occupied and Landlord had been
supplying services to 95% of the Rentable Square Footage of
the Building. The extrapolation of Expenses under this Section
shall be performed by appropriately adjusting the cost of
those components of Expenses that are impacted by changes in
the occupancy of the Building. In no event shall Landlord be
entitled to a reimbursement from tenants for Expenses in
excess of 100% of the cost actually paid or incurred for
Expenses in any applicable calendar year.
D. Taxes Defined. "Taxes" shall mean: (1) all real estate taxes
and other assessments on the Building and/or Property,
including, but not limited to, assessments for special
improvement districts and building improvement
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districts, taxes and assessments levied in substitution or
supplementation in whole or in part of any such taxes and
assessments and the Property's share of any real estate taxes
and assessments under any reciprocal easement agreement,
common area agreement or similar agreement as to the Property;
(2) all personal property taxes for property that is owned by
Landlord and used in connection with the operation,
maintenance and repair of the Property; and (3) all costs and
fees incurred in connection with seeking reductions in any tax
liabilities described in (1) and (2), including, without
limitation, any costs incurred by Landlord for compliance,
review and appeal of tax liabilities. Without limitation,
Taxes shall not include any income, capital levy, franchise,
capital stock, gift, estate or inheritance tax. If an
assessment is payable in installments, Taxes for the year
shall include the amount of the installment and any interest
due and payable during that year. For all other real estate
taxes, Taxes for that year shall, at Landlord's election,
include either the amount accrued, assessed or otherwise
imposed for the year or the amount due and payable for that
year, provided that Landlord's election shall be applied
consistently throughout the Term. If a change in Taxes is
obtained for any year of the Term during which Tenant paid
Tenant's Pro Rata Share of any Tax Excess, then Taxes for that
year will be retroactively adjusted and Landlord shall provide
Tenant with a credit, if any, based on the adjustment.
Likewise, if a change is obtained for Taxes for the Base Year,
Taxes for the Base Year shall be restated and the Tax Excess
for all subsequent years shall be recomputed. Tenant shall pay
Landlord the amount of Tenant's Pro Rata Share of any such
increase in the Tax Excess within 30 days after Tenant's
receipt of a statement from Landlord.
E. Audit Rights. Tenant may, within 150 days after receiving
Landlord's statement of Expenses, give Landlord written notice
("Review Notice") that Tenant intends to review Landlord's
records of the Expenses for that calendar year. Within a
reasonable time after receipt of the Review Notice, Landlord
shall make all pertinent records available for inspection that
are reasonably necessary for Tenant to conduct its review. If
any records are maintained at a location other than the office
of the Building, Tenant may either inspect the records at such
other location or pay for the reasonable cost of copying and
shipping the records. If Tenant retains an agent to review
Landlord's records, the agent must be with a licensed CPA
firm. However, notwithstanding the foregoing, Landlord agrees
that Tenant may retain a third party agent to review
Landlord's books and records which third party agent is not a
CPA firm, so long as the third party agent retained by Tenant
shall have expertise in and familiarity with general industry
practice with respect to the operation of and accounting for a
first class office building and whose compensation shall in no
way be contingent upon or correspond to the financial impact
on Tenant resulting from the review. Tenant shall be solely
responsible for all costs, expenses and fees incurred for the
audit. Within 60 days after the records are made available to
Tenant, Tenant shall have the right to give Landlord written
notice (an "Objection Notice") stating in reasonable detail
any objection to Landlord's statement of Expenses for that
year. If Tenant fails to give Landlord an Objection Notice
within the 60 day period or fails to provide Landlord with a
Review Notice within the 150 day period described above,
Tenant shall be deemed to have approved Landlord's statement
of Expenses and shall be barred from raising any claims
regarding the Expenses for that year. If Tenant provides
Landlord with a timely Objection Notice, Landlord and Tenant
shall work together in good faith to resolve any issues raised
in Tenant's Objection Notice. If Landlord and Tenant determine
that Expenses for the calendar year are less than reported,
Landlord shall provide Tenant with a credit against the next
installment of Rent in the amount of the overpayment by
Tenant. Likewise, if Landlord and Tenant determine that
Expenses for the calendar year are greater than reported,
Tenant shall pay Landlord the amount of any underpayment
within 30 days. In addition, if Landlord and Tenant determine
that Expenses for the Building for the year in question were
less than stated by more than 5%, Landlord, within 30 days
after its receipt of paid invoices therefor from Tenant, shall
reimburse Tenant for any reasonable amounts paid by Tenant to
third parties in connection with such review by Tenant. The
records obtained by Tenant shall be treated as confidential.
In no event shall Tenant be permitted to examine Landlord's
records or to dispute any statement of Expenses unless Tenant
has paid and continues to pay all Rent when due.
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V. COMPLIANCE WITH LAWS; USE.
A. The Premises shall be used only for the Permitted Use and for
no other use whatsoever. Tenant shall not use or permit the
use of the Premises for any purpose which is illegal,
dangerous to persons or property or which, in Landlord's
reasonable opinion, unreasonably disturbs any other tenants of
the Building or interferes with the operation of the Building.
Tenant shall comply with all Laws, including the Americans
with Disabilities Act, regarding the operation of Tenant's
business and the use, condition, configuration and occupancy
of the Premises. Tenant, within 10 days after receipt, shall
provide Landlord with copies of any notices it receives
regarding a violation or alleged violation of any Laws.
Landlord, at its sole cost and expense (except to the extent
properly included in Expenses), shall be responsible for
correcting any violations of Title III of the Americans with
Disabilities Act with respect to the Common Areas of the
Building and the restroom facilities and elevator lobbies
within the Premises, provided that Landlord's obligation with
respect to the restroom facilities and elevator lobbies within
the Premises shall be limited to violations that arise out of
the Landlord Lobby Work (as described in EXHIBIT D) and/or the
condition of such portion of the Premises prior to any
improvements performed by Tenant in such portions of the
Premises and the installation of any furniture, equipment and
other personal property of Tenant within such portion of the
Premises. Notwithstanding the foregoing, Landlord shall have
the right to contest any alleged violation in good faith,
including, without limitation, the right to apply for and
obtain a waiver or deferment of compliance, the right to
assert any and all defenses allowed by law and the right to
appeal any decisions, judgments or rulings to the fullest
extent permitted by law. Landlord, after the exhaustion of any
and all rights to appeal or contest, will make all repairs,
additions, alterations or improvements necessary to comply
with the terms of any final order or judgment. Notwithstanding
the foregoing, Tenant, not Landlord, shall be responsible for
the correction of any violations that arise out of or in
connection with any claims brought under any provision of the
Americans with Disabilities Act other than Title III, the
specific nature of Tenant's business in the Premises (other
than general office use), the acts or omissions of Tenant, its
agents, employees or contractors, Tenant's arrangement of any
furniture, equipment or other property in the Premises, any
repairs, alterations, additions or improvements performed by
or on behalf of Tenant (other than the Landlord Lobby Work)
and any design or configuration of the Premises specifically
requested by Tenant after being informed that such design or
configuration may not be in strict compliance with the ADA.
B. Tenant shall comply with the rules and regulations of the
Building attached as EXHIBIT B and such other reasonable rules
and regulations adopted by Landlord from time to time. Tenant
shall also cause its agents, contractors, subcontractors,
employees, customers, and subtenants to comply with all rules
and regulations. Landlord shall not knowingly discriminate
against Tenant in Landlord's enforcement of the rules and
regulations. The rules and regulations shall be generally
applicable, and generally applied in the same manner, to all
tenants of the Building.
VI. SECURITY DEPOSIT.
The Security Deposit, if any, shall be delivered to Landlord upon the
execution of this Lease by Tenant and shall be held by Landlord without
liability for interest (unless required by Law) as security for the performance
of Tenant's obligations. The Security Deposit is not an advance payment of Rent
or a measure of Tenant's liability for damages. Landlord may, from time to time,
without prejudice to any other remedy, use all or a portion of the Security
Deposit to satisfy past due Rent or to cure any uncured default by Tenant. If
Landlord uses the Security Deposit, Tenant shall on demand restore the Security
Deposit to its original amount. Landlord shall return any unapplied portion of
the Security Deposit to Tenant within 45 days after the later to occur of: (1)
the determination of Tenant's Pro Rata Share of any Tax Excess and Expense
Excess for the final year of the Term; (2) the date Tenant surrenders possession
of the Premises to Landlord in accordance with this Lease; or (3) the
Termination Date. If Landlord transfers its interest in the Premises, Landlord
may assign the Security Deposit to the transferee and, following the assignment,
Landlord shall have no further liability for the return of
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the Security Deposit. Landlord shall not be required to keep the Security
Deposit separate from its other accounts.
VII. SERVICES TO BE FURNISHED BY LANDLORD.
A. Landlord agrees to furnish Tenant with the following services:
(1) Hot and cold water service for use in the lavatories on
each floor on which the Premises are located; (2) Heat and air
conditioning in season during Normal Business Hours in
accordance with the specifications attached hereto as EXHIBIT
F or as otherwise required by governmental authority, provided
that Landlord shall not be liable for any failure to maintain
the temperature ranges set forth in EXHIBIT F to the extent
that such failure arises out of either (a) an excess density
or electrical load within the Premises beyond any density or
load limits specified in this Lease, or (b) modifications
performed to the HVAC system by Tenant or any contractors
retained by Tenant, or (c) Tenant's failure to keep the window
covering in the Premises closed during appropriate times when
such portions of the Premises are exposed to direct sunlight,
it being agreed that Landlord and Tenant shall work
cooperatively with one another regarding a reasonable
determination as to when such window coverings should be
closed. Tenant, upon such advance notice as is reasonably
required by Landlord, shall have the right to receive HVAC
service during hours other than Normal Business Hours. Tenant
shall pay Landlord the standard charge for the additional
service as reasonably determined by Landlord from time to
time. As of the date hereof, Landlord's charge for after hours
heating and air conditioning service is $46.50 per hour for
the first floor (or portion thereof) requested by Tenant, and
$16.50 per hour for each additional floor (or portion thereof)
requested by Tenant; (3) Maintenance and repair of the
Property as described in Section IX.B.; (4) Janitor service on
Business Days in accordance with the cleaning specifications
attached hereto as EXHIBIT G, or such other reasonably
comparable specifications designated by Landlord from time to
time. If Tenant's use, floor covering or other improvements
require special services in excess of the standard services
for the Building, Tenant shall pay the additional cost
attributable to the special services; (5) Elevator service;
(6) Electricity to the Premises for general office use, in
accordance with and subject to the terms and conditions in
Article X; (7) Security to the Building, which may be provided
through a security system involving any one or a combination
of cameras, monitoring devices or guards, sign-in or
identification procedures or other comparable system; (8)
Replacement of Building standard fluorescent light bulbs/tubes
in Building standard light fixtures within the Premises; and
(9) such other services as Landlord reasonably determines are
necessary or appropriate for the Property.
B. Landlord's failure to furnish, or any interruption or
termination of, services due to the application of Laws, the
failure of any equipment, the performance of repairs,
improvements or alterations, or the occurrence of any event or
cause beyond the reasonable control of Landlord (a "Service
Failure") shall not render Landlord liable to Tenant,
constitute a constructive eviction of Tenant, give rise to an
abatement of Rent, nor relieve Tenant from the obligation to
fulfill any covenant or agreement. However, if the Premises,
or a material portion of the Premises, is made untenantable
for a period in excess of 3 consecutive Business Days as a
result of the Service Failure, then Tenant, as its sole
remedy, shall be entitled to receive an abatement of Rent
payable hereunder during the period beginning on the 4th
consecutive Business Day of the Service Failure and ending on
the day the service has been restored. If the entire Premises
has not been rendered untenantable by the Service Failure, the
amount of abatement that Tenant is entitled to receive shall
be prorated based upon the percentage of the Premises rendered
untenantable and not used by Tenant. In no event, however,
shall Landlord be liable to Tenant for any loss or damage,
including the theft of Tenant's Property (defined in Article
XV), arising out of or in connection with the failure of any
security services, personnel or equipment. Notwithstanding the
foregoing, if a Service Failure (a) continues for 60
consecutive days after the Service Failure; and (b) is not
being diligently remedied by Landlord, Tenant, as its sole
remedy, shall have the right to elect to terminate this Lease
within 10 days after the expiration of said 60 day period
without penalty, by delivering written notice to Landlord of
its election thereof; provided, however, if Landlord is
diligently pursuing the repair or restoration of the service,
Tenant shall not be
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entitled to terminate the Lease but rather Tenant's sole
remedy shall be to xxxxx Rent as provided above.
VIII. LEASEHOLD IMPROVEMENTS.
All improvements to the Premises (collectively, "Leasehold
Improvements") shall be owned by Landlord and shall remain upon the Premises
without compensation to Tenant. However, Landlord, by written notice to Tenant
within 30 days prior to the Termination Date (or at least 90 days prior to the
Termination Date if Tenant requests in writing at least 100 days prior to the
Termination Date that Landlord provide such written notice to Tenant on or
before such 90 day period) require Tenant to remove, at Tenant's expense: (1)
Cable (defined in Section IX.A) installed by or for the exclusive benefit of
Tenant and located in the Premises or other portions of the Building; and (2)
any Leasehold Improvements that are performed by or for the benefit of Tenant
and, in Landlord's reasonable judgment, are of a nature that would require
removal and repair costs that are materially in excess of the removal and repair
costs associated with standard office improvements (collectively referred to as
"Required Removables"). Without limitation, it is agreed that Required
Removables include internal stairways, raised floors, personal baths and
showers, vaults, rolling file systems and structural alterations and
modifications of any type. The Required Removables designated by Landlord shall
be removed by Tenant before the Termination Date, provided that upon prior
written notice to Landlord, Tenant may remain in the Premises for up to 5 days
after the Termination Date for the sole purpose of removing the Required
Removables, but in no event shall any such holdover in the Premises constitute
or create a tenancy-at-will under existing applicable law. Tenant's possession
of the Premises shall be subject to all of the terms and conditions of this
Lease, including the obligation to pay Rent on a per diem basis at the rate in
effect for the last month of the Term. Tenant shall repair damage caused by the
installation or removal of Required Removables. If Tenant fails to remove any
Required Removables or perform related repairs in a timely manner, Landlord, at
Tenant's expense, may remove and dispose of the Required Removables and perform
the required repairs. Tenant, within 30 days after receipt of an invoice, shall
reimburse Landlord for the reasonable costs incurred by Landlord.
Notwithstanding the foregoing, Tenant, at the time it requests approval for a
proposed Alteration (defined in Section IX.C), including any Initial Alterations
(as defined in EXHIBIT D), may request in writing that Landlord advise Tenant
whether the Alteration or any portion of the Alteration must be removed upon
termination of this Lease. Within 10 days after receipt of Tenant's request,
Landlord shall advise Tenant in writing as to which portions of the Alteration,
if any, will be required to be removed upon termination of this Lease.
IX. REPAIRS AND ALTERATIONS.
A. Tenant's Repair Obligations. Tenant shall, at its sole cost
and expense, promptly perform all maintenance and repairs to
the Premises that are not Landlord's express responsibility
under this Lease, and shall keep the Premises in good
condition and repair, reasonable wear and tear excepted.
Tenant's repair obligations include, without limitation,
repairs to: (1) floor covering; (2) interior partitions; (3)
doors; (4) the interior side of demising walls; (5)
electronic, phone and data cabling and related equipment
(collectively, "Cable") that is installed by or for the
exclusive benefit of Tenant and located in the Premises or
other portions of the Building; (6) supplemental air
conditioning units, private showers and kitchens, including
hot water heaters, plumbing, and similar facilities serving
Tenant exclusively; and (7) Alterations performed by
contractors retained by Tenant, including related HVAC
balancing. All work shall be performed in accordance with the
rules and procedures described in Section IX.C. below. If
Tenant fails to make any repairs to the Premises for more than
20 days after notice from Landlord (although notice shall not
be required if there is an emergency), Landlord may make the
repairs, and Tenant shall pay the reasonable cost of the
repairs to Landlord within 30 days after receipt of an
invoice, together with an administrative charge in an amount
equal to 10% of the cost of the repairs.
B. Landlord's Repair Obligations. Landlord shall keep and
maintain in good repair and working order and make repairs to
and perform maintenance upon: (1) structural elements of the
Building; (2) mechanical (including HVAC), electrical,
plumbing and fire/life safety systems serving the Building in
general; (3) Common Areas; (4) the roof of the Building; (5)
exterior windows and other exterior components of the
Building; (6) elevators serving the Building; and
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(7) the surface parking area servicing the Building. Landlord
shall promptly make repairs (considering the nature and
urgency of the repair) for which Landlord is responsible.
C. Alterations. Tenant shall not make alterations, additions or
improvements to the Premises or install any Cable in the
Premises or other portions of the Building (collectively
referred to as "Alterations") without first obtaining the
written consent of Landlord in each instance, which consent
shall not be unreasonably withheld, conditioned or delayed.
However, Landlord's consent shall not be required for any
Alteration that satisfies all of the following criteria (a
"Cosmetic Alteration"): (1) is of a cosmetic nature such as
painting, wallpapering, hanging pictures and installing
carpeting; (2) is not visible from the exterior of the
Premises or Building; (3) will not affect the systems or
structure of the Building; and (4) does not require work to be
performed inside the walls or above the ceiling of the
Premises. However, even though consent is not required, the
performance of Cosmetic Alterations shall be subject to all
the other provisions of this Section IX.C. Prior to starting
work, Tenant shall furnish Landlord with plans and
specifications reasonably acceptable to Landlord; names of
contractors reasonably acceptable to Landlord (provided that
Landlord may designate specific contractors with respect to
Building systems); copies of contracts; necessary permits and
approvals; evidence of contractor's and subcontractor's
insurance in amounts reasonably required by Landlord; and any
security for performance that is reasonably required by
Landlord. Changes to the plans and specifications must also be
submitted to Landlord for its approval. Alterations shall be
constructed in a good and workmanlike manner using materials
of a quality that is at least equal to the quality designated
by Landlord as the minimum standard for the Building. Landlord
may designate reasonable rules, regulations and procedures for
the performance of work in the Building and, to the extent
reasonably necessary to avoid disruption to the occupants of
the Building, shall have the right to designate the time when
Alterations may be performed. Tenant shall reimburse Landlord
within 30 days after receipt of an invoice for all reasonable
actual sums paid by Landlord for third party examination of
Tenant's plans for non-Cosmetic Alterations. In addition,
within 30 days after receipt of an invoice from Landlord,
Tenant shall pay Landlord a fee for Landlord's oversight and
coordination of any non-Cosmetic Alterations equal to the
actual reasonable cost incurred by Landlord with respect to
any third party professionals that Landlord is required to
retain in connection with the supervision of such non-Cosmetic
Alterations plus (i) with respect to non-Cosmetic Alterations
installed as part of the Initial Alterations (described in
EXHIBIT D) in the initial Premises or installed as part of the
initial alterations in any subsequent or additional space
added to the initial Premises, $1,000.00 for the first 24
hours that Landlord's personnel spends supervising such work
and $41.66 per hour for every hour thereafter that Landlord's
personnel spends supervising such work, or (ii) 3% of the cost
of any non-Cosmetic Alterations installed subsequent to the
Initial Alterations in the initial Premises or installed
subsequent to any initial alterations in any subsequent or
additional space added to the initial Premises. Upon
completion, Tenant shall furnish "as-built" plans (except for
Cosmetic Alterations), completion affidavits, full and final
waivers of lien and receipted bills covering all labor and
materials. Tenant shall assure that the Alterations comply
with all insurance requirements and Laws. Landlord's approval
of an Alteration shall not be a representation by Landlord
that the Alteration complies with applicable Laws or will be
adequate for Tenant's use.
D. Landlord may require Tenant to install one or more
supplemental HVAC unit(s) in any portion of the Premises
(including, in particular, any telephone service or telephone
conferencing area and any computer or data room or facility)
which will generate an excessive amount of heat, whether due
to its occupancy or use or any other cause. The supplemental
HVAC units must be approved by Landlord and be installed in a
location and manner approved by Landlord and shall be subject
to the terms of Section XII of EXHIBIT E. The cost to install,
maintain, repair and remove any supplemental HVAC units shall
be paid by Tenant.
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X. USE OF ELECTRICAL SERVICES BY TENANT.
A. Electricity used by Tenant in the Premises shall, at
Landlord's option, be paid for by Tenant either: (1) through
inclusion in Expenses (except as provided in Section X.B. for
excess usage); (2) by a separate charge payable by Tenant to
Landlord within 30 days after billing by Landlord; or (3) by
separate charge billed by the applicable utility company and
payable directly by Tenant. Electrical service to the Premises
may be furnished by one or more companies providing electrical
generation, transmission and distribution services, and the
cost of electricity may consist of several different
components or separate charges for such services, such as
generation, distribution and stranded cost charges. Landlord
shall have the exclusive right to select any company providing
electrical service to the Premises, to aggregate the
electrical service for the Property and Premises with other
buildings, to purchase electricity through a broker and/or
buyers group and to change the providers and manner of
purchasing electricity. Landlord shall be entitled to receive
a fee (if permitted by Law) for the selection of utility
companies and the negotiation and administration of contracts
for electricity, provided that such fee during any particular
calendar year shall not exceed 50% of any savings obtained by
Landlord with respect to such calendar year. In addition, if
Landlord bills Tenant directly for the cost of electricity as
an inclusion in Expenses or as Additional Rent, the cost of
electricity may include (if permitted by Law) an
administrative fee to reimburse Landlord for the cost of
reading meters, preparing invoices and related costs, which
administrative fee shall not exceed 15% of "Tenant's Total
Excess Electricity Cost", which shall mean the cost of
Tenant's Excess Electricity Usage (as defined in X.B. below),
based upon Landlord's average per kilowatt hour cost for
electricity for the Building. However, in no event will
Tenant's Total Excess Electricity Cost, plus the foregoing
fee, exceed the cost which Tenant would incur for Tenant's
Excess Electricity Usage if it were a direct retail customer
of Georgia Power Company or its successors, based upon the
tariffs that have been publicly filed with the Georgia Public
Service Commission.
B. Tenant's use of electrical service shall not exceed, either in
voltage, rated capacity, use beyond Normal Business Hours or
overall load, that which Landlord deems to be standard for the
Building. Any such excess use by Tenant is referred to as
"Tenant's Excess Electricity Usage". For purposes hereof, the
"electrical standard" for the Building is: (1) a design load
of 2.3 xxxxx per net usable square feet for 120/208 volts for
receptacle and incandescent lighting loads; (2) a design load
of 3.5 xxxxx per net usable square feet for 277/480 volts for
lighting loads; and (3) a consumption of 5.8 xxxxx per net
usable square feet of net usable area within the Premises at
60% of the calculated 120/208 load capacity. Landlord hereby
confirms that the foregoing standard is sufficient to support
a density of 1 person for every 150 square feet, assuming (i)
each person is utilizing no more electricity than would be
required to operate a personal computer, a personal calculator
and under-cubicle lighting during Normal Business Hours, and
(ii) such space contains only standard general office
equipment (fax machines, printers, copiers or similar
equipment) operated during Normal Business Hours in quantities
and of types and sizes as Landlord, in its reasonable
discretion, deems to be within the electrical standard for the
Building, as described above, considering the electrical usage
per item (i) above in this sentence. If Tenant requests
permission to consume excess electrical service, Landlord may
condition consent upon conditions that Landlord reasonably
elects (including, without limitation, the installation of
utility service upgrades, meters, submeters, air handlers or
cooling units), and the additional usage (to the extent
permitted by Law), installation and maintenance costs shall be
paid by Tenant. [Note: If Tenant provides Landlord with a list
describing the equipment requiring electricity that Tenant
intends to install in the Premises, including the amps and
voltage each piece of equipment draws, Landlord shall review
the list to determine whether the use of the listed equipment
is within the electrical standard for the Building.] Landlord
shall have the right to separately meter electrical usage for
the Premises and to measure electrical usage by survey or
other commonly accepted methods.
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XI. ENTRY BY LANDLORD.
A. Landlord, its agents, contractors and representatives may
enter the Premises to inspect or show the Premises, to clean
and make repairs, alterations or additions to the Premises,
and to conduct or facilitate repairs, alterations or additions
to any portion of the Building, including other tenants'
premises. Except in emergencies or to provide janitorial and
other Building services after Normal Business Hours, Landlord
shall provide Tenant with reasonable prior notice of entry
into the Premises, which may be given orally to the office
manager or other person within the Premises designated from
time to time by Tenant. If reasonably necessary for the
protection and safety of Tenant and its employees, Landlord
shall have the right to temporarily close all or a portion of
the Premises to perform repairs, alterations and additions.
However, except in emergencies, Landlord will not close the
Premises if the work can reasonably be completed on weekends
and after Normal Business Hours. Entry by Landlord shall not
constitute constructive eviction or entitle Tenant to an
abatement or reduction of Rent. Notwithstanding the foregoing,
if Landlord temporarily closes the Premises as provided above
for a period in excess of 3 consecutive days, Tenant, as its
sole remedy, shall be entitled to receive a per diem abatement
of Base Rent during the period beginning on the 4th
consecutive day of closure and ending on the date on which the
Premises are returned to Tenant in a tenantable condition. In
addition to the foregoing, if Landlord closes the Premises for
90 consecutive day(s) pursuant to this Section (and such
closure is not due to a casualty, in which case Article XVII
shall control with respect to such matter) and such repairs
necessitating such closure are not being diligently pursued by
Landlord, Tenant, as its sole remedy, shall have the right to
elect to terminate this Lease within 10 days after the
expiration of said 90 day period without penalty, by
delivering written notice to Landlord of its election thereof;
provided, however, if Landlord is diligently pursuing the
repair or restoration of the Premises, Tenant shall not be
entitled to terminate the Lease but rather Tenant's sole
remedy shall be to xxxxx Rent as provided above. Tenant,
however, shall not be entitled to an abatement or the
termination right under this Section if the repairs,
alterations and/or additions to be performed are required as a
result of the acts or omissions of Tenant, its agents,
employees or contractors, including, without limitation, a
default by Tenant in its maintenance and repair obligations
under the Lease.
B. Notwithstanding the foregoing, Tenant, at its own expense, may
provide its own locks to an area within the Premises to be
used by Tenant as its data center, as shown on the plans for
the Initial Alterations to be approved by Landlord, as
described in EXHIBIT D ("Secured Area"). Tenant shall furnish
Landlord with a key to the Secured Area and, upon the
expiration or earlier termination of this Lease, Tenant shall
surrender all keys to the Secured Area to Landlord. If
Landlord must gain access to the Secured Area in a
non-emergency situation, Landlord shall contact Tenant and
Landlord and Tenant shall arrange a mutually agreed upon time
for Landlord to do so. Landlord shall comply with all
reasonable security measures pertaining to the Secured Area.
If Landlord determines in its sole discretion that an
emergency in the Building or the Premises, including, without
limitation, a suspected fire or flood, requires Landlord to
gain access to the Secured Area, Tenant hereby authorizes
Landlord to enter the Secured Area. In such event, Landlord
shall have no liability whatsoever to Tenant. Landlord shall
have no obligation to provide either janitorial service or
cleaning in the Secured Area.
XII. ASSIGNMENT AND SUBLETTING.
A. Except in connection with a Permitted Transfer (defined in
Section XII.E. below), Tenant shall not assign, sublease,
transfer or encumber any interest in this Lease or allow any
third party to use any portion of the Premises (collectively
or individually, a "Transfer") without the prior written
consent of Landlord, which consent shall not be unreasonably
withheld, conditioned or delayed. Without limitation, it is
agreed that Landlord's consent shall not be considered
unreasonably withheld if: (1) the proposed transferee's
financial condition does not meet the criteria Landlord uses
to select Building tenants having similar leasehold
obligations; (2) the proposed transferee's business is not
suitable for
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the Building considering the business of the other tenants and
the Building's prestige, or would result in a violation of
another tenant's rights; (3) the proposed transferee is a
governmental agency or occupant of the Building; (4) Tenant is
then in default after the expiration of the notice and cure
periods in this Lease; or (5) any portion of the Building or
Premises would likely become subject to additional or
different Laws as a consequence of the proposed Transfer. Any
attempted Transfer in violation of this Article shall, at
Landlord's option, be void. Consent by Landlord to one or more
Transfer(s) shall not operate as a waiver of Landlord's rights
to approve any subsequent Transfers. In no event shall any
Transfer or Permitted Transfer release or relieve Tenant from
any obligation under this Lease.
B. As part of its request for Landlord's consent to a Transfer,
Tenant shall provide Landlord with financial statements for
the proposed transferee, a complete copy of the proposed
assignment, sublease and other contractual documents and such
other information as Landlord may reasonably request. Landlord
shall, by written notice to Tenant as soon as reasonably
possible, but in any event within 30 days of its receipt of
the required information and documentation, consent to the
Transfer by the execution of a consent agreement in a form
reasonably designated by Landlord or reasonably refuse to
consent to the Transfer in writing. Any such termination shall
be effective on the proposed effective date of the Transfer
for which Tenant requested consent. Tenant shall pay Landlord
a review fee of $750.00 for Landlord's review of any Permitted
Transfer or requested Transfer, provided if Landlord's actual
reasonable costs and expenses (including reasonable attorney's
fees) exceed $750.00, Tenant shall reimburse Landlord for its
actual reasonable costs and expenses in lieu of a fixed review
fee.
C. Tenant shall pay Landlord 50% of all rent and other
consideration which Tenant receives as a result of a Transfer
that is in excess of the Rent payable to Landlord for the
portion of the Premises and Term covered by the Transfer.
Tenant shall pay Landlord for Landlord's share of any excess
within 30 days after Tenant's receipt of such excess
consideration. Tenant may deduct from the excess all
reasonable and customary expenses directly incurred by Tenant
attributable to the Transfer (including Landlord's review
fee), including brokerage fees, reasonable marketing expenses,
legal fees and construction costs. If Tenant is in Monetary
Default (defined in Section XIX.A. below), Landlord may
require that all sublease payments be made directly to
Landlord, in which case Tenant shall receive a credit against
Rent in the amount of any payments received (less Landlord's
share of any excess, adjusted to reflect Tenant's expenses as
provided in the immediately preceding sentence). However, by
accepting any such payments directly from the subtenant,
whether as a result of the foregoing or otherwise, Landlord
does not waive any claims against the Tenant hereunder or
release Tenant from any obligations under this Lease, nor
recognize the subtenant as the tenant under the Lease.
D. Except as provided below with respect to a Permitted Transfer,
if Tenant is a corporation, limited liability company,
partnership, or similar entity, and if the entity which owns
or controls a majority of the voting shares/rights at any time
changes for any reason (including but not limited to a merger,
consolidation or reorganization), such change of ownership or
control shall constitute a Transfer. The foregoing shall not
apply so long as Tenant is an entity whose outstanding stock
is listed on a recognized security exchange, or if at least
80% of its voting stock is owned by another entity, the voting
stock of which is so listed.
E. Tenant may assign its entire interest under this Lease to a
successor to Tenant by purchase, merger, consolidation or
reorganization without the consent of Landlord, provided that
all of the following conditions are satisfied (a "Permitted
Transfer" and any such transferee a "Permitted Transferee"):
(1) Tenant is not in default under this Lease; (2) Tenant's
successor shall own all or substantially all of the assets of
Tenant; (3) Tenant's successor shall have a net worth which is
at least equal to Tenant's net worth at the date of this
Lease; (4) the Permitted Use does not allow the Premises to be
used for retail purposes; and (5) Tenant shall give Landlord
written notice at least 30 days prior to the effective date of
the proposed purchase, merger, consolidation or
reorganization. Tenant's notice to
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Landlord shall include information and documentation showing
that each of the above conditions has been satisfied. If
requested by Landlord, Tenant's successor shall sign a
commercially reasonable form of assumption agreement.
XIII. LIENS.
Tenant shall not permit mechanic's or other liens to be placed upon the
Property, Premises or Tenant's leasehold interest in connection with any work or
service done or purportedly done by or for benefit of Tenant or Tenant's
subtenant. If a lien is so placed, Tenant shall, within 10 days after the date
Tenant becomes aware of the filing of the lien or within 10 days of notice from
Landlord of the filing of the lien, whichever is first, fully discharge the lien
by settling the claim which resulted in the lien or by bonding or insuring over
the lien in the manner prescribed by the applicable lien Law. Unless Landlord
gave Tenant notice of the lien, Tenant shall promptly give Landlord notice of
the lien after becoming aware of same. If Tenant fails to so bond, insure over
or discharge the lien, then, in addition to any other right or remedy of
Landlord, Landlord may bond or insure over the lien or otherwise discharge the
lien. Tenant shall reimburse Landlord for any amount paid by Landlord to bond or
insure over the lien or discharge the lien, including, without limitation,
reasonable attorneys' fees (if and to the extent permitted by Law) within 30
days after receipt of an invoice from Landlord.
XIV. INDEMNITY AND WAIVER OF CLAIMS.
A. Except to the extent caused by the negligence or willful
misconduct of Landlord or any Landlord Related Parties
(defined below), Tenant shall indemnify, defend and hold
Landlord, its trustees, members, principals, beneficiaries,
partners, officers, directors, employees, Mortgagee(s)
(defined in Article XXVI) and agents ("Landlord Related
Parties") harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs,
charges and expenses, including, without limitation,
reasonable attorneys' fees and other professional fees (if and
to the extent permitted by Law), which may be imposed upon,
incurred by or asserted against Landlord or any of the
Landlord Related Parties and arising out of or in connection
with any damage or injury occurring in the Premises or any
acts or omissions (including violations of Law) of Tenant, the
Tenant Related Parties (defined below) or any of Tenant's
transferees, contractors or licensees.
B. Except to the extent caused by the negligence or willful
misconduct of Tenant or any Tenant Related Parties (defined
below), Landlord shall indemnify, defend and hold Tenant, its
trustees, members, principals, beneficiaries, partners,
officers, directors, employees and agents ("Tenant Related
Parties") harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs,
charges and expenses, including, without limitation,
reasonable attorneys' fees and other professional fees (if and
to the extent permitted by Law), which may be imposed upon,
incurred by or asserted against Tenant or any of the Tenant
Related Parties and arising out of or in connection with the
acts or omissions (including violations of Law) of Landlord,
the Landlord Related Parties or any of Landlord's contractors.
C. Except if the loss or damage results from the negligent or
willful misconduct of Landlord, Landlord and the Landlord
Related Parties shall not be liable for, and Tenant waives,
all claims for loss or damage to Tenant's business or loss,
theft or damage to Tenant's Property or the property of any
person claiming by, through or under Tenant resulting from:
(1) wind or weather; (2) the failure of any sprinkler, heating
or air-conditioning equipment, any electric wiring or any gas,
water or steam pipes; (3) the backing up of any sewer pipe or
downspout; (4) the bursting, leaking or running of any tank,
water closet, drain or other pipe; (5) water, snow or ice upon
or coming through the roof, skylight, stairs, doorways,
windows, walks or any other place upon or near the Building;
(6) any act or omission of any party other than Landlord or
Landlord Related Parties; and (7) any causes not reasonably
within the control of Landlord. Tenant shall insure itself
against such losses under Article XV below.
XV. INSURANCE.
Tenant shall carry and maintain the following insurance ("Tenant's
Insurance"), at its sole cost and expense: (1) Commercial General Liability
Insurance applicable to the
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Premises and its appurtenances providing, on an occurrence basis, a minimum
combined single limit of $2,000,000.00; (2) All Risk Property/Business
Interruption Insurance, including flood and earthquake, written at replacement
cost value and with a replacement cost endorsement covering all of Tenant's
trade fixtures, equipment, furniture and other personal property within the
Premises ("Tenant's Property"); (3) Workers' Compensation Insurance as required
by the state in which the Premises is located and in amounts as may be required
by applicable statute; and (4) Employers Liability Coverage of at least
$1,000,000.00 per occurrence. Any company writing any of Tenant's Insurance
shall have an A.M. Best rating of not less than A-VIII. All Commercial General
Liability Insurance policies shall name Tenant as a named insured and Landlord
(or any successor), Equity Office Properties Trust, a Maryland real estate
investment trust, EOP Operating Limited Partnership, a Delaware limited
partnership, and their respective members, principals, beneficiaries, partners,
officers, directors, employees, agents, and other designees of Landlord
(including Metropolitan Life Insurance Company, as mortgagee), as the interest
of such designees shall appear, as additional insureds. All policies of Tenant's
Insurance shall contain endorsements that the insurer(s) shall give Landlord and
its designees at least 30 days' advance written notice of any change,
cancellation, termination or lapse of insurance. Tenant shall provide Landlord
with a certificate of insurance evidencing Tenant's Insurance prior to the
earlier to occur of the Commencement Date or the date Tenant is provided with
possession of the Premises for any reason, and upon renewals at least 15 days
prior to the expiration of the insurance coverage. So long as the same is
available at commercially reasonable rates, Landlord shall maintain so called
All Risk property insurance on the Building at replacement cost value, as
reasonably estimated by Landlord. Landlord also shall maintain Commercial
General Liability coverage written on an occurrence basis with a minimum
combined single limit of at least Two Million Dollars ($2,000,000.00). Except as
specifically provided to the contrary, the limits of either party's' insurance
shall not limit such party's liability under this Lease.
XVI. SUBROGATION.
Notwithstanding anything in this Lease to the contrary, Landlord and
Tenant hereby waive, and shall cause their respective insurance carriers to
waive, any and all rights of recovery, claim, action or causes of action against
the other and their respective trustees, principals, beneficiaries, partners,
officers, directors, agents, and employees, for any loss or damage that may
occur to Landlord or Tenant or any party claiming by, through or under Landlord
or Tenant, as the case may be, with respect to Tenant's Property, the Building,
the Premises, any additions or improvements to the Building or Premises, or any
contents thereof, including all rights of recovery, claims, actions or causes of
action arising out of the negligence of Landlord or any Landlord Related Parties
or the negligence of Tenant or any Tenant Related Parties, which loss or damage
is (or would have been, had the insurance required by this Lease been carried)
covered by insurance.
XVII. CASUALTY DAMAGE.
A. If all or any part of the Premises is damaged by fire or other
casualty, Tenant shall immediately notify Landlord in writing.
During any period of time that all or a material portion of
the Premises is rendered untenantable as a result of a fire or
other casualty to the Premises or Building, the Rent shall
xxxxx for the portion of the Premises that is untenantable and
not used by Tenant. Landlord shall have the right to terminate
this Lease if: (1) the Building shall be damaged so that, in
Landlord's reasonable judgment, substantial alteration or
reconstruction of the Building shall be required (whether or
not the Premises has been damaged) and such damage cannot
reasonably be repaired within 60 days after the date of such
fire or other casualty; (2) Landlord is not permitted by Law
to rebuild the Building in substantially the same form as
existed before the fire or casualty; (3) the Premises have
been materially damaged and there is less than 18 months of
the Term remaining on the date of the casualty; (4) any
Mortgagee requires that the insurance proceeds be applied to
the payment of the mortgage debt; or (5) a material uninsured
loss to the Building occurs (other than due to Landlord's
failure to maintain the All Risk property insurance required
to be maintained by Landlord under Article XV of this Lease).
Landlord may exercise its right to terminate this Lease by
notifying Tenant in writing as soon as reasonably practicable,
but in any event within 90 days after the date of the
casualty. In addition to Landlord's rights to terminate as
provided herein, Tenant shall have the right to terminate this
Lease if: (a) all or a material portion of the Premises is
rendered untenantable as a result of a fire or other casualty
to the
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Premises or Building and such damage cannot reasonably be
repaired within 60 days after the date of such fire or other
casualty; (b) there is less than 18 months of the Term
remaining on the date of such casualty; and (c) Tenant
provides Landlord with written notice of its intent to
terminate within 20 days after the date Tenant receives
Landlord's Completion Estimate (as described in Section XVII.B
below). If neither Landlord nor Tenant terminate this Lease,
Landlord shall commence and proceed with reasonable diligence
to repair and restore the Building and the Leasehold
Improvements (excluding any Alterations that were performed by
Tenant in violation of this Lease). However, in no event shall
Landlord be required to spend more than the insurance proceeds
received by Landlord, provided that if Landlord does not have
sufficient proceeds to substantially complete the restoration
of the Leasehold Improvements in the Premises and Landlord
elects not to fund any shortfall, Landlord shall so notify
Tenant within 15 days of determination thereof, and Tenant,
within 20 days after receipt of such notice, shall have the
right to terminate this Lease by the giving of written notice
to Landlord. Landlord shall not be liable for any loss or
damage to Tenant's Property or to the business of Tenant
resulting in any way from the fire or other casualty or from
the repair and restoration of the damage. Landlord and Tenant
hereby waive the provisions of any Law relating to the matters
addressed in this Article, and agree that their respective
rights for damage to or destruction of the Premises shall be
those specifically provided in this Lease.
B. If all or any portion of the Premises shall be made
untenantable by fire or other casualty, Landlord shall, with
reasonable promptness, cause an architect or general
contractor selected by Landlord to provide Landlord and Tenant
with a written estimate of the amount of time required to
substantially complete the repair and restoration of the
Premises and make the Premises tenantable again, using
standard working methods ("Completion Estimate"). If the
Completion Estimate indicates that the Premises cannot be made
tenantable within 180 days from the date the repair and
restoration is started, then regardless of anything in Section
XVII.A above to the contrary, either party shall have the
right to terminate this Lease by giving written notice to the
other of such election within 20 days after receipt of the
Completion Estimate. Notwithstanding the foregoing, if Tenant
was entitled to but elected not to exercise its right to
terminate the Lease and Landlord does not substantially
complete the repair and restoration of the Premises within the
estimated period of time set forth in the Completion Estimate,
which period shall be extended to the extent of any
Reconstruction Delays, then Tenant may terminate this Lease by
written notice to Landlord within 15 days after the expiration
of such period, as the same may be extended. For purposes of
this Lease, the term "Reconstruction Delays" shall mean: (i)
any delays caused by the insurance adjustment process (it
being agreed that Landlord shall use reasonable efforts to
facilitate such process); (ii) any delays caused by Tenant;
and (iii) any delays caused by events of Force Majeure.
XVIII. CONDEMNATION.
Either party may terminate this Lease if the whole or any material part
of the Premises shall be taken or condemned for any public or quasi-public use
under Law, by eminent domain or private purchase in lieu thereof (a "Taking").
Landlord and Tenant shall also have the right to terminate this Lease if there
is a Taking of any portion of the Building or Property which would leave the
remainder of the Building unsuitable for use as an office building in a manner
comparable to the Building's use prior to the Taking. In order to exercise its
right to terminate the Lease, Landlord or Tenant, as the case may be, must
provide written notice of termination to the other within 45 days after the
terminating party first receives notice of the Taking. Any such termination
shall be effective as of the date the physical taking of the Premises or the
portion of the Building or Property occurs. If this Lease is not terminated, the
Rentable Square Footage of the Building, the Rentable Square Footage of the
Premises and Tenant's Pro Rata Share shall, if applicable, be appropriately
adjusted. In addition, Rent for any portion of the Premises taken or condemned
shall be abated during the unexpired Term of this Lease effective when the
physical taking of the portion of the Premises occurs. If a Taking results in
all or any portion of the Parking Area (described in Section I of EXHIBIT E)
being unavailable for use such that the parking spaces available for use by
Tenant is less than 6 parking spaces per 1000 rentable square feet in the
Premises, then Landlord will use reasonable efforts to provide Tenant with
alternative parking at other buildings owned by Landlord in the Perimeter Center
project on the west side of Perimeter Center Parkway so that
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the ratio of parking spaces available for use by Tenant in the Perimeter Center
project within such area is at least equal to the above ratio. All compensation
awarded for a Taking, or sale proceeds, shall be the property of Landlord, any
right to receive compensation or proceeds being expressly waived by Tenant.
However, Tenant may file a separate claim at its sole cost and expense for
Tenant's Property, the value of Tenant's leasehold interest, loss of business
and Tenant's reasonable relocation expenses, provided the filing of the claim
does not diminish the award which would otherwise be receivable by Landlord.
XIX. EVENTS OF DEFAULT.
Tenant shall be considered to be in default of this Lease upon the
occurrence of any of the following events of default:
A. Tenant's failure to pay when due all or any portion of the
Rent, if the failure continues for 5 days after written notice
to Tenant ("Monetary Default").
B. Tenant's failure (other than a Monetary Default) to comply
with any term, provision or covenant of this Lease, if the
failure is not cured within 20 days after written notice to
Tenant. However, if Tenant's failure to comply cannot
reasonably be cured within 20 days, Tenant shall be allowed
additional time (not to exceed 120 days) as is reasonably
necessary to cure the failure so long as: (1) Tenant commences
to cure the failure within 20 days, and (2) Tenant diligently
pursues a course of action that will cure the failure and
bring Tenant back into compliance with the Lease. However, if
Tenant's failure to comply creates a hazardous condition, the
failure must be cured immediately upon notice to Tenant. In
addition, if Landlord provides Tenant with notice of Tenant's
failure to comply with any particular term, provision or
covenant of the Lease (other than a monetary default) on 3
occasions during any 12 month period, Tenant's subsequent
violation of such term, provision or covenant shall, at
Landlord's option, be an incurable event of default by Tenant.
C. Tenant or any Guarantor becomes insolvent, makes a transfer in
fraud of creditors or makes an assignment for the benefit of
creditors, or admits in writing its inability to pay its debts
when due.
D. The leasehold estate is taken by process or operation of Law.
E In the case of any retail Tenant, Tenant does not take
possession of, or abandons or vacates all or any portion of
the Premises.
XX. REMEDIES.
A. Upon any default, Landlord shall have the right without notice
or demand (except as provided in Article XIX) to pursue any of
its rights and remedies at Law or in equity, including any one
or more of the following remedies:
1. Terminate this Lease, in which case Tenant shall
immediately surrender the Premises to Landlord. If
Tenant fails to surrender the Premises, Landlord may,
in compliance with applicable Law and without
prejudice to any other right or remedy, enter upon
and take possession of the Premises and expel and
remove Tenant, Tenant's Property and any party
occupying all or any part of the Premises. Tenant
shall pay Landlord on demand the amount of all past
due Rent and other losses and damages which Landlord
may suffer as a result of Tenant's default, whether
by Landlord's inability to relet the Premises on
satisfactory terms or otherwise, including, without
limitation, all Costs of Reletting (defined below)
and any deficiency that may arise from reletting or
the failure to relet the Premises. "Costs of
Reletting" shall include all costs and expenses
incurred by Landlord in reletting or attempting to
relet the Premises, including, without limitation,
reasonable legal fees, brokerage commissions, the
cost of alterations and the value of other
concessions or allowances granted to a new tenant.
Notwithstanding the foregoing, if Landlord relets the
Premises for a term (the "Relet Term") that extends
past the stated Termination Date hereof (without
consideration of any earlier termination pursuant to
this Article XX), the Proratable Costs of
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Reletting (hereinafter defined) shall be applied as
provided herein based on the percentage that the
length of the Term remaining hereunder on the date
Landlord terminates the Lease or Tenant's right to
possession bears to the length of the Relet Term. For
example, if there are 2 years left on the Term at the
time that Landlord terminates possession and, prior
to the expiration of such two year period, Landlord
enters into a Relet Term of 10 years with a new
tenant, 20% of the Proratable Costs of Reletting
shall be considered in determining Landlord's
damages. For purposes hereof, "Proratable Costs of
Reletting" shall mean the cost of renovating,
decorating and altering the Premises (except to the
extent that such work is necessary due to the acts of
Tenant and Tenant Related Parties), brokerage fees,
and other concessions granted to the new tenant such
as a moving allowance, lease assumption and rental
abatement.
2. Terminate Tenant's right to possession of the
Premises and, in compliance with applicable Law,
expel and remove Tenant, Tenant's Property and any
parties occupying all or any part of the Premises.
Landlord may (but shall not be obligated to except as
otherwise specifically provided below) relet all or
any part of the Premises, without notice to Tenant,
for a term that may be greater or less than the
balance of the Term and on such conditions (which may
include concessions, free rent and alterations of the
Premises) and for such uses as Landlord in its
absolute discretion shall determine. Landlord may
collect and receive all rents and other income from
the reletting. Tenant shall pay Landlord on demand
all past due Rent, all Costs of Reletting and any
deficiency arising from the reletting or failure to
relet the Premises. Landlord shall not be responsible
or liable for the failure to relet all or any part of
the Premises or for the failure to collect any Rent.
The re-entry or taking of possession of the Premises
shall not be construed as an election by Landlord to
terminate this Lease unless a written notice of
termination is given to Tenant. Landlord agrees to
use reasonable efforts to mitigate damages, provided
that such reasonable efforts shall not require
Landlord to relet the Premises in preference to any
other space in the Building or to relet the Premises
to any party that Landlord could reasonably reject as
a transferee pursuant to Section XII.A. hereof.
3. In lieu of calculating damages under Sections XX.A.1
or XX.A.2 above, Landlord may elect to receive as
damages the sum of (a) all Rent accrued through the
date of termination of this Lease or Tenant's right
to possession, and (b) an amount equal to the total
Rent that Tenant would have been required to pay for
the remainder of the Term discounted to present value
at the Prime Rate (defined in Section XX.B. below)
then in effect, minus the then present fair rental
value of the Premises for the remainder of the Term,
similarly discounted, after deducting all anticipated
Costs of Reletting.
B. Unless expressly provided otherwise in this Lease, the
repossession or re-entering of all or any part of the Premises
shall not relieve Tenant of its liabilities and obligations
under the Lease. No right or remedy of Landlord shall be
exclusive of any other right or remedy. Each right and remedy
shall be cumulative and in addition to any other right and
remedy now or subsequently available to Landlord at Law or in
equity. If Landlord declares Tenant to be in default, Landlord
shall be entitled to receive interest on any unpaid item of
Rent at a rate equal to the Prime Rate plus 4% per annum. For
purposes hereof, the "Prime Rate" shall be the per annum
interest rate publicly announced as its prime or base rate by
a federally insured bank selected by Landlord in the state in
which the Building is located. Forbearance by Landlord to
enforce one or more remedies shall not constitute a waiver of
any default.
XXI. LIMITATION OF LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS LEASE, THE
LIABILITY OF LANDLORD (AND OF ANY SUCCESSOR LANDLORD) TO TENANT SHALL BE LIMITED
TO THE INTEREST OF LANDLORD IN THE PROPERTY. TENANT
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SHALL LOOK SOLELY TO LANDLORD'S INTEREST IN THE PROPERTY FOR THE RECOVERY OF ANY
JUDGMENT OR AWARD AGAINST LANDLORD. NEITHER LANDLORD NOR ANY LANDLORD RELATED
PARTY SHALL BE PERSONALLY LIABLE FOR ANY JUDGMENT OR DEFICIENCY. BEFORE FILING
SUIT FOR AN ALLEGED DEFAULT BY LANDLORD, TENANT SHALL GIVE LANDLORD AND THE
MORTGAGEE(S) (DEFINED IN ARTICLE XXVI BELOW) WHOM TENANT HAS BEEN NOTIFIED HOLD
MORTGAGES (DEFINED IN ARTICLE XXVI BELOW) ON THE PROPERTY, BUILDING OR PREMISES,
NOTICE AND REASONABLE TIME TO CURE THE ALLEGED DEFAULT. SUCH CURE PERIOD SHALL
BE, FOR LANDLORD, AT LEAST 60 DAYS AFTER WRITTEN NOTICE OF DEFAULT FROM TENANT
TO LANDLORD (OR, IF THE DEFAULT CANNOT REASONABLY BE CURED WITHIN SAID 60 DAY
PERIOD, SUCH LONGER PERIOD OF TIME AS IS REASONABLY NECESSARY TO CURE SUCH
DEFAULT, PROVIDED LANDLORD COMMENCES THE CURE WITHIN SUCH 60 DAY PERIOD AND
DILIGENTLY PURSUES SAME), AND, FOR ANY MORTGAGEE, SUCH CURE PERIOD SHALL BE AT
LEAST 60 DAYS AFTER THE LATER OF (i) WRITTEN NOTICE OF DEFAULT FROM TENANT TO
SUCH MORTGAGEE, OR (ii) EXPIRATION OF THE CURE PERIOD AVAILABLE TO LANDLORD AS
PROVIDED ABOVE, (OR, IF THE DEFAULT CANNOT REASONABLY BE CURED WITHIN SAID 60
DAY PERIOD, SUCH LONGER PERIOD OF TIME AS IS REASONABLY NECESSARY TO CURE SUCH
DEFAULT, PROVIDED MORTGAGEE COMMENCES THE CURE WITHIN SUCH 60 DAY PERIOD AND
DILIGENTLY PURSUES SAME). NOTWITHSTANDING THE FOREGOING, IF TENANT AND ANY SUCH
MORTGAGEE HAVE AGREED TO A LONGER OR SHORTER PERIOD OF TIME IN ANY SEPARATE
AGREEMENT BY AND BETWEEN SUCH PARTIES, THE TERMS OF SUCH SEPARATE AGREEMENT
SHALL CONTROL AS BETWEEN TENANT AND SUCH MORTGAGEE.
XXII. NO WAIVER.
Either party's failure to declare a default immediately upon its
occurrence, or delay in taking action for a default shall not constitute a
waiver of the default, nor shall it constitute an estoppel. Either party's
failure to enforce its rights for a default shall not constitute a waiver of its
rights regarding any subsequent default. Receipt by Landlord of Tenant's keys to
the Premises shall not constitute an acceptance or surrender of the Premises.
XXIII. QUIET ENJOYMENT.
Tenant shall, and may peacefully have, hold and enjoy the Premises,
subject to the terms of this Lease, provided Tenant pays the Rent and fully
performs all of its covenants and agreements. This covenant and all other
covenants of Landlord shall be binding upon Landlord and its successors only
during its or their respective periods of ownership of the Building, and shall
not be a personal covenant of Landlord or the Landlord Related Parties.
XXIV. RELOCATION.
INTENTIONALLY OMITTED.
XXV. HOLDING OVER.
Except for any permitted occupancy by Tenant under Article VIII, if
Tenant fails to surrender the Premises at the expiration or earlier termination
of this Lease, occupancy of the Premises after the termination or expiration
shall be that of a tenancy at sufferance. Tenant's occupancy of the Premises
during the holdover shall be subject to all the terms and provisions of this
Lease. During the first 15 days of any such holdover, Tenant shall pay an amount
equal to 150% of the sum of the Base Rent and Additional Rent due for the period
immediately preceding the holdover, calculated and payable on a per day basis
for each day in such initial 15 day period that Tenant holds over in the
Premises. Thereafter, Tenant shall pay an amount (on a per month basis without
reduction for partial months during the holdover) equal to 150% of the greater
of: (1) the sum of the Base Rent and Additional Rent due for the period during
the Term immediately preceding the holdover without regard to any holdover
pursuant to the preceding sentence; or (2) the fair market gross rental for the
Premises as reasonably determined by Landlord. No holdover by Tenant or payment
by Tenant after the expiration or early termination of this Lease shall be
construed to extend the Term, to create a tenancy-at-will under applicable law,
or prevent Landlord from immediate recovery of possession of the Premises by
summary proceedings or otherwise. In addition to the payment of the amounts
provided above, if Landlord is unable to deliver possession of the Premises to a
new tenant, or
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to perform improvements for a new tenant, as a result of Tenant's holdover and
Tenant fails to vacate the Premises within 15 days after Landlord notifies
Tenant of Landlord's inability to deliver possession, or perform improvements,
Tenant shall be liable to Landlord for all damages, including, without
limitation, consequential damages, that Landlord suffers from the holdover.
Without limiting or affecting the foregoing provisions in this Article, Tenant
shall have the right to extend the Term for up to 2 months in accordance with
Section XIII of EXHIBIT E.
XXVI. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.
A. Tenant accepts this Lease subject and subordinate to any
mortgage(s), deed(s) of trust, ground lease(s) or other
lien(s) now or subsequently arising upon the Premises, the
Building or the Property, and to renewals, modifications,
refinancings and extensions thereof (collectively referred to
as a "Mortgage"). The party having the benefit of a Mortgage
shall be referred to as a "Mortgagee". This clause shall be
self-operative, but is subject to subsection B and subsection
C below. In lieu of having the Mortgage be superior to this
Lease, a Mortgagee shall have the right at any time to
subordinate its Mortgage to this Lease. If requested by a
successor-in-interest to all or a part of Landlord's interest
in the Lease, Tenant shall, without charge, attorn to the
successor-in-interest.
B. Notwithstanding the foregoing, Landlord will use reasonable
efforts to obtain a non-disturbance, subordination and
attornment agreement from Landlord's then current Mortgagee on
such current Mortgagee's form of agreement attached hereto as
EXHIBIT H. "Reasonable efforts" of Landlord shall not require
Landlord to incur any cost, expense or liability to obtain
such agreement, it being agreed that Tenant shall be
responsible for any fee or review costs charged by the
Mortgagee. Upon request of Landlord, Tenant will execute the
Mortgagee's form of non-disturbance, subordination and
attornment agreement attached hereto as EXHIBIT H and return
the same to Landlord for execution by the Mortgagee.
Landlord's failure to obtain a non-disturbance, subordination
and attornment agreement for Tenant from Landlord's current
Mortgagee shall have no effect on the rights, obligations and
liabilities of Landlord and Tenant or be considered to be a
default by Landlord hereunder.
C. Notwithstanding Section XXVI.A. above, Landlord will use
reasonable efforts to obtain a non-disturbance, subordination
and attornment agreement in favor of Tenant from any future
Mortgagee on such Mortgagee's then current standard form of
agreement (which may contain substantially similar provisions
as those set forth in EXHIBIT H). Notwithstanding the
foregoing, Tenant shall have the right to attempt to negotiate
commercially reasonable changes to such future Mortgagee's
form of non-disturbance, subordination and attornment
agreement. Upon agreement between Tenant and such future
Mortgagee, Tenant will execute such non-disturbance,
subordination and attornment agreement and return the same to
the future Mortgagee for execution. If Tenant and any future
Mortgagee are unable to agree upon the terms and conditions of
the non-disturbance, subordination and attornment agreement,
Tenant, upon request of such future Mortgagee, agrees to enter
into a non-disturbance, subordination and attornment agreement
on the form attached hereto as EXHIBIT H. Landlord's failure
to obtain a non-disturbance, subordination and attornment
agreement for Tenant from any future Mortgagee shall have no
effect on the rights, obligations and liabilities of Landlord
and Tenant or be considered to be a default by Landlord
hereunder, provided that if such future Mortgagee is unwilling
to enter into a non-disturbance, subordination and attornment
agreement with Tenant (either on a negotiated form or the form
attached hereto as EXHIBIT H), this Lease shall not be
subordinated to the Mortgage held by the future Mortgagee. If,
however, Tenant is unwilling to enter into such
non-disturbance, subordination and attornment agreement on the
form attached hereto as EXHIBIT H, such refusal shall be
considered to be a default hereunder by Tenant and Landlord
shall have no further obligation to attempt to obtain a
non-disturbance, subordination and attornment from such future
Mortgagee.
D. Landlord and Tenant shall each, within 10 days after receipt
of a written request from the other, execute and deliver an
estoppel certificate to those parties as are
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reasonably requested by the other (including a Mortgagee or
prospective purchaser). The estoppel certificate shall include
a statement certifying that this Lease is unmodified (except
as identified in the estoppel certificate) and in full force
and effect, describing the dates to which Rent and other
charges have been paid, representing that, to such party's
actual knowledge, there is no default (or stating the nature
of the alleged default) and indicating other matters with
respect to the Lease that may reasonably be requested.
XXVII. ATTORNEYS' FEES.
If either party institutes a suit against the other for violation of or
to enforce any covenant or condition of this Lease, or if either party
intervenes in any suit in which the other is a party to enforce or protect its
interest or rights, the prevailing party shall be entitled to all of its costs
and expenses, including, without limitation, reasonable attorneys' fees.
XXVIII. NOTICE.
If a demand, request, approval, consent or notice (collectively
referred to as a "notice") shall or may be given to either party by the other,
the notice shall be in writing and delivered by hand or sent by registered or
certified mail with return receipt requested, or sent by overnight or same day
courier service at the party's respective Notice Address(es) set forth in
Article I, except that if Tenant has vacated the Premises (or if the Notice
Address for Tenant is other than the Premises, and Tenant has vacated such
address) without providing Landlord a new Notice Address, Landlord may serve
notice in any manner described in this Article or in any other manner permitted
by Law. Each notice shall be deemed to have been received or given on the
earlier to occur of actual delivery (which, in the case of hand delivery, may be
deemed "actually delivered" by posting same on the exterior door of the Premises
or Landlord's management office, as the case may be) or the date on which
delivery is refused, or, if Tenant has vacated the Premises or the other Notice
Address of Tenant without providing a new Notice Address, 3 days after notice is
deposited in the U.S. mail or with a courier service in the manner described
above. Without affecting the foregoing provisions in any manner, Landlord agrees
that, in addition to delivering any notice to Tenant in the manner permitted
hereunder, Landlord shall mail notices to Tenant that are posted on the door of
the Premises to the most recent address (outside of the Premises) that Landlord
has on file for Tenant. Either party may, at any time, change its Notice Address
by giving the other party written notice of the new address in the manner
described in this Article.
XXIX. EXCEPTED RIGHTS.
This Lease does not grant any rights to light or air over or about the
Building. Landlord excepts and reserves exclusively to itself the use of: (1)
roofs (subject to the terms of Section VI of EXHIBIT E), (2) telephone,
electrical and janitorial closets, (3) equipment rooms, Building risers or
similar areas (subject to the terms of Section VI of EXHIBIT E) that are used by
Landlord for the provision of Building services, (4) rights to the land and
improvements below the floor of the Premises, (5) the improvements and air
rights above the Premises, (6) the improvements and air rights outside the
demising walls of the Premises, and (7) the areas within the Premises used for
the installation of utility lines and other installations serving occupants of
the Building. Landlord has the right to change the Building's name; provided,
however, Landlord shall not change the Building's name to include the name of a
Tenant Competitor (as defined below) without the written consent of Tenant, so
long as: (i) Tenant is not in monetary or material non-monetary default under
this Lease beyond any applicable notice and cure period; and (ii) Tenant is
leasing and occupying at least 50% of the rentable square footage of the
Building. As used herein, a "Tenant Competitor" shall mean any entity whose
primary business is generally recognized in the marketplace to be credit card
transaction processing. Landlord has the right to change the Building's address,
provided that Landlord shall use reasonable efforts to provide Tenant with at
least 60 days prior notice with respect to a change in the Building's street
address that will prohibit Tenant from receiving mail at the current address and
in the event Landlord fails to provide Tenant with at least 60 days prior
notice, Landlord shall reimburse Tenant for the cost of replacing all business
stationery on hand (not to exceed a two month's supply) at the effective date of
such change of address. Landlord also has the right to make such other changes
to the Property and Building as Landlord deems appropriate, provided the changes
do not materially affect Tenant's ability to use the Premises for the Permitted
Use. Landlord shall also have the right (but not the obligation) to temporarily
close the Building if Landlord reasonably determines that there is an imminent
danger of significant damage to the Building or of personal injury to Landlord's
employees or
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the occupants of the Building. The circumstances under which Landlord may
temporarily close the Building shall include, without limitation, electrical
interruptions, hurricanes and civil disturbances. A closure of the Building
under such circumstances shall not constitute a constructive eviction nor
entitle Tenant to an abatement or reduction of Rent. In addition to the
foregoing, if Landlord closes the Building for 90 consecutive day(s) pursuant to
this Section (and such closure is not due to a casualty, in which case Article
XVII shall control with respect to such matter) and Landlord is not diligently
pursuing reopening the Building, Tenant, as its sole remedy, shall have the
right to elect to terminate this Lease within 10 days after the expiration of
said 90 day period without penalty, by delivering written notice to Landlord of
its election thereof; provided, however, if Landlord is diligently pursuing the
reopening of the Building, Tenant shall not be entitled to terminate the Lease
but rather Tenant's sole remedy shall be to xxxxx Rent as provided above.
XXX. SURRENDER OF PREMISES.
At the expiration or earlier termination of this Lease or Tenant's
right of possession, Tenant shall remove Tenant's Property (defined in Article
XV) from the Premises, and quit and surrender the Premises to Landlord, broom
clean, and in good order, condition and repair, ordinary wear and tear excepted.
Tenant shall also be required to remove the Required Removables in accordance
with Article VIII. If Tenant fails to remove any of Tenant's Property within 2
Business Days after the termination of this Lease or of Tenant's right to
possession, Landlord, at Tenant's sole cost and expense, shall be entitled (but
not obligated) to remove and store Tenant's Property without liability to
Landlord. Landlord shall not be responsible for the value, preservation or
safekeeping of Tenant's Property. Tenant shall pay Landlord, upon demand, the
expenses and storage charges incurred for Tenant's Property. In addition, if
Tenant fails to remove Tenant's Property from the Premises or storage, as the
case may be, within 30 days after written notice, Landlord may deem all or any
part of Tenant's Property to be abandoned, and title to Tenant's Property shall
be deemed to be immediately vested in Landlord.
XXXI. MISCELLANEOUS.
A. This Lease and the rights and obligations of the parties shall
be interpreted, construed and enforced in accordance with the
Laws of the state in which the Building is located and
Landlord and Tenant hereby irrevocably consent to the
jurisdiction and proper venue of such state. If any term or
provision of this Lease shall to any extent be invalid or
unenforceable, the remainder of this Lease shall not be
affected, and each provision of this Lease shall be valid and
enforced to the fullest extent permitted by Law. The headings
and titles to the Articles and Sections of this Lease are for
convenience only and shall have no effect on the
interpretation of any part of the Lease.
B. Tenant shall not record this Lease or any memorandum without
Landlord's prior written consent.
C. Landlord and Tenant hereby waive any right to trial by jury in
any proceeding based upon a breach of this Lease.
D. Whenever a period of time is prescribed for the taking of an
action by Landlord or Tenant, the period of time for the
performance of such action shall be extended by the number of
days that the performance is actually delayed due to strikes,
acts of God, shortages of labor or materials, war, civil
disturbances and other causes beyond the reasonable control of
the performing party ("Force Majeure"). However, events of
Force Majeure shall not extend any period of time for the
payment of Rent or other sums payable by either party or any
period of time for the written exercise of an option or right
by either party.
E. Landlord shall have the right to transfer and assign, in whole
or in part, all of its rights and obligations under this Lease
and in the Building and/or Property referred to herein, and
upon such transfer Landlord shall be released from any further
obligations hereunder, and Tenant agrees to look solely to the
successor in interest of Landlord for the performance of such
obligations. However, notwithstanding the foregoing, Landlord
shall not be released from any obligations which arose prior
to the date of such transfer unless Landlord's successor in
interest shall have assumed such obligations of Landlord under
this
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Lease either by contractual obligation, assumption agreement
or by operation of law.
F. Tenant represents that it has dealt directly with and only
with the Broker as a broker in connection with this Lease.
Tenant shall indemnify and hold Landlord and the Landlord
Related Parties harmless from all claims of any other brokers,
agents or finders claiming to have represented Tenant in
connection with this Lease. Landlord agrees to indemnify and
hold Tenant and the Tenant Related Parties harmless from all
claims of any brokers, agents or finders claiming to have
represented Landlord in connection with this Lease. Landlord
agrees to pay a brokerage commission to Broker in accordance
with the terms of a separate written commission agreement to
be entered into by and between Landlord and Broker (the
"Commission Agreement"), provided that in no event shall
Landlord be obligated to pay a commission to Broker in
connection with any extension of the Term or in connection
with any additional space that is leased by Tenant pursuant to
the terms of this Lease except as may specifically be provided
otherwise in the Commission Agreement.
G. Tenant covenants, warrants and represents that: (1) each
individual executing, attesting and/or delivering this Lease
on behalf of Tenant is authorized to do so on behalf of
Tenant; (2) this Lease is binding upon Tenant; and (3) Tenant
is duly organized and legally existing in the state of its
organization and is qualified to do business in the state in
which the Premises are located. If there is more than one
Tenant, or if Tenant is comprised of more than one party or
entity, the obligations imposed upon Tenant shall be joint and
several obligations of all the parties and entities. Notices,
payments and agreements given or made by, with or to any one
person or entity shall be deemed to have been given or made
by, with and to all of them.
H. Time is of the essence with respect to payment of Rent and
Tenant's exercise of any expansion, renewal or extension
rights, or other option granted to Tenant. This Lease shall
create only the relationship of landlord and tenant between
the parties, and not a partnership, joint venture or any other
relationship. This Lease and the covenants and conditions in
this Lease shall inure only to the benefit of and be binding
only upon Landlord and Tenant and their permitted successors
and assigns.
I. The expiration of the Term, whether by lapse of time or
otherwise, shall not relieve either party of any obligations
which accrued prior to or which may continue to accrue after
the expiration or early termination of this Lease. Without
limiting the scope of the prior sentence, it is agreed that
Tenant's and Landlord's obligations under Sections IV.A,
IV.B., VIII, XIV, XX, XXV and XXX shall survive the expiration
or early termination of this Lease.
J. Landlord has delivered a copy of this Lease to Tenant for
Tenant's review only, and the delivery of it does not
constitute an offer to Tenant or an option. This Lease shall
not be effective against any party hereto until an original
copy of this Lease has been signed by such party and any
Mortgagee (defined in Article XXVI), if any, has approved the
terms of this Lease if required pursuant to the terms of the
mortgage loan documents relating to the Mortgage (defined in
Article XXVI) of such Mortgagee.
K. All understandings and agreements previously made between the
parties are superseded by this Lease, and neither party is
relying upon any warranty, statement or representation not
contained in this Lease. This Lease may be modified only by a
written agreement signed by Landlord and Tenant.
L. Tenant, within 15 days after request (but no more frequently
than twice annually), shall provide Landlord with a current
financial statement and such other information as Landlord may
reasonably request in order to create a "business profile" of
Tenant and determine Tenant's ability to fulfill its
obligations under this Lease. Landlord, however, shall not
require Tenant to provide such information unless Landlord is
requested to produce the information in connection with a
proposed financing or sale of the Building. Upon written
request by Tenant, Landlord shall enter into a commercially
reasonable
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confidentiality agreement covering any confidential
information that is disclosed by Tenant.
M. Tenant has only a usufruct, not subject to purchase or sale,
which may not be assigned by Tenant except as expressly
provided in this Lease.
XXXII. ENTIRE AGREEMENT.
This Lease and the following exhibits and attachments constitute the
entire agreement between the parties and supersede all prior agreements and
understandings related to the Premises, including all lease proposals, letters
of intent and other documents:
EXHIBIT A-1 Outline and Location of Premises A
EXHIBIT A-2 Outline and Location of Premises B
EXHIBIT A-3 Legal Description of Land on which Building is located
EXHIBIT A-4 Site Plan Showing Site of Future Building
EXHIBIT A-5 Outline and Location of Storage Space
EXHIBIT A-6 Outline and Location of Option Storage Space
EXHIBIT B Rules and Regulations
EXHIBIT C Commencement Letter (Intentionally Omitted)
EXHIBIT D Work Letter Agreement
EXHIBIT E Additional Provisions
EXHIBIT F HVAC Specifications
EXHIBIT G Cleaning Specifications
EXHIBIT H Subordination, Non-Disturbance and Attornment Agreement
EXHIBIT I Guaranty
Landlord and Tenant have executed this Lease as of the day and year
first above written.
LANDLORD:
EOP-PERIMETER CENTER, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY
By: EOP Operating Limited Partnership,
a Delaware limited partnership, its
sole member
By: Equity Office Properties Trust,
a Maryland real estate
investment trust, its managing
general partner
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
TENANT:
NOVA GEORGIA SERVICES, L.P., A GEORGIA LIMITED
PARTNERSHIP
By:
----------------------------
Name:
----------------------------
Title:
----------------------------
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EXHIBIT A-1
OUTLINE AND LOCATION OF PREMISES A
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 1999, by and between EOP-PERIMETER CENTER, L.L.C. ("Landlord")
and NOVA GEORGIA SERVICES, L.P. ("Tenant") for space in the Building located at
000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000.
PREMISES A - 46,318 RENTABLE SQUARE FEET
SUITES 200 AND 300
A-1
31
EXHIBIT A-2
OUTLINE AND LOCATION OF PREMISES B
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 1999, by and between EOP-PERIMETER CENTER, L.L.C. ("Landlord")
and NOVA GEORGIA SERVICES, L.P. ("Tenant") for space in the Building located at
000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000.
PREMISES B - 44,468 RENTABLE SQUARE FEET
SUITES 110, 111, 400, 410 AND 500
A-2
32
EXHIBIT A-3
LEGAL DESCRIPTION OF THE LAND ON WHICH THE BUILDING IS LOCATED
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 1999, by and between EOP-PERIMETER CENTER, L.L.C. ("Landlord")
and NOVA GEORGIA SERVICES, L.P. ("Tenant") for space in the Building located at
000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000.
ALL THAT TRACT or parcel of land lying and being in Land Xxx 000 xx xxx 00xx
Xxxxxxxx xx XxXxxx Xxxxxx, Xxxxx of Georgia, being more particularly described
as follows:
A-3
33
EXHIBIT A-4
SITE PLAN SHOWING SITE OF POTENTIAL FUTURE BUILDING
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 1999, by and between EOP-PERIMETER CENTER, L.L.C. ("Landlord")
and NOVA GEORGIA SERVICES, L.P. ("Tenant") for space in the Building located at
000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000.
A-4
34
EXHIBIT A-5
OUTLINE AND LOCATION OF STORAGE SPACE
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 1999, by and between EOP-PERIMETER CENTER, L.L.C. ("Landlord")
and NOVA GEORGIA SERVICES, L.P. ("Tenant") for space in the Building located at
000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000.
A-5
35
EXHIBIT A-6
OUTLINE AND LOCATION OF OPTION STORAGE SPACE
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 1999, by and between EOP-PERIMETER CENTER, L.L.C. ("Landlord")
and NOVA GEORGIA SERVICES, L.P. ("Tenant") for space in the Building located at
000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000.
A-6
36
EXHIBIT B
BUILDING RULES AND REGULATIONS
The following rules and regulations shall apply, where applicable, to
the Premises, the Building, the parking garage (if any), the Property and the
appurtenances. Capitalized terms have the same meaning as defined in the Lease.
1. Sidewalks, doorways, vestibules, halls, stairways and other similar
areas shall not be obstructed by Tenant or used by Tenant for any
purpose other than ingress and egress to and from the Premises. No
rubbish, litter, trash, or material shall be placed, emptied, or thrown
in those areas. At no time shall Tenant permit Tenant's employees to
loiter in Common Areas or elsewhere about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes
for which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed in the fixtures or appliances.
Damage resulting to fixtures or appliances by Tenant, its agents,
employees or invitees, shall be paid for by Tenant, and Landlord shall
not be responsible for the damage.
3. No signs, advertisements or notices shall be painted or affixed to
windows, doors or other parts of the Building, except those of such
color, size, style and in such places as are first approved in writing
by Landlord. All tenant identification and suite numbers at the
entrance to the Premises shall be installed by Landlord, at Tenant's
cost and expense, using the standard graphics for the Building. Except
in connection with the hanging of lightweight pictures and wall
decorations, no nails, hooks or screws shall be inserted into any part
of the Premises or Building except by the Building maintenance
personnel.
4. Landlord may provide and maintain in the first floor (main lobby) of
the Building an alphabetical directory board or other directory device
listing tenants, and no other directory shall be permitted unless
previously consented to by Landlord in writing. Landlord agrees that,
if a directory is not installed prior to the Commencement Date, then
Landlord will install a directory board or other directory device in
the main lobby of the Building as soon as reasonably possible following
the Commencement Date.
5. Subject to Section XI.B. of the Lease, Tenant shall not place any
lock(s) on any door in the Premises or Building without Landlord's
prior written consent and Landlord shall have the right to retain at
all times and to use keys to all locks within and into the Premises. A
reasonable number of keys to the locks installed by Landlord on the
entry doors in the Premises shall be furnished by Landlord to Tenant at
Tenant's cost, and Tenant shall not make any duplicate keys. All keys
shall be returned to Landlord at the expiration or early termination of
this Lease. As of the date of this Lease, Landlord provides 2 keys per
lock. Notwithstanding the foregoing, if Tenant performs the
improvements in the Premises, Tenant shall furnish Landlord with a key
for each lock to the entry doors in the Premises.
6. All contractors, contractor's representatives and installation
technicians performing work in the Building shall be subject to
Landlord's prior approval and shall be required to comply with
Landlord's standard rules, regulations, policies and procedures, which
may be revised from time to time.
7. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of merchandise or materials requiring the
use of elevators, stairways, lobby areas or loading dock areas, shall
be restricted to hours designated by Landlord. Tenant shall obtain
Landlord's prior approval by providing a detailed listing of the
activity. The activity shall be under the supervision of Landlord and
performed in the manner required by Landlord. Tenant shall assume all
risk for damage to articles moved and injury to any persons resulting
from the activity. If equipment, property, or personnel of Landlord or
of any other party is damaged or injured as a result of or in
connection with the activity, Tenant shall be solely liable for any
resulting damage or loss.
8. Landlord shall have the right to approve the weight, size, or location
of heavy equipment or articles in and about the Premises. Damage to the
Building by the installation,
B-1
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maintenance, operation, existence or removal of property of Tenant
shall be repaired at Tenant's sole expense.
9. Corridor doors, when not in use, shall be kept closed.
10. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in
any way with other tenants or persons having business with them; (2)
solicit business or distribute, or cause to be distributed, in any
portion of the Building, handbills, promotional materials or other
advertising; or (3) conduct or permit other activities in the Building
that might, in Landlord's sole and reasonable opinion, constitute a
nuisance.
11. No animals, except those assisting handicapped persons, shall be
brought into the Building or kept in or about the Premises.
12. No inflammable, explosive or dangerous fluids or substances shall be
used or kept by Tenant in the Premises, Building or about the Property,
except for those substances as are typically found in similar premises
used for general business office purposes and are being used by Tenant
in accordance with all applicable laws, rules and regulations. Tenant
shall not, without Landlord's prior written consent, use, store,
install, spill, remove, release or dispose of, within or about the
Premises or any other portion of the Property, any asbestos-containing
materials or any solid, liquid or gaseous material now or subsequently
considered toxic or hazardous under the provisions of 42 U.S.C. Section
9601 et seq. or any other applicable environmental Law which may now or
later be in effect. Tenant shall comply with all Laws pertaining to and
governing the use of these materials by Tenant, and shall remain solely
liable for the costs of abatement and removal.
13. Tenant shall not use or occupy the Premises in any manner or for any
purpose which might injure the reputation or impair the present or
future value of the Premises or the Building. Tenant shall not use, or
permit any part of the Premises to be used, for lodging, sleeping or
for any illegal purpose.
14. Tenant shall not take any action which would violate Landlord's labor
contracts or which would cause a work stoppage, picketing, labor
disruption or dispute, or interfere with Landlord's or any other
tenant's or occupant's business or with the rights and privileges of
any person lawfully in the Building ("Labor Disruption"). Tenant shall
take the actions necessary to resolve the Labor Disruption, and shall
have pickets removed and, at the request of Landlord, immediately
terminate any work in the Premises that gave rise to the Labor
Disruption, until Landlord gives its written consent for the work to
resume. Tenant shall have no claim for damages against Landlord or any
of the Landlord Related Parties, nor shall the date of the commencement
of the Term be extended as a result of the above actions.
15. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, electrical equipment that would overload
the electrical system beyond its capacity for proper, efficient and
safe operation as determined solely by Landlord. Tenant shall not
furnish cooling or heating to the Premises, including, without
limitation, the use of electronic or gas space heating devices, without
Landlord's prior written consent. Tenant shall not use more than its
proportionate share of telephone lines and other telecommunication
facilities available to service the Building.
16. Tenant shall not operate or permit to be operated a coin or token
operated vending machine or similar device (including, without
limitation, telephones, lockers, toilets, scales, amusement devices and
machines for sale of beverages, foods, candy, cigarettes and other
goods), except for machines for the exclusive use of Tenant's
employees, and then only if the operation does not violate the lease of
any other tenant in the Building.
17. Bicycles and other vehicles are not permitted inside the Building or on
the walkways outside the Building, except in areas designated by
Landlord.
18. Landlord may from time to time adopt systems and procedures for the
security and safety of the Building, its occupants, entry, use and
contents. Tenant, its agents,
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employees, contractors, guests and invitees shall comply with
Landlord's reasonable systems and procedures.
19. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's sole
reasonable opinion may impair the reputation of the Building or its
desirability. Upon written notice from Landlord, Tenant shall refrain
from and discontinue such publicity immediately.
20. Tenant shall not canvass, solicit or peddle in or about the Building or
the Property.
21. Neither Tenant nor its agents, employees, contractors, guests or
invitees shall smoke or permit smoking in the Common Areas, unless the
Common Areas have been declared a designated smoking area by Landlord,
nor shall the above parties allow smoke from the Premises to emanate
into the Common Areas or any other part of the Building. Landlord shall
have the right to designate the Building (including the Premises) as a
non-smoking building.
22. Landlord shall have the right to designate and approve standard window
coverings for the Premises and to establish rules to assure that the
Building presents a uniform exterior appearance. Tenant shall ensure,
to the extent reasonably practicable, that window coverings are closed
on windows in the Premises while they are exposed to the direct rays of
the sun.
23. Deliveries to and from the Premises shall be made only at the times, in
the areas and through the entrances and exits reasonably designated by
Landlord. Tenant shall not make deliveries to or from the Premises in a
manner that might interfere with the use by any other tenant of its
premises or of the Common Areas, any pedestrian use, or any use which
is inconsistent with good business practice.
24. The work of cleaning personnel shall not be hindered by Tenant after
5:30 P.M., and cleaning work may be done at any time when the offices
are vacant. Windows, doors and fixtures may be cleaned at any time.
Tenant shall provide adequate waste and rubbish receptacles to prevent
unreasonable hardship to the cleaning service.
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EXHIBIT C
COMMENCEMENT LETTER
INTENTIONALLY OMITTED
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EXHIBIT D
WORK LETTER
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 1999, by and between EOP-PERIMETER CENTER, L.L.C. ("Landlord")
and NOVA GEORGIA SERVICES, L.P. ("Tenant") for space in the Building located at
000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000.
A. Tenant, following the delivery of the Premises by Landlord and
the full and final execution and delivery of this Lease and
the Guaranty required hereunder, shall have the right to
perform alterations and improvements in the Premises (the
"Initial Alterations"). Notwithstanding the foregoing, Tenant
and its contractors shall not have the right to perform
Initial Alterations in the Premises unless and until Tenant
has complied with all of the terms and conditions of Article
IX.C. of this Lease, including, without limitation, approval
by Landlord of the final plans and the contractors to be
retained by Tenant to perform such Initial Alterations.
Landlord's review of the plans shall be as soon as reasonably
possible after receiving same from Tenant, but in any event
Landlord shall approve or disapprove the plans within 5
Business Days after the date Landlord receives the plans from
Tenant or the plans shall be deemed to have been approved by
Landlord for the Initial Alterations. Tenant shall be
responsible for all elements of the design of Tenant's plans
(including, without limitation, compliance with law,
functionality of design, the structural integrity of the
design, the configuration of the premises and the placement of
Tenant's furniture, appliances and equipment), and Landlord's
approval of Tenant's plans shall in no event relieve Tenant of
the responsibility for such design. Landlord hereby approves
INTEGRA CONSTRUCTION, INC. as the general contractor to
perform the Initial Alterations. Landlord's approval of any
other contractors to perform the Initial Alterations shall not
be unreasonably withheld.
As part of Tenant's Initial Alterations, Tenant, at its cost,
shall be required to test and balance the HVAC system(s)
serving the Premises using Landlord's recommended contractor
for such purpose. Tenant shall promptly provide Landlord with
a copy of the report generated by such contractor regarding
such matter and Tenant, at its cost, shall promptly and
properly rectify all problems noted in such report resulting
from Tenant's improvement or other construction work in the
Premises and otherwise comply with the actions recommended in
such report resulting from Tenant's improvement or other
construction work in the Premises.
B. Landlord agrees to contribute the sum of $1,906,506.00 (i.e.
$21.00 per rentable square foot in the initial Premises) (the
"Allowance") toward the cost of performing the Initial
Alterations in preparation of Tenant's occupancy of the
Premises. The Allowance shall be paid in at least 2
installments, and each such payment shall be subject to the
terms of Section D below. The first installment, equal to
51.5% of the total Allowance (the "Premises A Allowance"),
shall be paid upon the later of the Commencement Date or 30
days after the date Tenant provides Landlord with all
documentation described in Section D below as it relates to
the Initial Alterations to be performed in Premises A. The
second installment, equal to 48.5% of the total Allowance (the
"Premises B Allowance"), shall be paid upon the later of (1)
the earlier of (a) Premises B Commencement Date or (b) the
date Tenant commences paying Base Rent for the entire Premises
B, and (2) 30 days after the date Tenant provides Landlord
with all documentation described in Section D below as it
relates to the Initial Alterations to be performed in Premises
B.
Notwithstanding the foregoing, if Tenant completes the Initial
Alterations in one or more of the different suites comprising
Premises B, as currently demised, then Landlord shall provide
Tenant a proportionate share of the Premises B Allowance
(based upon the rentable square footage in such suite
comprising Premises B) upon the later of (x) the date Tenant
commences paying Base Rent for such suite comprising Premises
B, and (y) 30 days after the date Tenant provides Landlord
with all documentation described in Section D below as it
relates to the Initial Alterations to be performed in such
suite comprising Premises B.
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C. The Allowance may be used for the cost of preparing design and
construction documents and mechanical and electrical plans for
the Initial Alterations and for hard costs in connection with
the Initial Alterations and for any other lawful purpose
whatsoever designated by Tenant at its discretion, including,
without limitation, cabling costs, purchase of furniture or
equipment for the Premises, or the satisfaction of any other
lease obligations of Tenant unrelated to this Lease. If Tenant
does not use the entire Allowance within 12 months after the
Premises B Commencement Date, any unused amount shall accrue
to the sole benefit of Landlord, it being understood that
Tenant shall not be entitled to any credit, abatement or other
concession in connection therewith. Tenant shall be
responsible for all applicable state sales or use taxes, if
any, payable in connection with the Initial Alterations and/or
Allowance.
D. Subject to the terms of Section B above, until such time as
the Initial Alterations have been completed and fully paid for
with respect to Premises A or Premises B, as appropriate, the
Allowance shall be paid to Tenant or, at Landlord's option, to
the order of the general contractor that performed the Initial
Alterations, within 30 days following receipt by Landlord of
(1) receipted bills covering all labor and materials expended
and used in the Initial Alterations; (2) a sworn contractor's
affidavit from the general contractor and a request to
disburse from Tenant containing an approval by Tenant of the
work done; (3) full and final waivers of lien; (4) as-built
plans of the Initial Alterations; and (5) the certification of
Tenant and its architect that the Initial Alterations have
been installed in a good and workmanlike manner in accordance
with the approved plans, and in accordance with applicable
laws, codes and ordinances. The Allowance shall be disbursed
in the amount reflected in Section B hereof. Following the
date the Initial Alterations have been completed and fully
paid for with respect to Premises A or Premises B, as the case
may be, as evidenced by the documentation described above, any
remaining portion of the Premises A Allowance or the Premises
B Allowance, as the case may be, shall be paid directly to
Tenant. Notwithstanding anything herein to the contrary,
Landlord shall not be obligated to disburse any portion of the
Allowance during the continuance of an uncured default under
the Lease, and Landlord's obligation to disburse shall only
resume when and if such default is cured.
E. Subject to Landlord's completion of the Landlord Lobby Work
(as described in Section F below),Tenant agrees to accept the
Premises in its "as-is" condition and configuration, it being
agreed that Landlord shall not be required to perform any work
or, except as provided above with respect to the Allowance,
incur any costs in connection with the construction or
demolition of any improvements in the Premises.
F. Landlord agrees, at its cost, to improve the ceilings in the
elevator lobby areas on the 2nd and 3rd floors of the Building
substantially similar to the ceilings, as previously improved
by Landlord, in the elevator lobby areas on the 4th and 5th
floors of the Building (the "Landlord Lobby Work"). Landlord
shall use reasonable efforts to complete such work on or
before the Commencement Date of this Lease and, if such work
is not completed as of such date, Landlord shall diligently
pursue completion of such work so that it is completed as soon
as possible thereafter with as minimal interruption to
Tenant's business as possible. Landlord and Tenant agree to
work cooperatively with one another in order to enable
Landlord to timely satisfy its obligations under this Section
F.
G. Tenant agrees, as part of the Initial Alterations, to improve
the elevator lobby areas and connecting corridors on the 2nd
and 3rd floors of the Building in a manner similar to, and to
a standard no less than, that reflected in the elevator
lobbies and connecting corridors on the 4th and 5th floors of
the Building, as currently improved. Any finishes to be
included in such areas of the 2nd and 3rd floors shall be
reflected on the plans for the Initial Alterations, and shall
be subject to Landlord's reasonable approval. In connection
with such work, Tenant shall receive an additional allowance
equal to $15,366.00 (the "Lobby Allowance"), which shall be
payable to Tenant within 30 days after Landlord's receipt of
the documentation described in Section D above in connection
with such work.
H. If the cost of the Initial Alterations exceeds the sum of the
Allowance and Lobby Allowance (such excess is referred to
herein as the "Excess Costs"), and
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provided Tenant is not in default under this Lease, Tenant
shall have the right to borrow up to $10.00 per rentable
square foot of the initial Premises) (the "Additional
Allowance") from Landlord in order to finance the Excess Costs
during the Term. Any Additional Allowance borrowed by Tenant
hereunder shall be repaid to Landlord as Additional Rent in
equal monthly installments throughout the initial Term at an
interest rate equal to 12% per annum. If Tenant is in default
under this Lease after the expiration of applicable cure
periods, the entire unpaid balance of the Additional Allowance
borrowed by Tenant shall become immediately due and payable
and, except to the extent required by applicable law, shall
not be subject to mitigation or reduction in connection with a
reletting of the Premises by Landlord.
I. This EXHIBIT D shall not be deemed applicable to any
additional space added to the original Premises at any time or
from time to time, whether by any options under the Lease or
otherwise, or to any portion of the original Premises or any
additions to the Premises in the event of a renewal or
extension of the original Term of this Lease, whether by any
options under the Lease or otherwise, unless expressly so
provided in the Lease or any amendment or supplement to the
Lease.
Landlord and Tenant have executed this exhibit as of the day and year
first above written.
LANDLORD:
EOP-PERIMETER CENTER, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a Maryland
real estate investment trust, its managing
general partner
By: /s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
---------------------------------
Title: SVP - Southeast
---------------------------------
TENANT:
NOVA GEORGIA SERVICES, L.P., A GEORGIA LIMITED
PARTNERSHIP
By: /s/ Xxxxx XxXxxxxx
--------------------------------------
Name: Xxxxx XxXxxxxx
--------------------------------------
Title: SVP Human Resources
--------------------------------------
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EXHIBIT E
ADDITIONAL PROVISIONS
This Exhibit is attached to and made a part of the Lease dated as of
_____________, 1999, by and between EOP-PERIMETER CENTER, L.L.C. ("Landlord")
and NOVA GEORGIA SERVICES, L.P. ("Tenant") for space in the Building located at
000 Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000.
I. PARKING.
A. During the Term, Landlord shall make available up to 545
unreserved parking spaces (the "Spaces") in the Building
surface parking lot ("Parking Area") for the use of Tenant
and its employees. Up to 280 of such Spaces shall be
available as of the Premises A Commencement Date, and the
remaining Spaces shall be available as of the Premises B
Commencement Date or, if Tenant occupies and commences paying
Base Rent with respect to any portion of Premises B, then a
portion of the remaining Spaces (proportionate to the
rentable square footage in such portion of Premises B that
Tenant is occupying) shall be made available to Tenant as of
such date. No deductions or allowances shall be made for days
when Tenant or any of its employees does not utilize the
parking facilities or for Tenant utilizing less than all of
the Spaces. Tenant shall not have the right to lease or
otherwise use more than the number of reserved and unreserved
Spaces set forth above.
B. During the initial Term, the Spaces shall be available to
Tenant free of charge.
C. Except for particular spaces and areas designated by Landlord
for handicap, visitor or reserved parking, all parking in the
Parking Area serving the Building shall be on an unreserved,
first-come, first-served basis.
D. Landlord shall not be responsible for money, jewelry,
automobiles or other personal property lost in or stolen from
the Parking Area regardless of whether such loss or theft
occurs when the Parking Area is locked or otherwise secured.
Except as caused by the negligence or willful misconduct of
Landlord and without limiting the terms of the preceding
sentence, Landlord shall not be liable for any loss, injury
or damage to persons using the Parking Area or automobiles or
other property therein, it being agreed that, to the fullest
extent permitted by law, the use of the Spaces shall be at
the sole risk of Tenant and its employees.
E. Subject to Section K below, Landlord shall have the right
from time to time to designate the location of reserved
spaces, if any, to promulgate reasonable rules and
regulations regarding the Parking Area, the Spaces and the
use thereof, including, but not limited to, rules and
regulations controlling the flow of traffic to and from
various parking areas, the angle and direction of parking and
the like. Tenant shall comply with and cause its employees to
comply with all such rules and regulations as well as all
reasonable additions and amendments thereto.
F. Tenant shall not store or permit its employees to store any
automobiles in the Parking Area without the prior written
consent of Landlord. Except for emergency repairs, Tenant and
its employees shall not perform any work on any automobiles
while located in the Garage or on the Property. If it is
necessary for Tenant or its employees to leave an automobile
in the Parking Area overnight, Tenant shall provide Landlord
with prior notice thereof designating the license plate
number and model of such automobile.
G. Landlord shall have the right to temporarily close the
Parking Area or certain areas therein in order to perform
necessary repairs, maintenance and improvements to the
Parking Area, if any.
H. Tenant shall not assign or sublease any of the Spaces without
the consent of Landlord. Landlord shall have the right to
terminate this Parking Agreement with respect to any Spaces
that Tenant attempts to sublet or assign.
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I. Landlord may elect to provide parking cards or keys to
control access to the Parking Area. In such event, Landlord
shall provide Tenant with one card or key for each Space that
Tenant is leasing hereunder, provided that Landlord shall
have the right to require Tenant or its employees to place a
deposit on such access cards or keys and to pay a fee for any
lost or damaged cards or keys.
J. Landlord hereby reserves the right to enter into a management
agreement or lease with an entity for the Parking Area
("Parking Operator"). In such event, Tenant, upon request of
Landlord, shall enter into a parking agreement with the
Parking Operator (but shall not be required to pay the
Parking Operator any charge or fee therefor), if any,
established hereunder, and Landlord shall have no liability
for claims arising through acts or omissions of the Parking
Operator unless caused by Landlord's negligence or willful
misconduct. It is understood and agreed that the identity of
the Parking Operator may change from time to time during the
Term. Tenant hereby consents to the assignment, from time to
time, of the initial or any successor Parking Operator's
interest in the Parking to another Parking Operator.
K. Tenant is concerned that Landlord may designate all or a
significant number of the parking spaces located in the first
rows of parking on the east and west sides of the Building as
reserved parking for use by a tenant of the Building other
than Tenant. Therefore, notwithstanding anything to the
contrary contained herein, Landlord agrees that, so long as
Tenant leases and occupies at least 50% of the rentable
square footage in the Building, Landlord will always retain a
proportionate share (i.e. equal to Tenant's Pro Rata Share,
as described in Section I.E. of this Lease) of such parking
spaces in the first row of parking on the east and west sides
of the Building as non-reserved or, if reserved, such spaces
will be reserved for the benefit of Tenant or its permitted
successors or assigns. It is agreed that parking spaces
reserved for use by Landlord and its staff (up to 4 parking
spaces) or designated as handicap or visitor parking shall
not be considered "reserved" for purposes of this Section K.
II. PARKING DECK STRUCTURE. Tenant shall have the right to build a parking
deck for the use of Tenant, its employees, contractors, visitors and
invitees at any time during the Term. It is agreed that the
construction of the parking deck will be completed at Tenant's sole
cost and expense. The location, plans and specifications of the
parking deck shall comply with all laws, statutes, ordinances, rules
and regulations of any governmental authority having jurisdiction and
shall be subject to Landlord's and governmental approval. Tenant, at
its cost, shall be responsible for all taxes, maintenance, repair and
replacement of the parking deck. Tenant, at its cost, shall insure the
parking deck against casualty loss and provide evidence of same,
naming Landlord as an additional insured thereunder, as described in
Article XV of this Lease. Tenant's insurance obligations described in
Article XV of the Lease shall be equally applicable to the parking
deck. The terms and provisions of Article XIV of the Lease shall be
equally applicable with respect to the parking deck and, for such
purpose, the parking deck shall be deemed a part of the Premises. At
the expiration or earlier termination of this Lease, the parking deck
shall be deemed transferred to Landlord and, upon request of Landlord,
Tenant shall deliver a Xxxx of Sale or such other documents as
Landlord may require to evidence such transfer.
III. RIGHT OF FIRST OFFER/ RIGHT OF FIRST REFUSAL.
It is intended that Tenant shall have a right of first offer with
respect to any space that becomes available in the Building described
in Section I.A. of this Lease or in the Building located at 000
Xxxxxxxxx Xxxxxx Xxxxxxx xx Xxxxxxx, Xxxxxxx ("Building 223").
However, if Tenant fails to exercise its right of first offer with
respect to a particular space, whether because Tenant was uninterested
in such space at the time Landlord offered it to Tenant pursuant to
the right of first offer or because Tenant was unable to exercise its
right of first offer because Tenant was in violation of one or more of
the conditions described in Paragraph A of this Section III, then the
parties intend that Tenant shall nonetheless have a right of first
refusal on any portion of such space which is later desired by a
prospective tenant. The foregoing shall be in accordance with and
subject to the following provisions of this Section III.
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X. Xxxxx of Right of First Offer.
1. Tenant shall have the one time right of first offer
(the "Right of First Offer") with respect to (a) any
space in the Building hereunder (as described in
Section I.A. of this Lease), and (b) any space in
Building 223 (as described above in this Section
III). Any space which becomes available for lease,
as described in Section III.A.2. below, whether
located in the Building hereunder or in Building
223, is referred to herein as an "Offering Space".
2. Each such Right of First Offer shall be exercised as
follows: At any time after Landlord has determined
that any particular Offering Space located in the
Building or Building 223 will become available for
lease [meaning that the existing tenant in such
space, Federated Department Stores, or its
successor, has waived its renewal rights with
respect to any particular Offering Space or the time
period for Federated Department Stores or its
successors to exercise any such renewal rights has
expired (such renewal rights are currently scheduled
to expire June 30, 2000)] (but prior to leasing such
Offering Space to a party other than the existing
tenant or occupant of such Offering Space pursuant
to the exercise of currently existing renewal or
extension rights), Landlord shall advise Tenant (the
"ROFO Advice") that such particular Offering Space
in the Building or Building 223 is available for
lease. Upon receipt of the ROFO Advice, Tenant shall
have the right to lease such Offering Space, in its
entirety, on the terms and conditions described in
Section III.C below by delivering written notice of
exercise to Landlord ("Notice of Exercise") within 7
days after Tenant's receipt of the ROFO Advice.
However, notwithstanding anything to the contrary
contained herein, Tenant shall have no such Right of
First Offer with respect to such Offering Space and
Landlord need not provide Tenant with a ROFO Advice
with respect to such Offering Space if:
a. Tenant is in default under the Lease beyond
any applicable notice and cure period at
the time Landlord would otherwise deliver
the ROFO Advice; or
b. more than 25% of the Premises is sublet at
the time Landlord would otherwise deliver
the ROFO Advice; or
c. the Lease has been assigned other than to a
Permitted Transferee (as defined in Section
XII.E of this Lease) or an Affiliate of
Tenant (as defined in Section I.S. of this
Lease) prior to the date Landlord would
otherwise deliver the ROFO Advice; or
d. Tenant or an Affiliate of Tenant is not
occupying the Premises on the date Landlord
would otherwise deliver the ROFO Advice; or
e. the Offering Space is not intended for the
exclusive use of Tenant during the Term; or
f. the existing tenant in the Offering Space
is interested in extending or renewing its
lease for the Offering Space or entering
into a new lease for such Offering Space
pursuant to the exercise of currently
existing renewal or extension rights of
such tenant.
If Tenant fails to exercise its Right of First Offer with
respect to a particular Offering Space, Tenant shall
nonetheless continue to have a Right of First Offer with
respect to any other Offering Space which becomes available
for Lease, as described in this Section 2.
B. Right of First Refusal. Notwithstanding anything herein to the
contrary, if Tenant fails to exercise its Right of First Offer
with respect to a particular Offering Space which was offered
to Tenant, whether because Tenant was uninterested in such
Offering Space at the time or because Tenant had failed to
satisfy the conditions described in Paragraph A above, Tenant
shall nonetheless have a right of first
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refusal (the "Right of First Refusal") with respect to such
particular Offering Space (or the portion which a Prospect
(as defined below) is interested in). Tenant's Right of First
Refusal shall be exercised as follows: when Landlord has a
prospective tenant ("Prospect") interested in leasing the
Offering Space (or a portion thereof), as evidenced by an
acceptable letter of intent negotiated at arms length with a
bona fide, unaffiliated party, Landlord shall advise Tenant
(the "RFR Advice") that a Prospect is interested in leasing
the Offering Space (or portion thereof) in the Building or
Building 223 (such space desired by the Prospect is also
referred to herein as "Offering Space"). Tenant shall have
the right to lease the Offering Space (or portion thereof)
desired by the Prospect, on the terms and conditions
described in Section III.C. below, by providing Landlord with
Notice of Exercise within 7 days after Tenant's receipt of
the RFR Advice, except that Tenant shall have no such Right
of First Refusal and Landlord need not provide Tenant with a
RFR Advice with respect to such Offering Space if Tenant is
in violation of one or more of the conditions set forth in
subsections III.A.2.(a) - (f) above (it being agreed that all
references to the "ROFO Advice" in subsections III.A.2.
(a) - (f) above shall instead refer to the "RFR Advice" when
it pertains to this Section III.B.).
C. Terms for Offering Space. The terms for each Offering Space,
whether added to the Premises as a result of Tenant's
exercise of the Right of First Offer or as a result of
Tenant's exercise of the Right of First Refusal, shall be as
follows:
1. The term(s) for each Offering Space shall commence
upon the commencement date stated in the ROFO Advice
or RFR Advice, as applicable, and thereupon such
space shall be considered a part of the Premises,
provided that Tenant shall not be entitled to
receive any abatements, allowances or other
financial concessions granted with respect to the
initial Premises except as specifically set forth
herein with respect to the Offering Space. The term
for each Offering Space shall end on the Termination
Date of this Lease, as same may be extended, it
being the intention of the parties that the Term for
the initial Premises and the term for each Offering
Space shall be coterminous.
2. With respect to Offering Space in Building 223:
a. Tenant shall pay Base Rent and Additional
Rent for the Offering Space in Building 223
in accordance with the terms and conditions
described in the ROFO Advice or RFR Advice,
as applicable, which terms and conditions
shall reflect the Prevailing Market rate
(described in Section III.G. below) for the
Offering Space as determined in Landlord's
reasonable judgment. Notwithstanding the
foregoing, if Tenant, in its reasonable
judgment, determines that the rate set
forth in the ROFO Advice or RFR Advice, as
applicable, does not accurately reflect the
Prevailing Market rate for the Offering
Space, Tenant shall have the right to
provide Landlord with a Notice of Exercise
that is specifically conditioned upon
Landlord's and Tenant's agreement on the
Prevailing Market rate for the Offering
Space. In such event, for a period of
fifteen (15) days after the date of
Tenant's Notice of Exercise, Landlord and
Tenant shall work together in good faith to
determine the Prevailing Market rate for
the Offering Space. If Landlord and Tenant
fail to agree upon the Prevailing Market
rate within such 15 day period, Tenant, by
written notice to Landlord (the
"Arbitration Notice") within 15 days after
the expiration of such 15 day period, shall
have the right to have the Prevailing
Market rate determined in accordance with
the following arbitration procedures
described in Subsection (b) below. If
Tenant fails to exercise its right to
arbitrate, Tenant's Right of First Offer
(or Right of First Refusal, as applicable)
with respect to such Offering Space shall
be deemed to be null and void and of no
further force and effect, subject to
Tenant's continuing Right of First Refusal
with respect to such Offering Space in
Building 223 as described in Section
III.E.2 below. Tenant's failure to
specifically condition its Notice of
Exercise as
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described above in this subsection 2 shall
be deemed an acceptance of the Prevailing
Market rate designated by Landlord.
b. Arbitration Procedure.
i. If Tenant provides Landlord with
an Arbitration Notice, Landlord
and Tenant, within 10 days after
the date of the Arbitration
Notice, shall each simultaneously
submit to the other, in a sealed
envelope, its good faith estimate
of the Prevailing Market rate for
the Offering Space (collectively
referred to as the "Estimates").
If the Estimates are the same,
then Prevailing Market rate shall
be the rate in the Estimates. If
the Prevailing Market rate is not
resolved by the exchange of
Estimates, Landlord and Tenant,
within 7 days after the exchange
of Estimates, shall each select an
appraiser meeting the
qualifications below to determine
which of the two Estimates most
closely reflects the Prevailing
Market rate for the Offering
Space.
Each appraiser so selected shall be
certified as an MAI appraiser or as
an ASA appraiser and shall have had
at least 5 years experience within
the previous 10 years as a real
estate appraiser working in the
central Perimeter submarket in
Atlanta, Georgia, with working
knowledge of current rental rates
and practices. For purposes of this
Lease, an "MAI" appraiser means an
individual who holds an MAI
designation conferred by, and is an
independent member of, the American
Institute of Real Estate Appraisers
(or its successor organization, or
in the event there is no successor
organization, the organization and
designation most similar), and an
"ASA" appraiser means an individual
who holds the Senior Member
designation conferred by, and is an
independent member of, the American
Society of Appraisers (or its
successor organization, or, in the
event there is no successor
organization, the organization and
designation most similar).
ii. Upon selection, Landlord's and
Tenant's appraisers shall work
together in good faith to agree
upon which of the two Estimates
most closely reflects the
Prevailing Market rate for the
Offering Space. The Estimate
chosen by such appraisers shall be
binding on both Landlord and
Tenant as the Base Rent rate for
the Offering Space, subject to the
terms of Subsection b.iii. below.
If either Landlord or Tenant fails
to appoint an appraiser within the
7 day period referred to above,
the appraiser appointed by the
other party shall be the sole
appraiser for the purposes hereof.
If the two appraisers cannot agree
upon which of the two Estimates
most closely reflects the
Prevailing Market within 20 days
after their appointment, then,
within 10 days after the
expiration of such 20 day period,
the 2 appraisers shall select a
third appraiser meeting the
aforementioned criteria. Once the
third appraiser has been selected
as provided for above, then, as
soon thereafter as practicable but
in any case within 14 days, the
third appraiser shall make his
determination of which of the two
Estimates most closely reflects
the Prevailing Market rate and
such Estimate shall be binding on
both Landlord and Tenant as the
Base Rent rate for the Offering
Space, subject to the terms of
Subsection b.iii below. If the
third appraiser believes that
expert advice would materially
assist him, he may retain one or
more qualified persons, to provide
such expert advice. The parties
shall share equally in the costs
of the third appraiser and of any
experts retained by the
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third appraiser. Any fees of any
appraiser, counsel or experts
engaged directly by Landlord or
Tenant, however, shall be borne by
the party retaining such appraiser,
counsel or expert.
iii. Notwithstanding anything to the
contrary contained herein, the
parties hereby agree that Landlord
shall not be obligated to accept a
Prevailing Market rate for the
Offering Space that is less than
the then current Base Rent rate for
the initial Premises, per rentable
square foot per annum (the "Minimum
Prevailing Market Rate"),
regardless of any determination of
Prevailing Market rate made by the
appraisers, as described above.
iv. If the Prevailing Market rate has
not been determined by the
commencement date of the term for
the Offering Space, Tenant shall
pay Base Rent for the Offering
Space upon the terms and
conditions in effect for the
initial Premises until such time
as the Prevailing Market rate has
been determined. Upon such
determination, the Base Rent for
the Offering Space shall be
retroactively adjusted to the
commencement of the term for the
Offering Space. If such adjustment
results in an underpayment of Base
Rent by Tenant, Tenant shall pay
Landlord the amount of such
underpayment within 30 days after
the determination thereof. If such
adjustment results in an
overpayment of Base Rent by
Tenant, Landlord shall credit such
overpayment against the next
installment of Base Rent due under
the Lease and, to the extent
necessary, any subsequent
installments until the entire
amount of such overpayment has
been credited against Base Rent.
c. The Offering Space (including improvements
and personalty, if any) shall be accepted
by Tenant in its condition and as-built
configuration existing on the earlier of
the date Tenant takes possession of the
Offering Space or as of the date the term
for such Offering Space commences, unless
the ROFO Advice or RFR Advice, as
applicable, specifies any work to be
performed by Landlord in the Offering
Space, in which case Landlord shall perform
such work in the Offering Space.
3. With respect to Offering Space in the Building:
a. The initial annual Base Rent rate per
square foot for the Offering Space shall be
the Base Rent rate per square foot for the
Premises on the date the term for the
Offering Space commences. The Base Rent
rate for the Offering Space shall increase
at such times and in such amount as Base
Rent for the Premises, it being the intent
of Landlord and Tenant that the Base Rent
rate per rentable square foot for the
Offering Space shall always be the same as
the Base Rent rate per rentable square foot
for the initial Premises.
b. Tenant shall pay Additional Rent for the
Offering Space on the same terms and
conditions as described in Article IV of
this Lease, including, without limitation,
a Base Year of 2000.
c. The Offering Space (including improvements
and personalty, if any) shall be accepted
by Tenant in its condition and as-built
configuration existing on the earlier of
the date Tenant takes possession of the
Offering Space or as of the date the term
for such Offering Space commences.
d. Tenant shall be entitled to receive an
improvement allowance (the "Work
Allowance") per rentable square foot in the
Offering Space
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leased by Tenant in an amount determined by
multiplying $0.2188 by the number of full
calendar months remaining in the initial
Term on the commencement date for the
Offering Space. For example, if there are
48 full calendar months remaining in the
initial Term on the commencement date of
the Offering Space, Tenant shall be
entitled to receive a Work Allowance of
$10.51 per rentable square foot in the
Offering Space ($0.2188 x 48 months =
$10.51). Such Work Allowance shall be
applied toward the cost of initial
improvements to be performed in the
Offering Space (the "Improvements"),
including the cost of preparing plans,
drawings and specifications in connection
therewith. The Work Allowance shall be
disbursed, up to the cost of the
Improvements, within 30 days after delivery
to Landlord of all documentation described
in Section D of EXHIBIT D of this Lease
relating to the Improvements in the
Offering Space. Any portion of the Work
Allowance exceeding the cost of
Improvements in the Offering Space may be
used by Tenant for any lawful purpose and
shall be paid to Tenant within 30 days
following the later of (i) completion of
any Improvements in the Offering Space,
(ii) Landlord's receipt of evidence of
payment in full for all such Improvements,
and (iii) delivery to Landlord of all
documentation described in Section D of
EXHIBIT D of this Lease with respect to all
such Improvements. Landlord shall have no
obligation to disburse any portion of the
Work Allowance following the date which is
12 months after the date Tenant is
obligated to commence paying Base Rent for
such Offering Space. Notwithstanding
anything herein to the contrary, Landlord
shall not be obligated to disburse any
portion of the Work Allowance during the
continuance of an uncured Monetary or
material non-Monetary default under the
Lease, and Landlord's obligation to
disburse shall only resume when and if such
default is cured. If Landlord enters into
the general contract for the performance of
the Improvements, then Landlord shall be
entitled to deduct from the Work Allowance
a construction management fee for
Landlord's oversight of the Improvements in
an amount equal to 4.5% of the total cost
of the Improvements. If Tenant enters into
the general contract for the performance of
such work, then Landlord shall be entitled
to a fee as described in Section IX.C of
this Lease.
D. Offering Amendment.
1. If Tenant exercises its Right of First Offer or
Right of First Refusal, Landlord shall prepare an
amendment (the "Offering Amendment") adding the
applicable Offering Space to the Premises on the
terms set forth herein and reflecting the changes in
the Base Rent, Rentable Square Footage of the
Premises, Tenant's Pro Rata Share and other
appropriate terms.
2. A copy of the Offering Amendment shall be (i) sent
to Tenant within a reasonable time after receipt of
the Notice of Exercise executed by Tenant, and (ii)
executed by Tenant and returned to Landlord within
10 Business Days thereafter, but an otherwise valid
exercise of the Right of First Offer or Right of
First Refusal shall, at Landlord's option, be fully
effective whether or not the Offering Amendment is
executed.
E. Termination of Right of First Offer and Right of First
Refusal.
1. Tenant's Right of First Offer with respect to a
particular Offering Space shall terminate on the
earlier to occur of: (i) September 30, 2005; (ii)
Tenant's failure to exercise its Right of First
Offer within the 7 day period following Tenant's
receipt of the ROFO Advice, as provided in Paragraph
A above, with respect to the particular Offering
Space which was offered to Tenant, and (iii) the
date Landlord would have provided Tenant a ROFO
Advice with respect to the particular Offering Space
if Tenant had not been in violation of one or more
of the conditions set forth
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50
in subsections III.A.2(a)-(e) above. However, Tenant
shall continue to have a Right of First Refusal with
respect to any portion of such Offering Space which
a Prospect desires, as described in Section III.B
above, but subject to the termination of Tenant's
Right of First Refusal with respect to such Offering
Space, as described in Section III.E.2 below.
2. Tenant's Right of First Refusal with respect to a
particular Offering Space (or portion thereof)
desired by a Prospect shall terminate on the earlier
to occur of: (i) September 30, 2005; (ii) Tenant's
failure to exercise its Right of First Refusal
within the 7 day period following Tenant's receipt
of the RFR Advice, as provided in Paragraph B above,
with respect to the particular Offering Space(or
portion thereof) desired by the Prospect, and (iii)
the date Landlord would have provided Tenant a RFR
Advice with respect to the particular Offering
Space(or portion thereof) desired by the Prospect if
Tenant had not been in violation of one or more of
the conditions set forth in subsections
III.A.2(a)-(e) above. Notwithstanding the foregoing,
if (A) Tenant was entitled to exercise its Right of
First Refusal, but failed to provide Landlord with a
Notice of Exercise within the 7 day period provided
in paragraph B above, or if Tenant provided Landlord
with a Notice of Exercise but Landlord and Tenant
failed to agree upon the Prevailing Market rate for
the Offering Space in Building 223 as described in
Section III.C.2.a above, and (B) Landlord does not
enter into a lease for the Offering Space with the
Prospect which triggered the RFR Advice, or any
entity or individual affiliated with or related to
such Prospect (collectively, the "Trigger
Prospect"), then Tenant shall once again have a
Right of First Refusal with respect to such Offering
Space, and Landlord will issue a new RFR Advice to
Tenant for such Offering Space when Landlord has a
Prospect, other than the Trigger Prospect, for such
Offering Space in Building 223 as described in
Section III.B. above. In addition, if Landlord does
enter into a lease for the Offering Space, Tenant
shall have a Right of First Refusal on such Offering
Space (subject to the terms hereof) upon the
expiration of the lease with the Prospect that
leased the Offering Space.
F. Notwithstanding anything herein to the contrary, Tenant's
Right of First Offer and Right of First Refusal are subject
and subordinate to the expansion rights (whether such rights
are designated as a right of first offer, right of first
refusal, expansion option or otherwise) of Federated
Department Stores, Inc. existing on the date hereof.
G. Prevailing Market Rate. For purposes hereof, Prevailing
Market rate shall mean the annual rental rate per square foot
for space comparable to the particular Offering Space in
Building 223 and office buildings comparable to Building 223
in the central Perimeter submarket in Atlanta, Georgia under
leases and renewal and expansion amendments being entered
into at or about the time that Prevailing Market is being
determined, giving appropriate consideration to tenant
concessions, brokerage commissions, tenant improvement
allowances, and the method of allocating operating expenses
and taxes (which items, if any, shall be provided to Tenant
to the extent considered in determining Prevailing Market
rate). Notwithstanding the foregoing, space leased under any
of the following circumstances shall not be considered to be
comparable for purposes hereof: (i) the term is for less than
the term of the Offering Space, (ii) the space is encumbered
by the option rights of another tenant, or (iii) the space
has a lack of windows and/or an awkward or unusual shape or
configuration. The foregoing is not intended to be an
exclusive list of space that will not be considered to be
comparable.
H. Memorandum of Option.
1. Tenant, at its option, may execute and record a
memorandum of option, at Tenant's cost, to notice
any potential future owner of Building 223 that
Tenant holds a Right of First Offer and Right of
First Refusal affecting Building 223, as described
herein, provided such memorandum is approved by
Landlord. The memorandum shall specifically provide
that the Right of First Offer and Right of First
Refusal affecting Building 223
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shall automatically expire, and Tenant agrees to
execute and record, at its cost, a release of such
memorandum, upon the earlier of (i) expiration or
earlier termination of this Lease; (ii) Tenant's
exercise, waiver or failure to timely exercise its
Right of First Offer and Right of First Refusal with
respect to all of the Offering Space in Building
223, subject to Tenant's recurring Right of First
Refusal rights as described in Section III.E.2
above, or (iii) September 30, 2005.
2. If Landlord does not own Building 223 at the time
Tenant exercises its Right of First Offer or Right
of First Refusal with respect to a particular
Offering Space in Building 223, then Tenant and the
owner of Building 223 shall enter into a lease for
such Offering Space upon terms substantially similar
to those contained in this Lease, modified as
appropriate to reflect the terms and conditions
relating to such space as described herein.
IV. ADDITIONAL SPACE IN FUTURE BUILDING.
A. If Landlord constructs an office building on the currently
vacant site located north of the Building, as shown on the
site plan attached hereto as EXHIBIT A-4 (such future
building, if constructed, shall be referred to herein for
convenience purposes only as the "Future Building"), and such
construction was not performed as a "build to suit" for a
prospective purchaser or prospective tenant of the site,
then, prior to entering into an agreement to lease space in
the Future Building with another party other than Tenant,
Landlord shall provide Tenant with a written notice (the
"Initial Future Building Notice") that space will be
available in the Future Building and, within 30 days after
Tenant's receipt of such notice, Tenant shall have the right
to provide written notice to Landlord of its desire to lease
additional space in the Building (the "Additional Space
Notice"), which Additional Space Notice shall specify the
approximate additional square footage that Tenant desires to
lease (referred to herein as the "Additional Space").
Notwithstanding the foregoing, Landlord shall not be required
to provide Tenant with an Initial Future Building Notice nor
shall Landlord be required to respond to Tenant's Additional
Space Notice if:
1. Tenant is in default under the Lease beyond any
applicable notice and cure period at the time
Landlord would otherwise deliver the Initial Future
Building Notice; or
2. more than 25% of the Premises is sublet at the time
Landlord would otherwise deliver the Initial Future
Building Notice; or
3. the Lease has been assigned other than to a
Permitted Transferee (as defined in Section XII.E of
this Lease) or an Affiliate of Tenant (as defined in
Section I.S. of this Lease) prior to the date
Landlord would otherwise deliver the Initial Future
Building Notice; or
4. Tenant or an Affiliate of Tenant is not occupying
the Premises on the date Landlord would otherwise
deliver the Initial Future Building Notice; or
5. the Additional Space is not intended for the
exclusive use of Tenant during the Term.
B. Within a reasonable time after receiving Tenant's
Additional Space Notice (not to exceed 30 days), Landlord
shall advise Tenant in writing (the "Future Building Advice")
of the terms, determined in good faith by Landlord, under
which Landlord would be willing to lease the Additional Space
to Tenant. If Tenant does not desire to lease such Additional
Space upon the terms and conditions designated by Landlord,
Tenant shall provide Landlord with written notice of rejection
(the "Rejection Notice") and Landlord and Tenant shall work
together in good faith to agree upon mutually acceptable terms
and conditions for the Additional Space. Upon agreement
between Landlord and Tenant regarding the terms for the
Additional Space, Landlord and Tenant shall enter into an
amendment, upon such terms, to add such Additional
Space to the Premises. If Landlord and Tenant are unable to
agree upon the terms for such Additional
E-9
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Space within 30 days after Tenant's receipt of Landlord's
Future Building Advice, neither party shall have any further
obligation to the other under this Section IV and this Lease
shall continue in full force and effect with respect to the
then existing Premises.
V. RENEWAL OPTION.
A. Tenant shall have the right to extend the Term (the "Renewal
Option") for one additional period of 5 years commencing on
the day following the Termination Date of the initial Term
and ending on the 5th anniversary of the Termination Date
(the "Renewal Term"), if:
1. Landlord receives notice of exercise ("Initial
Renewal Notice") not less than 12 full calendar
months prior to the expiration of the initial Term
and not more than 15 full calendar months prior to
the expiration of the initial Term; and
2. Tenant is not in default under the Lease beyond any
applicable cure periods at the time that Tenant
delivers its Initial Renewal Notice or at the time
Tenant delivers its Binding Notice (as defined in
Section D below); and
3. No more than 25% of the Premises is sublet at the
time that Tenant delivers its Initial Renewal Notice
or at the time Tenant delivers its Binding Notice;
and
4. The Lease has not been assigned other than to a
Permitted Transferee (as defined in Section XII.E of
this Lease) or an Affiliate of Tenant (as defined in
Section I.S. of this Lease) prior to the date that
Tenant delivers its Initial Renewal Notice or prior
to the date Tenant delivers its Binding Notice.
B. The initial Base Rent rate per rentable square foot for the
Premises during the Renewal Term shall equal the Prevailing
Market (hereinafter defined) rate per rentable square foot
for the Premises.
C. Tenant shall pay Additional Rent (i.e. Tenant's Pro Rata
Share of Expense Excess and Tenant's Pro Rata Share of Tax
Excess) for the Premises during the Renewal Term in
accordance with Article IV of the Lease. Any change in the
Base Year, if any, will be properly reflected in the Renewal
Amendment (as defined below) and shall be considered when
determining the Prevailing Market rate.
D. Within 30 days after receipt of Tenant's Initial Renewal
Notice, Landlord shall advise Tenant of the applicable Base
Rent rate for the Premises for the Renewal Term. Tenant,
within 15 days after the date on which Landlord advises
Tenant of the applicable Base Rent rate for the Renewal Term,
shall either (i) give Landlord final binding written notice
("Binding Notice") of Tenant's exercise of its option, or
(ii) if Tenant disagrees with Landlord's determination,
provide Landlord with written notice of rejection (the
"Rejection Notice"). If Tenant fails to provide Landlord with
either a Binding Notice or Rejection Notice within such 15
day period, Tenant's Renewal Option shall be null and void
and of no further force and effect. If Tenant provides
Landlord with a Binding Notice, Landlord and Tenant shall
enter into the Renewal Amendment (as defined below) upon the
terms and conditions set forth herein. If Tenant provides
Landlord with a Rejection Notice, Landlord and Tenant shall
work together in good faith to agree upon the Prevailing
Market rate for the Premises during the Renewal Term. Upon
agreement, Tenant shall provide Landlord with Binding Notice
and Landlord and Tenant shall enter into the Renewal
Amendment in accordance with the terms and conditions hereof.
Notwithstanding the foregoing, if Landlord and Tenant are
unable to agree upon the Prevailing Market rate for the
Premises within 30 days after the date on which Tenant
provides Landlord with a Rejection Notice, Tenant's Renewal
Option shall be null and void and of no force and effect.
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E. If Tenant is entitled to and properly exercises its Renewal
Option, Landlord shall prepare an amendment (the "Renewal
Amendment") to reflect changes in the Base Rent, Base Year,
if any, Term, Termination Date and other appropriate terms.
The Renewal Amendment shall be sent to Tenant within a
reasonable time after receipt of the Binding Notice and
Tenant shall execute and return the Renewal Amendment to
Landlord within 15 days after Tenant's receipt of same, but
an otherwise valid exercise of the Renewal Option shall, at
Landlord's option, be fully effective whether or not the
Renewal Amendment is executed.
F. For purposes hereof, "Prevailing Market" shall mean the arms
length fair market annual rental rate per rentable square
foot under renewal leases and amendments entered into on or
about the date on which the Prevailing Market is being
determined hereunder for space comparable to the Premises in
the Building and office buildings comparable to the Building
in the central Perimeter submarket of Atlanta, Georgia. The
determination of Prevailing Market shall take into account
any material economic differences between the terms of this
Lease and any comparison lease, such as brokerage
commissions, tenant concessions, tenant improvement
allowances and other concessions and the manner, if any, in
which the landlord under any such lease is reimbursed for
operating expenses and taxes (which items, if any, shall be
provided to Tenant to the extent considered in determining
the Prevailing Market rate for the Renewal Term). The
determination of Prevailing Market shall also take into
consideration any reasonably anticipated changes in the
Prevailing Market rate from the time such Prevailing Market
rate is being determined and the time such Prevailing Market
rate will become effective under this Lease.
VI. ROOFTOP SPACE.
A. Provided Tenant selects a location on the roof of the
Building, reasonably acceptable to Landlord, for the
installation of the Dish/Antenna (defined below) (the "Roof
Space") in accordance with this Section VI within 12 months
after the Premises B Commencement Date, then Tenant shall
have the right to install and maintain the Dish/Antenna in
the Roof Space during the initial Term and any extension
thereof in accordance with this Section VI. The Roof Space
shall not exceed 40 square feet. However, if Tenant fails to
so designate the Roof Space, reasonably acceptable to
Landlord, within such 12 month period, then Tenant's rights
under this Section VI shall be subject to availability of
space on the roof of the Building for such purpose, as
reasonably determined by Landlord.
Subject to the foregoing, during the initial Term and any
extension thereof, Tenant shall have the right, in
consideration for payments of $300.00 per month (the
"Dish/Antenna Payments") commencing as of the date Tenant
installs any equipment in the Roof Space (the "Dish/Antenna
Payment Commencement Date") (upon each and every anniversary
of the Dish/Antenna Payment Commencement Date during the
initial Term and any renewal thereof, the Dish/Antenna
Payments shall increase by 5%, rounded to the nearest dollar,
from the rate in effect at the end of the immediately
preceding year), to lease space on the roof of the Building
for the purpose of installing (in accordance with Section
IX.C. of the Lease), operating and maintaining a dish/antenna
or other communication device approved by the Landlord (the
"Dish/Antenna"). The Dish/Antenna Payments shall constitute
Additional Rent under the terms of the Lease and Tenant shall
be required to make these payments, commencing as of the date
Tenant installs any equipment in the Roof Space, in strict
compliance with the terms of Section IV of the Lease.
Landlord reserves the right to relocate the Roof Space as
reasonably necessary during the Term, as same may be
extended, with at least 30 days notice. Landlord's
designation shall take into account Tenant's use of the
Dish/Antenna. Notwithstanding the foregoing, Tenant's right
to install the Dish/Antenna shall be subject to the approval
rights of Landlord and Landlord's architect and/or engineer
with respect to the plans and specifications of the
Dish/Antenna, the manner in which the Dish/Antenna is
attached to the roof of the Building and the manner in which
any cables are run to and from the Dish/Antenna. The precise
specifications and a general description of the Dish/Antenna
along with all documents Landlord reasonably requires to
review the installation of the
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54
Dish/Antenna (the "Plans and Specifications") shall be
submitted to Landlord for Landlord's written approval no
later than 20 days before Tenant commences to install the
Dish/Antenna. Tenant shall be solely responsible for
obtaining all necessary governmental and regulatory approvals
and for the cost of installing, operating, maintaining and
removing the Dish/Antenna. Tenant shall notify Landlord upon
completion of the installation of the Dish/Antenna. If
Landlord determines that the Dish/Antenna equipment does not
comply with the approved Plans and Specifications, that the
Building has been damaged during installation of the
Dish/Antenna or that the installation was defective, Landlord
shall notify Tenant of any noncompliance or detected problems
and Tenant immediately shall cure the defects. If the Tenant
fails to promptly cure the defects, Tenant shall pay to
Landlord upon demand the cost, as reasonably determined by
Landlord, of correcting any defects and repairing any damage
to the Building caused by such installation. If Landlord, in
its reasonable discretion, deems it reasonably necessary, and
if, at the time Landlord approves the plans and
specifications for the Dish/Antenna, or within 30 days after
installation of the Dish/Antenna, Landlord informs Tenant
that aesthetic screening will be necessary, then Tenant shall
provide and install, at Tenant's sole cost and expense,
appropriate aesthetic screening, reasonably satisfactory to
Landlord, for the Dish/Antenna (the "Aesthetic Screening").
B. Landlord agrees that Tenant, upon reasonable prior written
notice to Landlord, shall have access to the roof of the
Building and the Roof Space for the purpose of installing,
maintaining, repairing and removing the Dish/Antenna, the
appurtenances and the Aesthetic Screening, if any, all of
which shall be performed by Tenant or Tenant's authorized
representative or contractors, which shall be approved by
Landlord, at Tenant's sole cost and risk. It is agreed,
however, that only authorized engineers, employees or
properly authorized contractors of Tenant, FCC inspectors, or
persons under their direct supervision will be permitted to
have access to the roof of the Building and the Roof Space.
Tenant further agrees to exercise firm control over the
people requiring access to the roof of the Building and the
Roof Space in order to keep to a minimum the number of people
having access to the roof of the Building and the Roof Space
and the frequency of their visits. If Tenant requires access
to the Roof Space to service or otherwise deal with the
Dish/Antenna in an emergency, Tenant may obtain access by
contacting the security personnel for the Perimeter project.
C. It is further understood and agreed that the installation,
maintenance, operation and removal of the Dish/Antenna, the
appurtenances and the Aesthetic Screening, if any, is not
permitted to damage the Building or the roof thereof, or
interfere with the use of the Building and roof (other than
the Roof Space) by Landlord. Tenant agrees to be responsible
for any damage caused to the roof or any other part of the
Building which may be caused by Tenant or any of its agents
or representatives.
D. Tenant agrees to install only equipment of types and
frequencies which will not cause unreasonable interference to
Landlord or existing tenants of the Building. In the event
Tenant's equipment causes such interference, Tenant will
change the frequency on which it transmits and/or receives
and take any other steps necessary to eliminate the
interference. If said interference cannot be eliminated
within a reasonable period of time, in the reasonable
judgment of Landlord, then Tenant agrees to remove the
Dish/Antenna from the Roof Space. Landlord agrees to include
a provision similar to that contained in this Section D in
all future rooftop agreements Landlord may enter into with
respect to the Building.
E. Tenant shall, at its sole cost and expense, and at its sole
risk, install, operate and maintain the Dish/Antenna in a
good and workmanlike manner, and in compliance with all
Building, electric, communication, and safety codes,
ordinances, standards, regulations and requirements, now in
effect or hereafter promulgated, of the Federal Government,
including, without limitation, the Federal Communications
Commission (the "FCC"), the Federal Aviation Administration
("FAA") or any successor agency of either the FCC or FAA
having jurisdiction over radio or telecommunications, and of
the state, city and county in which the Building is located.
Under this Lease, the Landlord and its agents assume no
responsibility for the licensing, operation and/or
maintenance of
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Tenant's equipment. Tenant has the responsibility of carrying
out the terms of its FCC license (to the extent required to
be obtained) in all respects. The Dish/Antenna shall be
connected to Landlord's power supply in strict compliance
with all applicable Building, electrical, fire and safety
codes. Neither Landlord nor its agents shall be liable to
Tenant for any stoppages or shortages of electrical power
furnished to the Dish/Antenna or the Roof Space because of
any act, omission or requirement of the public utility
serving the Building, or the act or omission of any other
tenant, invitee or licensee or their respective agents,
employees or contractors, or for any other cause beyond the
reasonable control of Landlord, and subject to the following,
Tenant shall not be entitled to any rental abatement for any
such stoppage or shortage of electrical power. Any
interruption or termination of electrical service serving the
Roof Space due to the application of Laws, the failure of any
Building equipment, the performance of repairs, improvements
or alterations by Landlord, or the occurrence of any event or
cause beyond the reasonable control of Landlord is referred
to herein as a "Roof Top Service Failure". If Tenant is
unable to use the Dish/Antenna for a period in excess of 3
consecutive Business Days as a result of the Roof Top Service
Failure, then Tenant, as its sole remedy, shall be entitled
to receive an abatement of the Dish/Antenna Payments payable
hereunder during the period beginning on the 4th consecutive
Business Day of the Roof Top Service Failure and ending on
the day the electrical service has been restored to the Roof
Top Space. In no event, however, shall Landlord be liable to
Tenant for any loss or damage arising out of or in connection
with the Roof Top Service Failure. Neither Landlord nor its
agents shall have any responsibility or liability for the
conduct or safety of any of Tenant's representatives, repair,
maintenance and engineering personnel while in or on any part
of the Building or the Roof Space.
F. The Dish/Antenna, the appurtenances and the Aesthetic
Screening, if any, shall remain the personal property of
Tenant, and shall be removed by Tenant at its own expense at
the expiration or earlier termination of this Lease or
Tenant's right to possession hereunder. Tenant shall repair
any damage caused by such removal, including the patching of
any holes to match, as closely as possible, the color
surrounding the area where the equipment and appurtenances
were attached. Tenant agrees to maintain all of the Tenant's
equipment placed on or about the roof or in any other part of
the Building in proper operating condition and maintain same
in satisfactory condition as to appearance and safety in
Landlord's reasonable discretion. Such maintenance and
operation shall be performed in a manner to avoid any
interference with any other tenants or Landlord. Tenant
agrees that at all times during the Term, it will keep the
roof of the Building and the Roof Space free of all trash or
waste materials produced by Tenant or Tenant's agents,
employees or contractors.
G. In light of the specialized nature of the Dish/Antenna,
Tenant shall be permitted to utilize the services of its
choice for installation, operation, removal and repair of the
Dish/Antenna, the appurtenances and the Aesthetic Screening,
if any, subject to the reasonable approval of Landlord.
Notwithstanding the foregoing, Tenant must provide Landlord
with prior written notice of any such installation, removal
or repair and coordinate such work with Landlord in order to
avoid voiding or otherwise adversely affecting any warranties
granted to Landlord with respect to the roof. If necessary,
Tenant, at its sole cost and expense, shall retain any
contractor having a then existing warranty in effect on the
roof to perform such work (to the extent that it involves the
roof), or, at Tenant's option, to perform such work in
conjunction with Tenant's contractor. In the event the
Landlord contemplates roof repairs that could affect Tenant's
Dish/Antenna, or which may result in an interruption of the
Tenant's telecommunication service, Landlord shall formally
notify Tenant at least 30 days in advance (except in cases of
an emergency) prior to the commencement of such contemplated
work in order to allow Tenant to make other arrangements for
such service. If any such interruption of service lasts more
than 3 consecutive Business Days, then, beginning on the 4th
consecutive Business Day, Tenant's right to xxxxx the
Dish/Antenna Payments as described in Section E above shall
apply.
H. Tenant shall not allow any provider of telecommunication,
video, data or related services ("Communication Services") to
locate any equipment on the roof of the Building or in the
Roof Space for any purpose whatsoever (other than equipment
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leased to Tenant by any such provider specifically for use
exclusively in connection with Tenant's business in the
Premises), nor may Tenant use the Roof Space and/or
Dish/Antenna to provide Communication Services to an
unaffiliated tenant, occupant or licensee of another
building, or to facilitate the provision of Communication
Services on behalf of another Communication Services provider
to an unaffiliated tenant, occupant or licensee of the
Building or any other building.
I. Tenant acknowledges that Landlord may at some time establish
a standard license agreement (the "License Agreement") with
respect to the use of roof space by tenants of the Building.
Tenant, upon request of Landlord, shall enter into such
License Agreement with Landlord provided that such agreement
does not materially alter the rights of Tenant hereunder with
respect to the Roof Space and in no event shall Tenant be
obligated to pay more for its use of the Roof Space than as
described in this Section VI.
J. Tenant specifically acknowledges and agrees that the terms
and conditions of Article XIV of the Lease (Indemnity and
Waiver of Claims) shall apply with full force and effect to
the Roof Space and any other portions of the roof accessed or
utilized by Tenant, its representatives, agents, employees or
contractors.
K. If Tenant defaults under any of the terms and conditions of
this Section or the Lease, and Tenant fails to cure said
default within the time allowed by Article XIX of the Lease,
Landlord shall be permitted to exercise all remedies provided
under the terms of the Lease, including removing the
Dish/Antenna, the appurtenances and the Aesthetic Screening,
if any, and restoring the Building and the Roof Space to the
condition that existed prior to the installation of the
Dish/Antenna, the appurtenances and the Aesthetic Screening,
if any. If Landlord removes the Dish/Antenna, the
appurtenances and the Aesthetic Screening, if any, as a
result of an uncured default, Tenant shall be liable for all
costs and expenses Landlord incurs in removing the
Dish/Antenna, the appurtenances and the Aesthetic Screening,
if any, and repairing any damage to the Building, the roof of
the Building and the Roof Space caused by the installation,
operation or maintenance of the Dish/Antenna, the
appurtenances, and the Aesthetic Screening, if any.
VII. STORAGE SPACE.
A. During the initial Term and any renewal thereof, Landlord
agrees to lease to Tenant and Tenant accepts the space
containing approximately (a) 800 square feet on the ground
floor of the Building, (b) 400 square feet on the ground
floor of the Building, and 65 square feet on the ground floor
of the Building, as shown on EXHIBIT A-5 attached hereto
(collectively, the "Storage Space"). However, notwithstanding
the foregoing, the portion of the Storage Space described
above containing approximately 400 rentable square feet shall
not be leased to Tenant until such space becomes available,
which is scheduled to occur on or about February 1, 2000.
Further, the portion of the Storage Space containing 65
square feet described above is available for lease to Tenant
only if Tenant pays Landlord the reasonable cost to install a
demising wall and door to separately demise such space. In
addition to the Storage Space described above, Tenant shall
have an option to lease an additional approximately 800
square feet of storage space, located on the ground floor of
the Building as shown on EXHIBIT A-6 attached hereto (the
"Option Storage Space") when such Option Storage Space
becomes available. Tenant shall exercise the foregoing option
as follows: When Landlord informs Tenant that the Option
Storage Space is available for lease by Tenant (but prior to
leasing the Option Storage Space to any party other than the
current occupant of such space or its successors or assigns),
Tenant may elect to lease such space, upon the terms and
conditions contained in this Section VII (in which event, the
Option Storage Space shall be included within the definition
of Storage Space hereunder), by providing written notice to
Landlord within 7 days after Tenant's receipt of the notice
from Landlord. Failure to provide such written notice to
Landlord within the 7 day period shall be deemed a waiver of
Tenant's option rights with respect to the Option Storage
Space. The Storage Space shall be used by Tenant for the
storage of equipment, inventory or other non-perishable items
normally used in Tenant's business, and for no other purpose
whatsoever. Tenant
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agrees to keep the Storage Space in a neat and orderly
fashion and to keep all stored items in cartons, file
cabinets or other suitable containers. All items stored in
the Storage Space shall be elevated at least 6 inches above
the floor on wooden pallets, and shall be at least 18 inches
below the bottom of all sprinklers located in the ceiling of
the Storage Space, if any. Tenant shall not store anything in
the Storage Space which is unsafe or which otherwise may
create a hazardous condition, or which may increase
Landlord's insurance rates, or cause a cancellation or
modification of Landlord's insurance coverage. Without
limitation, Tenant shall not store any flammable, combustible
or explosive fluid, chemical or substance nor any perishable
food or beverage products, except with Landlord's prior
written approval. Landlord reserves the right to adopt and
enforce reasonable rules and regulations governing the use of
the Storage Space from time to time. Upon expiration or
earlier termination of this Lease or Tenant's rights under
this Section, Tenant shall completely vacate and surrender
the Storage Space to Landlord in accordance with the terms of
this Lease. Without limitation, Tenant shall leave the
Storage Space in the condition in which it was delivered to
Tenant, reasonable wear and tear excepted, broom-clean and
empty of all personalty and other items placed therein by or
on behalf of Tenant.
B. Tenant shall pay rent for the Storage Space ("Storage Rent")
in the sum of $12.00 per square foot, per month, payable in
advance on or before the first day of each month of the Term.
Any partial month shall be appropriately prorated. Upon each
and every anniversary of the Commencement Date during the
initial Term and any renewal thereof, the Storage Rent shall
increase by 2%, rounded to the nearest dollar, from the rate
in effect at the end of the immediately preceding year. All
Storage Rent is deemed Rent under this Lease. The Storage
Rent shall be payable in the same manner that Base Rent is
payable under the Lease.
C. All terms and provisions of the Lease shall be applicable to
this Agreement, including, without limitation, Article XIV
(Indemnity and Waiver of Claims) Article XV (Tenant's
Insurance), and Article XXI (Limitation of Liability) except
that Landlord need not supply air-cooling, heat, water,
janitorial service, cleaning, passenger elevator service,
window washing or electricity (other than electricity for
standard storage space overhead lighting) to the Storage
Space and Tenant shall not be entitled to any work
allowances, rent credits, expansion rights or renewal rights
with respect to the Storage Space unless such concessions or
rights are specifically provided for herein with respect to
the Storage Space. Other than in connection with, and to the
extent of, Landlord's gross negligence and willful
misconduct, Landlord shall not be liable for any theft or
damage to any items or materials stored in the Storage Space,
it being understood that Tenant is using the Storage Space at
its own risk. Any default by Tenant under the Lease remaining
uncured for a period extending beyond the expiration of any
applicable cure period shall be a default under this Section
VII; any default by Tenant under this Section VII shall be a
default under this Lease; and the provisions of the Lease
with respect to Tenant defaults shall apply to any default by
Tenant hereunder. The Storage Space shall not be included in
the determination of Tenant's Pro Rata Share under the Lease
nor shall Tenant be required to pay Expenses or Taxes in
connection with the Storage Space.
D. Tenant agrees to accept the Storage Space in its condition
and "as-built" configuration existing on the earlier of the
date Tenant takes possession of the Storage Space or the
Commencement Date.
E. At any time and from time to time, Landlord shall have the
right to relocate the Storage Space to a new location which
shall be no smaller than the square footage of the Storage
Space. Landlord shall pay the direct, out-of-pocket,
reasonable expenses of such relocation.
F. If Tenant assigns the Lease or sublets all or any part of the
Premises other than to a Permitted Transferee (as described
in Article XII of this Lease), Landlord, at its option, may
cancel Tenant's rights under this Section VII effective as of
30 days after notice to Tenant. Additionally, notwithstanding
anything set forth in Article XII of the Lease to the
contrary, Tenant shall not, without the prior written consent
of Landlord, which consent may be withheld in Landlord's sole
discretion, assign, sublease, transfer or encumber the
Storage Space or grant any license,
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concession or other right of occupancy or permit the use of
the Storage Space by any party other than Tenant or a
Permitted Transferee.
VIII. SIGNAGE.
A. During the initial Term and any extension thereof, and
provided that Tenant is leasing and occupying at least 50% of
the rentable square feet in the Building, Tenant, at Tenant's
sole cost (subject to the Allowance, as described in EXHIBIT
D), shall have the following signage rights for its corporate
name:
1. Subject to governmental approval, Tenant may install
an unlighted sign on the exterior Building facade
(the "Facade Sign") at the top of the Building, at a
location to be determined by Landlord, provided
Tenant installs the Facade Sign within 6 months
after the Commencement Date. Tenant shall be
responsible for all maintenance and repair costs of
the Facade Sign. The design, size and color of the
Facade Sign and the manner in which it is attached
to the Building shall be subject to the approval of
Landlord and all applicable governmental
authorities. Upon termination of this Lease or
Tenant's right to possession of the Premises, Tenant
shall remove the Facade Sign, at Tenant's cost, and
restore the facade of the Building to the condition
it was in prior to installation of the Facade Sign,
ordinary wear and tear excepted. During the initial
Term and any extension thereof, but subject to the
currently existing rights of any tenant under any
currently existing leases, and provided Tenant is
leasing and occupying at least 50% of the rentable
square footage in the Building, Landlord agrees
that, unless otherwise required by law, it will not
permit any other entity to install its name on the
exterior Building facade. However, it is agreed that
the foregoing shall not limit Landlord's right to
install the names of other entities or individuals
on a plaque or similar signage on the Building
[i.e., plaques or similar signage which can be read
only within a few feet of the signage plaque].
2. Subject to governmental approval, and provided
Tenant installs such signage on the Monument Signs
within 6 months after the Commencement Date, Tenant
may install its name on one or both of (a) the
Building monument sign located in front of the
Building and (b) the building monument sign located
at the roadway entrance on Perimeter Center Parkway
(collectively, the "Monument Signs"). The design,
size and color of Tenant's name on the Monument
Signs shall be subject to Landlord's reasonable
approval, and Landlord shall have the right to
require that all names on the Monument Signs be of
the same size and style. Tenant's right to place its
name on the Monument Signs, and the location of
Tenant's name on the Monument Signs, shall be
subject to the existing rights of existing tenants
in the Building. Federated Department Stores, the
other tenant of the Building, does not have the
exclusive rights to include its name or sign on the
Monument Signs. Although the Monument Signs will be
maintained by Landlord, Tenant shall pay its
proportionate share of the cost of any maintenance
and repair associated with the Monument Signs. Upon
termination of this Lease or Tenant's right to
possession of the Premises, Tenant shall remove its
name and logo from the Monument Signs, at Tenant's
cost, and restore the Monument Signs to the
condition they were in prior to installation of
Tenant's name and logo thereon, ordinary wear and
tear excepted. During the initial Term and any
extension thereof, provided Tenant is leasing and
occupying at least 50% of the rentable square
footage in the Building, Landlord agrees that,
unless otherwise required by law, it will not permit
more than one other tenant's name to be included on
the Monument Signs (i.e. other than Tenant and
Landlord) and such other tenant's name shall be
included only if such other tenant occupies at least
one (1) full floor (whether by size or actual
location) in the Building. However, it is agreed
that nothing contained herein shall restrict
Landlord's ability to comply with any signage
requirements or obligations contained in any
currently existing leases affecting the Building.
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Landlord has ordered new Monument Signs to replace the
existing Monument Signs. Landlord is willing to work with
Tenant to coordinate the installation of Tenant's name on the
Monument Signs so that Tenant may avoid the cost of
installing its name on the old Monument Signs prior to
replacement of same with the new Monument Signs.
B. If Tenant leases or occupies less than 50% of the rentable
square feet in the Building, Landlord shall have the right
(i) to require Tenant to remove the Facade Sign, at Tenant's
cost (or if Tenant fails to remove such signage within 30
days after written request from Landlord, then Landlord may
remove such signage and Tenant shall pay Landlord all costs
related thereto, as Additional Rent, within 30 days after
demand therefor), and (ii) to remove Tenant's name from the
Monument Signs, at Tenant's cost, payable as Additional Rent,
within 30 days after demand therefor.
C. The rights provided in this Section VIII shall be
non-transferable unless otherwise agreed by Landlord in
writing.
IX. ENVIRONMENTAL MATTERS
A. Landlord represents, to the best of its knowledge, that the
Premises are free of Hazardous Materials (as defined below)
in amounts and conditions which pose danger to human beings
or in violation of applicable environmental laws.
B. Tenant shall not use, generate, manufacture, store or dispose
of, on or about the Premises, or transport to or from the
Premises, any flammable explosives, radioactive materials,
hazardous wastes, toxic substances, or any related materials
or substances, including, without limitation, any substance
defined as or included in the definition of "hazardous
substances" under any applicable federal, state or local law,
regulation or ordinance (collectively, "Hazardous
Materials").
C. Notwithstanding the provisions of this Section IX, Tenant and
Landlord shall have the right to use, generate and store on
the Premises and the Building, and transport to and from the
Premises and the Building, those Hazardous Materials which
are generally used in the ordinary course in first class
office buildings; provided, however, that Tenant's and
Landlord's use, generation, storage and transport thereof is
in compliance with all applicable federal, state and local
laws, regulations and ordinances.
D. Promptly, upon either Landlord's or Tenant's obtaining actual
knowledge thereof, such party shall immediately notify the
other party in writing of (i) any and all enforcement,
cleanup, removal or other governmental or regulatory actions
instituted, completed or threatened with respect to Hazardous
Materials pursuant to any applicable federal, state or local
law, ordinance or regulation, and (ii) all claims made or
threatened by any third party against Landlord, Tenant, or
the Premises relating to any damage, loss or injury, whether
to person or property, resulting from the Hazardous
Materials.
X. ASBESTOS DISCLOSURE. Tenant acknowledges that it has previously been
informed by Landlord that asbestos containing materials are located in
the Building and, prior to performing any improvements or alterations
in the Premises or any other portion of the Building, Tenant must
comply with Landlord's operations and maintenance plan and manual and
the procedures contained therein regarding the containment or removal
of any asbestos containing materials from the Building. A copy of the
"Report of Survey, Sampling and Evaluation for Asbestos-Containing
Materials" for the Building dated February, 1999, prepared by Law
Engineering and Environmental Services, Inc., as Law Project No.
50140-8-2166-01-606 (the "Asbestos Report") has previously been
delivered to Tenant. The Asbestos Report contains a summary of the
location of the asbestos containing materials in the Building.
XI. GENERATOR.
A. During the initial Term and any renewal thereof, Tenant shall
have the right to install a supplemental generator (the
"Generator") to provide emergency
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additional electrical capacity to the Premises. The Generator
shall be placed at a location at the Property designated by
Landlord (the Generator Location"). However, Tenant's right to
install the Generator shall be subject to Landlord's
reasonable approval of the manner in which the Generator is
installed, the manner in which any cables are run to and from
the Generator to the Premises and the measures that will be
taken to eliminate any vibrations or sound disturbances from
the operation of the Generator. Landlord shall have the right
to require (at the time Landlord approves the plans for the
Generator and installation thereof or within 30 days after
installation of the Generator) an acceptable enclosure (e.g.
wood fencing and landscaping) to hide or disguise the
existence of the Generator and to minimize any adverse effect
that the installation of the Generator may have on the
appearance of the Building and Property. Tenant shall be
solely responsible for obtaining all necessary governmental
and regulatory approvals and for the cost of installing,
operating, maintaining and removing the Generator. Tenant
shall also be responsible for the cost of all utilities
consumed in the operation of the Generator. Notwithstanding
anything herein to the contrary, if Tenant does not install
the Generator on or before 6 months after the Commencement
Date or if Tenant, after installation, removes the Generator
from the Generator Location for reasons other than the repair
and replacement of the Generator, Tenant's right to install
the Generator and to use the Generator Location shall be null
and void.
B. Tenant shall be responsible for assuring that the
installation, maintenance, operation and removal of the
Generator will in no way damage the Building or Property.
Tenant agrees to be responsible for any damage caused to the
Building or Property in connection with the installation,
maintenance, operation or removal of the Generator and, in
accordance with the terms of Article XIV of the Lease, to
indemnify, defend and hold Landlord, its trustees, members,
principals, beneficiaries, partners, officers, directors,
employees, agents and mortgagees (collectively, the "Landlord
Related Parties") harmless from all liabilities, obligations,
damages, penalties, claims, costs, charges and expenses,
including, without limitation, reasonable architects' and
attorneys' fees (if and to the extent permitted by law), which
may be imposed upon, incurred by, or asserted against Landlord
or any of the Landlord Related Parties in connection with the
installation, maintenance, operation or removal of the
Generator and its appurtenances, including, without
limitation, any environmental and hazardous materials claims.
C. Tenant shall be responsible for the installation, operation,
cleanliness, maintenance and removal of the Generator and
appurtenances, all of which shall remain the personal property
of Tenant, and shall be removed by Tenant at its own expense
at the termination of the Lease. Tenant shall repair any
damage caused by such removal, including the patching of any
holes to match, as closely as possible, the color surrounding
the area where the Generator and appurtenance were attached.
Such maintenance and operation shall be performed in a manner
to avoid any unreasonable interference with any other tenants
or Landlord. Tenant agrees to maintain the Generator,
including without limitation, any enclosure installed around
the Generator, in good condition and repair. Tenant shall be
responsible for performing any maintenance and improvements to
any enclosure surrounding the Generator so as to keep such
enclosure in good condition.
D. Tenant, upon prior notice to Landlord and subject to the
reasonable rules and regulations enacted by Landlord, shall
have unlimited access to the Generator and its surrounding
area for the purpose of installing, operating, repairing,
maintaining and removing the Generator.
E. Tenant shall only test the Generator before or after Normal
Business Hours and upon prior notice to Landlord.
XII. SUPPLEMENTAL HVAC UNITS.
A. Tenant, as part of the Initial Alterations, shall install one
or more (as required pursuant to Section IX.D. or other
provisions of this Lease) air-cooled stand alone package
heating, ventilation and air conditioning system in the
Premises (the
61
"Package Unit(s)"). Alternatively, or in addition to the
foregoing, Tenant may utilize any existing supplemental HVAC
units currently located in the Premises, although Landlord
makes no representation or warranty as to the condition of
any such existing units and Tenant acknowledges that such
units are being made available in their "as is" condition and
Tenant will be using any such existing units solely at its
own risk. The Package Unit(s) installed by Tenant and any
existing supplemental HVAC units utilized by Tenant
collectively are called the "Supplemental HVAC Units". The
type and design of any Package Units to be installed by or on
behalf of Tenant shall be subject to the prior approval of
Landlord. Also, the location of the Supplemental HVAC Units
within the Premises, the manner in which the Supplemental
HVAC Units will be vented, and the manner in which the
Supplemental HVAC Units will access outside air shall also be
subject to Landlord's prior approval.
B. Tenant shall be responsible for the cost of all electricity
consumed in connection with the operation of such
Supplemental HVAC Units and for the cost of installing a
submeter to measure such electrical consumption. Tenant, at
its sole cost and expense, shall procure and maintain in full
force and effect, a contract (the "Service Contract") for the
service, maintenance, repair and replacement of the
Supplemental HVAC Units with a HVAC service and maintenance
contracting firm reasonably acceptable to Landlord. Tenant
shall follow all reasonable recommendations of said
contractor for the maintenance, repair and replacement of the
Supplemental HVAC Units. The Service Contract shall provide
that the contractor shall perform inspections of the
Supplemental HVAC Units at intervals of not less than 3
months and that having made such inspections, said contractor
shall furnish a complete report of any defective conditions
found to be existing with respect to the Supplemental HVAC
Units, together with any recommendations for maintenance,
repair and/or replacement thereof. Said report shall be
furnished to Tenant with a copy to Landlord. Upon the
expiration or earlier termination of this Lease, Tenant shall
have the right to remove the Supplemental HVAC Units
purchased by Tenant, and, to the extent required by Landlord
pursuant to Article VIII of this Lease, Tenant shall be
obligated to remove all such Supplemental HVAC Units
purchased by Tenant from the Premises in accordance with
Article VIII of this Lease.
XIII. SHORT TERM RENEWAL OPTION.
A. Tenant, provided it is not in default beyond any applicable
notice and cure periods, and has not sublet the Premises or
assigned this Lease other than to a Permitted Transferee,
shall have the one time right to extend the Term (the "Short
Term Renewal Option"), as such Term may have been previously
extended, for a period of up to 2 months. Such Short Term
Renewal Option shall be exercised by providing written notice
(the "Short Term Renewal Notice") to Landlord on or before
120 days prior to the Termination Date, as same may have been
previously extended. Tenant's Short Term Renewal Notice must
specify the number of days that Tenant desires to extend the
Term (the "Desired Short Term Extension Period"), but shall
be no more than the permitted maximum extension period
described above in this Section XIII.A.
B. If Tenant properly exercises its Short Term Renewal Option,
then the Term shall be deemed extended commencing on the day
following the Termination Date, as same previously may have
been extended, and ending on the last day of the Desired
Short Term Extension Period (the "Short Term Renewal Term").
The Base Rent rate per rentable square foot for the Premises
during the Short Term Renewal Term shall equal 102% of the
Base Rent rate per rentable square foot for the Premises in
effect during the month of the Term immediately preceding the
commencement of the Short Term Renewal Term.
C. Tenant shall pay Additional Rent for the Premises during the
Short Term Renewal Term in accordance with the terms of this
Lease.
D. If Tenant is entitled to and properly exercises its Short
Term Renewal Option, Landlord, at its option, shall prepare
an amendment (the "Short Term Renewal Amendment") to reflect
changes in the Base Rent, Term, Termination Date and other
appropriate terms. Tenant shall execute and return such Short
Term
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Renewal Amendment to Landlord within 15 days after Tenant's
receipt thereof from Landlord, but an otherwise valid
exercise of the Short Term Renewal Option shall be fully
effective whether or not the Short Term Renewal Amendment is
executed.
XIV. MISCELLANEOUS.
A. Health Club Facility. Subject to governmental approval, and
provided no zoning changes are required to accommodate same,
subject to the following regarding zoning matters, Tenant, at
its cost, shall be permitted to install a health club
facility in the Premises for the sole and exclusive use of
Tenant, its permitted successors and assigns, and the
employees of Tenant, and its permitted successors and
assigns. All plans and specifications for the health club
facility shall be subject to Landlord's approval. Tenant
shall be responsible for any additional charges or costs
incurred by Landlord or the Building charges as a result of
the health club facility, including, without limitation, any
increase in energy costs, Taxes or insurance. All zoning
variances or special use permits required to enable Tenant to
install a health club facility as described herein shall be
subject to Landlord's reasonable approval. Landlord agrees to
reasonably cooperate with Tenant, at no cost to Landlord, in
connection with any zoning variances or special use permits
which Tenant may be required to obtain in order to install
the health club facility. However, in no event shall Landlord
be required to consent to any zoning changes, variances,
special use permits or any other zoning modifications which,
in Landlord's judgment, may adversely impact the current
zoning classification of the Building or Landlord's ability
to operate the Building as an office building.
B. Food Service. Currently, another tenant in Building 223
(defined in Section III of this EXHIBIT E) has contracted
separately with a food service provider to operate a food
service facility in Building 223. Currently, the food service
facility is open to the public. If the quality of the food
service in such facility decreases such that it is less than
what Tenant deems satisfactory, Landlord agrees, upon request
of Tenant, to discuss with the tenant that contracted with
the food service provider possible ways (without cost or
liability to Landlord or such other tenant) in which the
quality of the food service available to the public may be
increased or otherwise improved. Landlord shall keep Tenant
informed of discussions.
XV. SELF HELP AND SET OFF RIGHTS.
A. Required Action. Except in the case of fire or other casualty
(in which case Article XVII of the Lease will control) and in
addition to, and not in lieu or reduction of, Tenant's rights
and remedies hereunder, if (i) Tenant provides written notice
(the "Repair Notice") to Landlord of a water leak in the
Premises caused by a problem with the roof of the Building or
leakage around the windows in the Premises, (ii) such leakage
is to such a degree that Tenant is unable to use (and
actually is not using) a substantial portion of its Premises
(which in the case of a roof leakage, shall mean that Tenant
is unable to use, at a minimum, a substantial portion of the
floor of the Premises closest to the roof), or such leakage
is substantially disrupting the use of a substantial portion
of the Premises or threatening damage to Tenant's computer or
data facilities in the Premises, (iii) the leakage is a
problem falling within Landlord's repair obligations under
this Lease, as more specifically described in Section IX.B.
of this Lease) (a "Required Action"), and (iv) Landlord fails
to cure the leakage problem within 60 days after Landlord's
receipt of the Repair Notice from Tenant (or within such
additional time thereafter as may be required to cure such
leak if such leak cannot be cured within such 60 day period
so long as Landlord commences such cure within the 60 day
period and diligently pursues all necessary steps required
for such cure and periodically provides Tenant with evidence
that Landlord is diligently pursuing such cure), then Tenant
may (but shall not be obligated to) proceed to take the
Required Action, pursuant to the terms of this Lease, and, at
least 10 days prior to commencing any such Required Action,
shall deliver a second written notice to Landlord specifying
that Tenant is about to take the Required Action (the "Second
Notice").
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B. Restrictions on Action.
1. Any such Required Action taken by Tenant in
accordance with this Section shall be contracted for
only through Landlord's contractors that provided
any then outstanding warranties with respect to the
roof or windows in the Building, as applicable, or,
if none, then through contractors that will not
adversely impact any warranties affecting the
Building. Any work performed by Tenant or its
contractors in connection with the Required Action
shall be performed in a manner so as to impact as
little as possible any warranties affecting the
Building. If any such work by Tenant or its
contractors will void any warranties affecting the
Building, then Tenant shall not be permitted to take
the Required Action, unless approved by Landlord in
writing, which approval shall not be unreasonably
withheld, conditioned or delayed.
2. To the extent any Required Action by Tenant
adversely affects the warranties affecting any
portion of the Building, including any warranties
affecting the roof or windows in the Building, then
Tenant shall be directly responsible for any
increased costs Landlord may actually incur in
connection therewith.
3. If any Required Action will affect the Common Areas
of the Building, any structure of the Building
(other than the roof or the windows, and then only
to the extent absolutely necessary for Tenant to
carry out the Required Action in order to cure the
leak in the roof or in the windows), the main
Building systems that service other occupants of the
Building (specifically including fire and life
safety systems) as opposed to merely the
distribution of such main Building systems within
Tenant's Premises, the structural integrity of the
Building, the exterior appearance of the Building,
or any other tenant's leased space, Tenant shall not
be permitted to take the Required Action.
C. Not Applicable to Original Landlord. The rights of Tenant
described in this Section XV shall not be available so long
as the Landlord originally named hereunder, any affiliates of
such Landlord, or any successor to such Landlord by merger or
purchase of Landlord (as opposed to purchase of the assets of
Landlord) is acting as the Landlord hereunder. As used
herein, "an affiliate of Landlord" shall mean any entity
controlling, controlled by or under common control with
Landlord.
D. Reimbursement for Action. If any Required Action is taken by
Tenant pursuant to the terms of this Section XV, then
Landlord shall reimburse Tenant for its reasonable and
documented third party out of pocket costs and expenses
incurred in taking the Required Action, up to a maximum sum
equal to two month's Base Rental for the Premises at the then
current rate under this Lease, within 30 days after receipt
by Landlord of an invoice from Tenant which sets forth a
reasonably particularized breakdown of its costs and expenses
in connection with taking the Required Action on behalf of
Landlord (the "Repair Invoice"). If Landlord does not
reimburse Tenant for a properly presented Repair Invoice
within 30 days of receipt, then Tenant may deduct from the
next Rent payable by Tenant under this Lease, the amount set
forth in the Repair Invoice, up to the maximum amount
permitted under this Section XV.D (the "Offset Right").
Tenant shall provide such backup materials and access to
books and records as Landlord shall reasonably require to
verify Tenant's actual costs of taking the Required Action.
Notwithstanding the foregoing provisions of this paragraph to
the contrary, if Landlord delivers to Tenant within 30 days
after receipt of the Repair Invoice, a written objection to
the payment of such invoice, setting forth with reasonable
particularity Landlord's reason for its claim that the
Required Action did not have to be taken by Landlord pursuant
to the terms of this Lease or that Tenant breached the terms
of this Section XV or that the charges are excessive (in
which case Landlord shall pay the amount it contends would
not have been excessive), then Tenant shall not be entitled
to deduct such amount from Rent, but the dispute may be
submitted to a court of competent jurisdiction in accordance
with the terms of this Lease for resolution and, if resolved
in Tenant's favor, Tenant shall be entitled to deduct such
amount, plus
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64
any reasonable court costs and expenses and attorneys' fees
allowable under this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this exhibit as
of the day and year first above written.
LANDLORD:
EOP-PERIMETER CENTER, L.L.C., A DELAWARE LIMITED
LIABILITY COMPANY
By: EOP Operating Limited Partnership, a Delaware
limited partnership, its sole member
By: Equity Office Properties Trust, a Maryland
real estate investment trust, its managing
general partner
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
TENANT:
NOVA GEORGIA SERVICES, L.P., A GEORGIA LIMITED
PARTNERSHIP
By:
-----------------------------------------------
Name:
---------------------------------------------
Title:
--------------------------------------------
X-00
00
XXXXXXX X
XXXX SPECIFICATIONS
PERIMETER 219 HVAC DESIGN CRITERIA:
The HVAC equipment maintains conditions based upon Georgia Energy Code and the
local conditions specified in the 1981 edition of ASHRAE Handbook of
Fundamentals:
SUMMER: 78(degree)F at 50% relative humidity interior, based upon
outside conditions of 92(Degree)F dry bulb and 74(Degree)F wet
bulb.
WINTER: 68(degree)F interior based upon outside conditions of 17(Degree)F
dry bulb.
This criteria is based upon the building standard usage of electricity and
lighting and is based upon a maximum of 150 square feet occupied per person.
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66
EXHIBIT G
CLEANING SPECIFICATIONS
I. NIGHT CLEANING SPECIFICATIONS.
A. TENANT SPACES.
1. Daily - five nights each week.
a. Waste Baskets - empty and wipe clean. Only
trash placed in waste baskets or clearly
marked "Trash" removed.
b. Desk and Table Tops - remove dust with
treated cloth or lambswool duster. Dry wipe
glass tops. Do not use furniture polish.
Desk must be reasonably clear or all
personal articles to be dusted. No personal
article will be moved to dust around.
c. Non-Carpeted Floors - sweep and damp mop.
d. Carpeted Floors - vacuum/spot clean.
e. Wash Basins - clean and sanitize.
f. Drinking Fountains - clean, polish and
sanitize. Scrub spout with wire brush.
g. Breakrooms - Damp wipe counter tops,
cabinets, fronts of appliances and sink.
Spot clean walls. Damp mop floors. Reset
furniture.
h. Conference Room Tables - Dry wipe for
fingerprints and dust.
2. Semi-Weekly - two nights each week.
a. Files and Shelves - dust.
b. Interior Building Surfaces - dust within
reach of attendant with lambswool extension
duster.
c. Interior Glass Panels and Door Frames -
spot clean, wash overall as often as
needed.
d. Interior Vertical Walls and Woodwork - spot
clean.
e. Vinyl or Plastic Chair Pads - dust.
3. Weekly - one night each week.
a. Pictures/Wall Hangings - dust.
b. Louvered Doors/Interior Shutters - dust.
c. Office Furniture - dust within reach.
d. Carpeted Floors - detail vacuum (edge).
e. Vinyl Tile Floors - spray buff.
f. Cove Base - damp wipe.
g. Light Switches - remove fingerprints.
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h. Dust chairs including chair legs. Re-set
chairs under tables.
i. Deskside and intermediate recycling
containers - empty.
4. Monthly - one night each month.
a. Blinds - remove dust with treated cloth.
b. Vinyl Tile Floors - strip and re-wax.
c. Ceiling and Corners - dust within reach of
telescopic duster.
5. Quarterly - one night every three months.
a. Drapes - dust within reach.
b. Ceiling Vents, Vertical Surface, High
Moldings, Cornice and Overhead Pipes vacuum
and remove dust within reach.
c. Upholstered Furniture - remove dust and
debris.
6. Annual - one night every twelve months.
a. Light Fixture (fluorescent, flush type) -
dust.
b. Recessed Light - dust and wipe lens down.
c. Waste Receptacles - metal and plastic
receptacles washed and sanitized; wood
receptacles sprayed with disinfectant and
wiped clean.
B. CORRIDORS.
1. Daily - five nights a week.
a. Carpets - vacuum.
b. Non-carpeted Floors - sweep and damp mop.
Remove spills.
c. Janitor Sinks - clean and sanitize.
d. Doors - clean. Wipe down push plates, pull
plates and kick plates.
e. Damp Mopping - in areas of construction or
elsewhere, if needed.
x. Xxx Urn/Trash Receptacles - remove waste.
Wipe interior and exterior surfaces.
g. Drinking Fountains - clean and sanitize.
h. Building Surfaces - spot clean.
2. Semi-Weekly - two nights a week.
a. Vertical Surfaces - dusted within reach of
telescopic duster.
b. Elevator and Standard Doors - wipe down.
3. Weekly - one night each week.
a. Cove Base - damp wipe down.
b. Carpeted Floors - detail vacuum (edge).
c. Vinyl Tile Flooring - spray buff.
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68
4. Monthly - one night each month.
a. Janitor Closets - sweep and mop.
b. Mechanical Rooms - sweep and mop.
c. Waste Receptacles - wash and sanitize.
d. Vinyl Tile Flooring - strip and re-wax.
5. Quarterly - one night every three months.
a. Fabric Walls - spot clean with dry powder
or extract.
C. RESTROOMS.
1. Daily - five nights each week.
a. Trash - remove waste and clean receptacle.
b. Tile Floors - sweep and mop with germicidal
disinfectant.
c. Carpeted Floors - vacuum area including
vestibule.
d. Wash Basin/Urinals/Commodes - clean,
sanitize and descale.
e. Shelving/Dispensers/Chrome
Dispensers/Chrome Fixtures - damp wipe.
f. Sanitary Napkin Receptacles - empty, clean
and disinfect. Replace liner.
g. Partitions - dust tops and sides. Damp wipe
clean.
h. Towel/Tissue Receptacles - replenish with
materials specified by property management.
Replace towels or tissues when receptacle
is 3/4 empty. Rolls should feed over the
top. No extra rolls left in stall.
i. Fitting/Supply Pipes/Brightwork - clean and
polish.
x. Xxxxx - spot clean with germicidal
disinfectant.
k. Mirrors - clean.
l. All Surfaces - remove dust.
m. Doors - clean and wipe down push plates,
pull plates and kick plates.
2. Weekly - one night each week.
a. Floor Drains - flush with water and
disinfectant.
b. Exhaust Fan - remove dust.
c. Doors - dust frames.
d. Partitions - clean and polish hinges.
e. Light Switches - remove fingerprints.
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69
3. Monthly - one night each month.
a. All Floors - machine scrub tiles and grout.
x. Xxxxx - wash with a germicidal
disinfectant.
4. Quarterly - one night every three months.
x. Xxxxx Grout Floors - bleach with sodium
hydrochloric solution.
D. ELEVATORS.
1. Daily - five nights each week.
a. Carpets - detail vacuum (edge).
x. Xxxxx/Trim/Doors - wipe clean, remove dust
and fingerprints from interior and exterior
surfaces.
c. Floor Tracks - vacuum and wipe clean; brush
and polish tracks and saddles.
d. Call Panel - wipe clean, remove
fingerprints.
2. Weekly - one night each week.
a. Clean ceilings and lamps.
b. Clean exterior doors.
E. LOBBY.
1. Daily - five nights each week.
a. Carpets - vacuum. Spot clean.
b. Stairs - at building entrances - sweep and
spot clean.
c. Non-Carpeted Floors - sweep and damp mop.
Vacuum and shake out mats.
d. Doors - clean. Wipe down pull plates, push
plates and kick plates.
e. Handrails - damp wipe.
f. Interior and Exterior Ash Urn/Trash
Receptacles - remove waste. Wipe interior
and exterior surfaces.
g. Building Surfaces and Furniture - remove
dust with lambswool duster.
h. Directory Boards/Kiosks - remove dust and
fingerprints.
2. Weekly - one night each week.
a. Janitor Closets - sweep and mop.
b. Vinyl Tile flooring - spray buff.
x. Xxxxxxx Surfaces - damp wipe.
d. Cove Base - damp mop.
e. Carpets - detail clean (edge).
X-0
00
x. Xxxxxxxx Xxxxxxxx - clean threshold.
3. Monthly - one night each month.
a. Waste Receptacles - clean/sanitize interior
and exterior.
b. Vinyl Tile Flooring - strip and re-wax.
c. Clean marble surface as directed by
property management.
F. BUILDING STAIRWAYS AND LANDINGS.
1. Daily - five nights each week.
a. Stairs - remove trash.
b. Stairway Landings - sweep/vacuum.
c. Doors - clean. Wipe down push plates, pull
plates and kick plates.
2. Weekly - one night each week.
a. Stairs - scrub stairs and stair corners
and/or mop surfaces.
3. Monthly - one night each month.
a. Stairs - scrub stairs and stair corners.
G. RETAIL. Night staff will make best efforts to clean space
prior to tenants close of business.
H. PATIOS/SIDEWALKS.
1. Daily - five nights each week.
a. Police for trash - all areas including
planting beds and along curbs.
b. Empty trash receptacles and ash urns.
c. Straighten furniture.
d. Remove gum.
e. Services performed as necessary.
f. Steam and/or pressure wash pavers.
g. Clean/wash fountains, chairs and trash
receptacles.
I. LOADING DOCK AREA.
1. Daily - five nights each week.
a. Keep dumpster and surrounding area free of
debris, water and oil.
b. Maintain all ramps and stairs free of
debris and spills.
2. Weekly - one night each week.
a. Hand or machine scrub dock, ramps and
stairs.
b. Clean handrails.
G-5
71
3. Monthly - one night each month.
a. Machine scrub or pressure wash parking
area.
b. Remove gum.
J. SECURITY CONSOLE/CONTROL CENTER (IF APPLICABLE).
1. Daily - five nights each week.
a. Area to be kept clean and spotless at all
times.
b. All furniture, fixtures, glass, doors,
thresholds, etc. to be cleaned and
polished.
c. Computer equipment and alarm boards are not
to be touched without approval of property
management and only with the supervision of
building engineer.
II. DAYPORTER RESPONSIBILITIES.
A. DAILY.
1. Pick up trash throughout grounds, including parking
lots, park entrances and picnic areas. Clean trash
from tree grates and planters.
2. Police stairtowers, corridors and loading dock for
trash, debris, cigarette butts, door props, etc.
3. Police all restrooms, stairtowers, vacant spaces,
lobbies and corridors for burned out bulbs (fixtures
and exit lights) and for stained ceiling tiles.
4. Sweep/vacuum all entrance plazas, exterior
stairwells, garages, etc.
5. Inspect restrooms. Re-stock supplies as necessary.
Clean counters. Compact trash or replace trash bags
as necessary.
6. Clean perimeter door glass, inside and out; polish
door handles.
7. On all floors, remove cigarette butts and trash from
elevator lobby ashtrays. Replace sand as necessary.
8. At all building entrances, remove cigarette butts
and trash from ashtrays. Replace sand as necessary.
9. Wipe off equipment and mirrors in health clubs and
pick up trash.
10. Check and clean conference rooms twice daily. Clean
kitchen area including dishes (if applicable).
11. Clean smoking room (if applicable) and empty trash
cans and ashtrays (if applicable).
12. Clean janitorial closets and organize their contents
as necessary.
13. Add or replace air freshener products as needed,
with product to be supplied by property manager.
B. WEEKLY.
1. Check stairwells inside once each week and parking
deck stairwell twice each week. Dust and pick up
trash as needed.
C. MONTHLY.
G-6
72
1. Pressure wash (equipment provided by property
manager) sidewalks, entrance plazas, parking garage
areas, exterior stairs, etc., as required by
property manager.
2. Inspect all restrooms. Test all fixtures and
dispensers and make repair list for faucets, soap
dispensers, toilet tissue dispensers, toilets, wall
covering, door closures, etc.
D. AS NEEDED.
1. Respond to tenant calls or work-orders, particularly
for the following typical requests: lock-outs; extra
trash/recycling pick-up; toilet/sink clogs and
related clean-ups; light bulb replacements (when
property manager's staff is not available); special
vacuuming for meetings; follow-up on items not
finished by night cleaners; errand-running; memo
delivery.
2. Lay calcium chloride on sidewalks (foul weather
only).
3. Perform special projects as directed by property
manager from time to time.
4. Vacuum lobby and elevator carpets and walk-off mats;
put out "Caution: Wet Floor" signs when it rains.
Clean entrance doors, side glass and ash urns. Shine
all metal surfaces as necessary.
5. Sweep and/or damp mop granite, ceramic and other
non-carpeted common area flooring as necessary,
particularly after it rains.
6. Remove trash, debris and dead leaves from planter
bed areas in lobbies.
7. Clean glass on lobby directory.
8. Remove fingerprints from and polish as necessary all
brushed or polished chrome and brass finishes on
doors, around elevators, and inside elevators on
lobby level; polish lobby handrails.
9. On all floors, spot vacuum corridor carpets.
10. Perform special projects as directed by property
manager or Contractor from time to time.
E. WINDOW WASHING.
1. Exterior Windows: Twice each calendar year.
2. Interior Windows: Once each calendar year.
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EXHIBIT H
NON-DISTURBANCE, ATTORNMENT AND SUBORDINATION AGREEMENT
THIS AGREEMENT is made and entered into this _____ day of ______,
19__, by and among METROPOLITAN LIFE INSURANCE COMPANY, A NEW YORK CORPORATION
(hereinafter called the "Lender"), NOVA GEORGIA SERVICES, L.P., A GEORGIA
LIMITED PARTNERSHIP (hereinafter called the "Tenant") and EOP-PERIMETER CENTER,
L.L.C., A DELAWARE LIMITED LIABILITY COMPANY (hereinafter called the
"Landlord").
WITNESSETH
WHEREAS, on ________________ Landlord entered into and delivered that
certain Deed to Secure Debt and Security Agreement in favor of Lender recorded
in Deed Book ______, Page ______ Records of ______________ County, Georgia
(said Deed to Secure Debt and Security Agreement being hereinafter called the
"Security Deed"), conveying the property described therein, which is located at
_____________________________________, ________________ County, Georgia and
commonly known as _________________________, to secure the payment of the
indebtedness described in the Security Deed;
WHEREAS, Landlord and Tenant made and entered into that certain Lease,
dated _________________________, 19__, with respect to certain premises therein
described, known as __________________ (said Lease being hereinafter called the
"Lease"; said premises being hereinafter called the "Leased Premises"); and
WHEREAS, the parties hereto desire to enter into this Non-Disturbance,
Attornment and Subordination Agreement;
NOW THEREFORE, for and in consideration of the mutual covenants
hereinafter set forth, Lender, Tenant and Landlord hereby covenant and agree as
follows:
1. Non-Disturbance. So long as no default exists, nor any event
has occurred which has continued to exist for such period of
time (after notice, grace or cure periods, if any, required
by the Lease) as would entitle the lessor under the Lease to
terminate the Lease or would entitle such lessor to
dispossess the lessee thereunder, the Lease shall not be
terminated, nor shall such lessee's use, possession or
enjoyment of the Leased Premises be interfered with nor shall
the leasehold estate granted by the Lease be affected in any
other manner, in any exercise of the power of sale contained
in the Security Deed, or by any foreclosure or any action or
proceeding instituted under or in connection with the
Security Deed or in case the Lender takes possession of the
property described in the Security Deed pursuant to any
provisions thereof, unless the lessor under the Lease would
have had such right if the Security Deed had not been made,
except that the person or entity acquiring the interest of
the lessor under the Lease as a result of any such action or
proceeding, and the successors and assigns thereof
(hereinafter called the "Purchaser") shall not be (a) liable
for any act or omission of any prior lessor under the Lease
of which Lender has not received notice and the opportunity
to cure from Tenant; or (b) subject to any offsets or
defenses which the lessee under the Lease might have against
any prior lessor under the Lease of which Lender has not
received notice and the opportunity to cure from Tenant; or
(c) bound by any base rent, percentage rent or any other
payments which the lessee under the Lease might have paid for
more than the current month to any prior lessor under the
Lease; or (d) bound by any amendment or modification of the
Lease made without Lender's prior written consent, if such
consent is required pursuant to the terms of the Security
Deed; or (e) bound by any consent by any lessor under the
Lease to any assignment of the lessee's interest in the Lease
made without also obtaining Lender's prior written consent
(to the extent such consent may be required under the Lease),
if such consent is required pursuant to the terms of the
Security Deed.
2. Attornment. If the interests of the lessor under the Lease
shall be transferred by reason of the exercise of the power
of sale contained in the Security Deed, or by
H-1
74
any foreclosure or other proceeding for enforcement of the
Security Deed, the lessee thereunder shall be bound to the
purchaser under all of the terms, covenants and conditions of
the Lease for the balance of the term thereof and any
extensions or renewals thereof which may be effected in
accordance with any option therefor in the Lease, with the
same force and effect as if the Purchaser were the lessor
under the Lease, and Tenant, as lessee under the Lease, does
hereby attorn to the Purchaser, including the Lender if it be
the Purchaser, as its lessor under the Lease. Said attornment
shall be effective and self-operative without the execution
of any further instruments upon the succession by Purchaser
to the interest of the lessor under the Lease. The respective
rights and obligations of Purchaser and of the lessee under
the Lease upon such attornment, to the extent of the then
remaining balance of the term of the Lease and any such
extensions and renewals, shall be and are the same as now set
forth in the Lease except as otherwise expressly provided
herein.
3. Subordination. Subject in all respects to the provisions of
Paragraph 1 hereof, Tenant hereby subordinates all of its
right, title and interest as lessee under the Lease to the
right, title and interest of the Lender under the Security
Deed and Tenant further agrees that the Lease now is and
shall at all times continue to be subject and subordinate in
each and every respect to the Security Deed and to any and
all increases, renewals, modifications, extensions,
substitutions, replacements and/or consolidations of the
Security Deed.
4. Notice of Default by Lessor. Tenant, as lessee under the
Lease, hereby covenants and agrees to give Lender written
notice properly specifying wherein the lessor under the Lease
has failed to perform any of the covenants or obligations of
the lessor under the Lease, simultaneously with the giving of
any notice of such default to the lessor under the provisions
of the Lease. Tenant agrees that Lender shall have the right,
but not the obligation, within 30 days after receipt by
Lender of such notice (or within such additional time as is
reasonably required to correct such default not to exceed 120
days) to correct or remedy or cause to be corrected or
remedied, each such default before the lessee under the Lease
may take any action under the Lease by reason of such
default. Such notices to Lender shall be delivered in
duplicate to:
Metropolitan Life Insurance Company
Xxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Executive Vice President Real Estate Investments
and
Metropolitan Life Insurance Company
000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Vice President
or to such other address as the Lender shall have designated
to Tenant by giving written notice to Tenant at the Leased
Premises or to such other address as may be designated by
written notice from Tenant to Lender.
5. No Further Subordination. Landlord and Tenant covenant and
agree with Lender that there shall be no further
subordination of the interest of lessee under the Lease to
any Lender or to any other party without first obtaining the
prior written consent of Lender. Any attempt to effect a
further subordination of lessee's interest under the Lease
without first obtaining the prior written consent of Lender
shall be null and void.
6. As to Landlord and Tenant. As between Landlord and Tenant,
Landlord and Tenant covenant and agree that nothing herein
contained nor anything done pursuant to the provisions hereof
shall be deemed or construed to modify the Lease.
7. As to Landlord and Lender. As between Landlord and Lender,
Landlord
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75
and Lender covenant and agree that nothing herein contained
nor anything done pursuant to the provisions hereof shall
be deemed or construed to modify the Security Deed.
8. Title of Paragraph. The titles of the paragraphs of this
agreement are for convenience and reference only, and the
words contained therein shall in no way be held to explain,
modify, amplify or aid in the interpretation, construction or
meaning of the provisions of this agreement.
9. Governing Law. This agreement shall be governed by and
construed in accordance with the laws of the State of
Georgia.
10. Provisions Binding. The terms and provisions hereof shall be
binding upon and shall inure to the benefit of the heirs,
executors, administrators, successors and permitted assigns,
respectively, of Lender, Tenant and Landlord. The reference
contained to successors and assigns of Tenant is not intended
to constitute and does not constitute a consent by Landlord
or Lender to an assignment by Tenant, but has reference only
to those instances in which the lessor under the Lease and
Lender shall have given written consent to a particular
assignment by Tenant thereunder.
IN WITNESS WHEREOF, the parties have hereunto set their respective
hands and seals as of the day, month and year first above written.
As to Tenant: TENANT:
Signed, sealed and delivered -------------------------------------
in the presence of:
-------------------------------------
------------------------------------- By:
Unofficial Witness ----------------------------------
Its:
---------------------------------
------------------------------------
Notary Public
[NOTARIAL SEAL]
Commission Expiration Date:
-------------------------------
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76
As to Landlord: LANDLORD:
Signed, sealed and delivered -------------------------------------
in the presence of:
-------------------------------------
------------------------------------- By:
Unofficial Witness ----------------------------------
Its:
---------------------------------
------------------------------------
Notary Public
[NOTARIAL SEAL]
Commission Expiration Date:
-------------------------------
As to Lender: LENDER:
Signed, sealed and delivered METROPOLITAN LIFE INSURANCE
in the presence of: COMPANY, A NEW YORK CORPORATION
------------------------------------ -------------------------------------
Unofficial Witness By: Xxxxxx X. Xxxxxxx
Its: Assistant Vice President
------------------------------------
Notary Public
[NOTARIAL SEAL]
Commission Expiration Date:
--------------------------------
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77
EXHIBIT I
GUARANTY OF LEASE
FOR VALUE RECEIVED and in consideration for and as an inducement to
EOP-PERIMETER CENTER, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY ("Landlord")
to lease certain real property to NOVA GEORGIA SERVICES, L.P., A GEORGIA
LIMITED PARTNERSHIP, as tenant ("Tenant"), pursuant to a lease dated ________,
_____ (the "Lease") by and between Landlord and Tenant, the undersigned, NOVA
CORPORATION, A DELAWARE CORPORATION ("Guarantor"), does hereby unconditionally
and irrevocably guarantee to Landlord the punctual payment of all Rent (as such
term is defined in the Lease) payable by Tenant under the Lease throughout the
term of the Lease and any and all renewals and extensions thereof in accordance
with and subject to the provisions of the Lease, and the full performance and
observance of all other terms, covenants, conditions and agreements therein
provided to be performed and observed by Tenant under the terms of the Lease,
for which the undersigned shall be jointly and severally liable with Tenant. If
any default on the part of Tenant shall occur under the Lease, the undersigned
does hereby covenant and agree to pay to Landlord in each and every instance
such sum or sums of money and to perform each and every covenant, condition and
agreement under the Lease as Tenant is and shall become liable for or obligated
to pay or perform under the Lease, together with the costs reasonably incurred
by Landlord in connection therewith, including, without limitation, reasonable
attorneys' fees. Such payments of Rent and other sums shall be made monthly or
at such other intervals as the same shall or may become payable under the
Lease, including any accelerations thereof, all without requiring any notice
from Landlord (other than any notice required by the Lease) of such non-payment
or non performance, all of which the undersigned hereby expressly waives.
The maintenance of any action or proceeding by Landlord to recover any
sum or sums that may be or become due under the Lease and to secure the
performance of any of the other terms, covenants and conditions of the Lease
shall not preclude Landlord from thereafter instituting and maintaining
subsequent actions or proceedings for any subsequent default or defaults of
Tenant under the Lease. The undersigned does hereby consent that without
affecting the liability of the undersigned under this Guaranty and without
notice to the undersigned, time may be given by Landlord to Tenant for payment
of Rent and such other sums and performance of said other terms, covenants and
conditions, or any of them, and such time extended and indulgence granted, from
time to time, or Tenant may be dispossessed or Landlord may avail itself of or
exercise any or all of the rights and remedies against Tenant provided by law
or by the Lease, and may proceed either against Tenant alone or jointly against
Tenant and the undersigned or against the undersigned alone without first
prosecuting or exhausting any remedy or claim against Tenant. The undersigned
expressly waives the right to require Landlord to take action against Tenant as
provided for in O.C.G.A. 10-7-24 (Xxxxxx 1981, as amended or hereafter
amended). The undersigned does hereby further consent to any subsequent change,
modification or amendment of the Lease in any of its terms, covenants or
conditions, or in the Rent payable thereunder, or in the premises demised
thereby, or in the term thereof, and to any assignment or assignments of the
Lease, and to any subletting or sublettings of the premises demised by the
Lease, and to any renewals or extensions thereof, all of which may be made
without notice to or consent of the undersigned and without in any manner
releasing or relieving the undersigned from liability under this Guaranty.
The undersigned does hereby agree that the bankruptcy of Tenant shall
have no effect on the obligations of the undersigned hereunder. The undersigned
does hereby further agree that in respect of any payments made by the
undersigned hereunder, the undersigned shall not have any rights based on
suretyship, subrogation or otherwise to stand in the place of Landlord so as to
compete with Landlord as a creditor of Tenant, unless and until all claims of
Landlord under the Lease shall have been fully paid and satisfied.
Neither this Guaranty nor any of the provisions hereof can be
modified, waived or terminated, except by a written instrument signed by
Landlord. The provisions of this Guaranty shall apply to, bind and inure to the
benefit of the undersigned and Landlord and their respective heirs, legal
representatives, successors and assigns. The undersigned, if there be more than
one, shall be jointly and severally liable hereunder, and for purposes of such
several liability the word "undersigned" wherever used herein shall be
construed to refer to each of the undersigned parties separately, all in the
same manner and with the same effect as if each of them had signed separate
instruments, and this Guaranty shall not be revoked or impaired as to any of
such parties by the death of another party or by revocation or release of any
obligations hereunder of any other party. If Landlord should retain counsel
and/or institute any
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suit against Guarantor to enforce this Guaranty or any covenants or obligations
hereunder, then Guarantor shall pay to Landlord, upon demand, all reasonable
attorneys' fees, costs and expenses, including, without limitation, court
costs, filing fees, recording costs, and all other costs and expenses incurred
in connection therewith (all of which are referred to herein as "Enforcement
Costs"), in addition to all other amounts due hereunder. This Guaranty shall be
governed by and construed in accordance with the internal laws of the state
where the premises demised by the Lease are located. For the purpose solely of
litigating any dispute under this Guaranty, the undersigned submits to the
jurisdiction of the courts of said state.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty as of
the date of the Lease.
ATTEST/ WITNESS: GUARANTOR:
NOVA CORPORATION, A DELAWARE CORPORATION
By:
-------------------------------- -------------------------------------
Name (print): Name:
-------------------- -----------------------------------
Title:
-------------------------------- ----------------------------------
Name (print):
-------------------
STATE OF )
-----------------
) SS
COUNTY OF )
----------------
BE IT REMEMBERED, that on the ____ day of ___________, 19__, before
me, a Notary Public in and for said County personally appeared
__________________________ _____________________________, by
__________________, its ___________ President, the GUARANTOR in the foregoing
GUARANTY who acknowledged that the signing thereof was the duly authorized act
and deed of said corporation and his free and voluntary act and deed as said
officer for the uses and purposes therein mentioned.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my
official seal on the day and year first above written.
-------------------------------
Notary Public
My Commission Expires:
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