SPACE LEASE
BETWEEN
1600 PEACHTREE, L.L.C.
"LESSOR"
AND
EQUIFAX INC.
"LESSEE"
SPACE LEASE
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THIS SPACE LEASE (this "Lease"), made and entered into this ____ day of
March, 1998, by and between 1600 PEACHTREE, L.L.C. ("LESSOR") , and EQUIFAX INC.
("LESSEE"), a Georgia corporation.
ARTICLE I
DEMISE OF PREMISES
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SECTION 1.01. DEMISE. For and in consideration of the payment of rent
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herein reserved to be paid by LESSEE and the performance of the covenants and
agreements herein contained on the part of LESSEE to be kept, observed and
performed, LESSOR does hereby demise and lease to LESSEE, and LESSEE does hereby
take and hire, upon and subject to the terms and conditions herein contained,
approximately 92,500 square feet of building space which is outlined in red on
Exhibit "A" hereof (the "Premises") and located on the land described in Exhibit
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"I" hereto (the "Land") together with (i) the right to park up to 390
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automobiles in the multistory parking garage which is situated under the
building in which the Premises is located and in the surface parking spaces
located around the Premises and the Land (provided that if the aggregate number
of parking spaces available in such parking garage and the surface parking
spaces is less than 1,100, then the 390 parking spaces for LESSEE shall be
reduced proportionately to maintain the same ratio of parking spaces as 390
bears to 1,100 but in no event shall such number be less than 350), and (ii) the
non-exclusive right to use all access roads and drives that connect the parking
garage and surface parking to all public roads or private drives and the other
Common
Areas, provided that LESSOR may change, relocate or eliminate such access
roads or drives so long as it provides uninterrupted access to the parking
garage and surface parking spaces and such actions do not interfere with
LESSEE'S operations from the Premises, all subject to the encumbrances set forth
in Exhibit "B" hereof.
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SECTION 1.02. PARKING. In the event that either LESSOR or LESSEE requires
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parking spaces in addition to those available in the parking garage under the
Premises and the surface parking spaces, LESSOR will at LESSOR'S expense pave
and stripe the land around the parking garage. LESSEE will reimburse LESSOR for
a share of LESSOR'S actual, out-of-pocket expense in providing such paving and
striping, such share to be determined by the ratio of the number of parking
spaces available to LESSEE and the total number of parking spaces after such
paving and striping. In the event that LESSOR provides reserved parking spaces
to any third party tenant of the buildings on the Land, then a ratio shall be
established showing the number of reserved spaces provided to such third party
tenant to the number of square feet leased by such third party tenant, and
LESSEE shall be entitled to a number of comparable reserved parking spaces so
that its ratio of reserved spaces to square feet leased is equal to such ratio
for such third party tenant. LESSOR cannot grant to third party tenants of the
buildings on the Land a number of parking spaces which when added to those
allotted to LESSEE herein exceed the available parking at the Premises and on
the Land unless LESSOR adds an additional number of spaces acceptable to LESSEE.
In the event that LESSEE shall obtain for its own benefit the right to park
automobiles on property other than the Land, such rights shall be exclusively
for the benefit of LESSEE and shall not affect the provisions of this paragraph.
LESSEE represents that as of
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the date hereof there are at least 987 parking spaces located in the parking
garage and the surface parking spaces located around the Premises and the Land.
SECTION 1.03. CAFETERIA. LESSOR further grants to LESSEE the right to
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use the cafeteria presently located in the building in front of the building in
which the Premises is located, together with the right of reasonable access
through such adjoining building to such cafeteria until such time as LESSOR
leases to a third party the building located in front of the building in which
the Premises is located and commonly referred to as "Building B". In the event
that LESSOR leases the buildings in front of the building in which the Premises
is located to an entity which intends to operate the cafeteria presently located
in such building, LESSOR will use reasonable efforts to insert into its lease
with such entity that such entity must negotiate with LESSEE for an agreement
permitting LESSEE'S employees in the Premises to utilize such cafeteria in
common with the employees of such entity. In the event that LESSEE's employees
are not allowed to use such cafeteria, LESSEE shall be permitted to remove all
of its equipment from such cafeteria, and LESSEE shall repair any damage to such
building as a result of such removal. As of the date hereof, the cafeteria
equipment of LESSEE is described on Exhibit "H" hereto. In the event that after
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March 31, 2004 LESSEE is the exclusive user of such cafeteria LESSEE shall pay
Rent with respect to the cafeteria for so long as LESSEE is the exclusive user
thereof at the rate of $11.00 per square foot being used for the cafeteria.
LESSEE and LESSOR shall in good faith attempt to agree upon a calculation of the
square footage of the cafeteria being used, and in the event that LESSOR and
LESSEE are unable to agree upon such calculation, then the calculation of such
square footage shall be made by an independent architect mutually acceptable to
LESSOR and
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LESSEE in accordance with the standard method for measuring floor area in office
buildings as calculated pursuant to the 1996 BOMA Standard for calculation.
SECTION 1.04. SIGN. LESSEE has a sign on the rear of the parking garage
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facing the I-75, I-85 Interchange and LESSEE may keep such sign in place, paying
all costs and expenses in connection therewith until the earlier of (i) March
31, 2004; or (ii) the date of receipt by LESSEE of a written notice stating that
it is a notice given pursuant to this Section 1.04 and that LESSOR has executed
a lease with a tenant any part of the buildings on the Land (other than the
building in which the Premises is located) (the "Sign Removal Date").
Commencing on the Sign Removal Date , LESSEE will, at LESSEE'S sole cost and
expense, remove such sign and repair all damage to the building caused by such
sign and/or its removal and provided that LESSEE completes removal and
restoration within 30 days after the Sign Removal Date, LESSEE will be entitled,
throughout the balance of the Term, to maintain a smaller sign on the rear of
such parking garage on the following terms and conditions:
(i) the sign will have on it only the name of LESSEE'S company or division,
and the size and format of the letters forming such name will be subject to
LESSOR'S prior written approval, not to be unreasonably withheld or delayed;
(ii) the sign will be placed below the sign of the principal occupant of
the building which was formerly LESSEE'S headquarters building; and
(iii) the sign will occupy not more than forty percent (40%) of the
space allowed by applicable municipal ordinances.
The provision of this Section 1.04 shall be for the benefit of Equifax Inc. only
and its successors by merger or a purchaser of all or substantially all of the
assets of Equifax Inc.
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Lessee shall be entitled to have "directional" signs on the Land, but the
size and location of such directional signs will always be subject to Lessor's
prior written approval.
ARTICLE II
TERM OF LEASE
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SECTION 2.01. TERM OF LEASE. The term of this Lease (the "Term") shall
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commence on the date that the termination of the HEADQUARTERS FACILITY LEASE
becomes effective pursuant to a Lease Termination Agreement of even date
herewith and, unless sooner terminated as herein provided, shall continue
thereafter for fourteen (14) years. Upon the commencement of the Term, LESSOR
and LESSEE shall upon the request of either of them enter into an agreement
confirming the dates the Term commenced and is scheduled to terminate.
ARTICLE III
COVENANTS AND WARRANTIES OF LESSOR AND LESSEE
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SECTION 3.01. DEMISE OF LEASEHOLD ESTATE BY LESSOR. LESSOR warrants that
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it has full right and lawful authority to enter into this Lease; and that it is
lawfully seized of good, marketable and indefeasible record fee simple title to
the Land and the Premises, subject to the encumbrances set forth in Exhibit "B"
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hereof.
SECTION 3.02. AUTHORITY OF LESSEE. LESSEE warrants that it has full right
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and lawful authority to enter into this Lease and to keep and perform the
covenants herein contained.
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SECTION 3.03. QUIET ENJOYMENT. LESSOR warrants that, unless an Event of
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Default shall have occurred and be continuing, the LESSEE'S peaceful possession,
use and enjoyment of the Premises in accordance with this Lease shall not be
interrupted or disturbed by the LESSOR or any person or entity claiming by,
through or under the LESSOR.
ARTICLE IV
ANNUAL RENT AND ADDITIONAL RENTAL
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SECTION 4.01. RENT. LESSEE covenants and agrees to pay LESSOR, in lawful
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money of the United States of America, without set-off or deduction, during the
Term as rent hereunder, a base annual rent (the "Rent") as follows:
YEARS RENT RENT BASED ON 92,500 SQUARE
FEET LEASED
(i) 1-5 $ 9.50 per square foot $ 878,750
(ii) 6-10 $10.25 per square foot $ 948,125
(iii) 11-14 $11.00 per square foot $1,017,500
Rent shall be payable in equal monthly installments, in advance, on or
before the first day of each month. Rent for a partial month at the beginning
or end of the term shall be prorated.
SECTION 4.02. ADDITIONAL RENTAL. LESSEE covenants and agrees to pay to
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LESSOR, from time to time as provided in this Lease, and as "Additional Rental":
(a) interest (hereinafter called "Interest") at the annual rate equal to ten
percent (10%) on all installments of Rent not paid within five (5) days after
LESSEE receives from LESSOR written notice that one or more installments of Rent
were not paid on the due date, until the date of payment; (b) all other sums
which LESSEE herein agrees to assume and pay to third parties in those
circumstances where
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LESSEE shall fail or refuse to pay such third parties and the same is paid by
LESSOR; and (c) Interest at the rate specified in Section 4.02 on the sums
described in (b), next preceding, from the due date until paid or, if demand is
required therefor by the terms of this Lease, from the date of demand until
paid. In the event of any failure on the part of LESSEE to pay any Additional
Rental, LESSOR shall have all the rights, powers and remedies provided for in
this Lease or at law or in equity or otherwise in the event of the nonpayment of
Rent.
SECTION 4.03. NET LEASE; NON-TERMINATION. This Lease is a net Lease and
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Rent and Additional Rental shall be paid without notice, demand (except as
expressly provided herein in the case of certain Additional Rental),
counterclaim, setoff, deduction or defense and, without abatement, suspension,
deferment, diminution or reduction. Except as otherwise provided in this Lease,
this Lease shall not terminate nor shall LESSEE have any right to terminate this
Lease or be entitled to the abatement of any Rent hereunder or any reduction
thereof, nor shall the obligations of LESSEE under this Lease be otherwise
affected, by reason of (a) any damage to or destruction of all or any portion of
the Premises from whatever cause, except as provided in ARTICLE XIII or ARTICLE
XIV, (b) the prohibition, limitation or restriction of or interference with
LESSEE'S use of all or any portion of the Premises (except when such constitutes
a breach of LESSOR'S covenant of quiet enjoyment), (c) the failure on the part
of LESSOR to perform or comply with any term, provision or covenant of any other
agreement to which LESSOR and LESSEE may be parties, (d) the entry of a decree
or order for relief by a court having jurisdiction in the Premises in respect of
LESSEE in an involuntary case under the federal bankruptcy laws, as now or
hereafter constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of LESSEE or for any
substantial part of its property, or ordering the winding-up or liquidation of
its affairs and the continuance of any such decree or order unstayed and in
effect for a period of sixty (60) consecutive days, (e) the commencement by
LESSEE of a voluntary case under the federal bankruptcy laws, as now constituted
or hereafter amended, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or the consent by it to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator
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(or other similar official) of LESSEE or for any substantial part of its
property, or the making by it of any assignment for the benefit of creditors, or
the failure of LESSEE generally to pay its debts as such debts become due, or
the taking of corporate action by LESSEE in furtherance of any of the foregoing,
or (f) any claim which LESSEE has or might have against LESSOR. Except as
otherwise expressly provided in this Lease, LESSEE waives all rights now or
hereafter conferred by statute or otherwise to quit, terminate or surrender this
Lease or the leasehold estate in the Premises or any part thereof, or to any
abatement, suspension, deferment, diminution or reduction of Rent. It is the
purpose and intent of LESSOR and LESSEE that Rent and Additional Rental (where
payable to LESSOR) shall be absolutely net to LESSOR, so that this Lease shall
yield, net, to LESSOR, Rent specified in 4.01 and Additional Rental specified in
4.02 hereof throughout the Term, and that all costs, expenses and obligations of
every kind or nature whatsoever relating to the Premises which may arise and
become due as specified in 5.01 and 5.02 hereof or elsewhere herein during the
Term shall be paid by LESSEE, and that LESSOR shall be indemnified and saved
harmless by LESSEE from and against the same, except as expressly provided
herein.
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ARTICLE V
TAXES, ASSESSMENTS AND CHARGES
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SECTION 5.01. TAXES AND ASSESSMENTS. Subject to the provisions of 11.01
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hereof (concerning "Permitted Contests"), LESSEE covenants and agrees to pay to
LESSOR after receipt of a copy of the tax xxxx and a calculation of LESSEE'S
prorata share of taxes from Lessor, but before the same become delinquent and
before any fine, penalty, or interest may be added for nonpayment, LESSEE'S
prorata share of any and all taxes, assessments, license or permit fees,
excises, imposts and charges of every nature and classification (all or any one
of which are hereinafter referred to as "Tax") that at any time during the Term
are levied, assessed, charged or imposed upon LESSOR'S fee simple and/or
reversionary interest in land and buildings on and in which the Premises is
situated, LESSEE shall pay to LESSOR any tax on Rent or Additional Rental
reserved or payable hereunder (including any gross receipts or other taxes
levied upon, assessed against or measured by the Rent or Additional Rental);
provided, however, that LESSEE shall not be obligated to pay any municipal,
state or federal income, inheritance or estate tax or any tax imposed, levied or
assessed with respect to or because of the income, appreciation or other benefit
derived by LESSOR from or by virtue of this Lease or the estate of LESSOR under
this Lease under currently existing applicable laws and regulations; provided,
however, that if at any time during the Term the methods of taxation prevailing
at the commencement of the Term shall be altered so that any imposition which at
the commencement of or during the Term is or shall be levied, assessed or
imposed on real estate and the improvements thereon is thereafter levied,
assessed or imposed wholly or partially (a) on the rents received from real
estate or the improvements thereon, or (b) as a tax assessment, levy or license
fee (regardless of the form and
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regardless of the taxing authority) upon LESSOR, measured by Rent and Additional
Rental payable under this Lease, then all such substitute taxes, assessments,
levies or license fees shall be deemed to be included within the meaning of the
term "Tax" for purposes hereof, and LESSEE shall pay and discharge the same as
herein provided in respect to the payment of Tax. LESSEE'S prorata share shall
be determined by multiplying the Tax by a fraction, the numerator of which is
the total number of square feet in the Premises and the denominator of which is
the total number of square feet in the office buildings located on the Land, but
not the parking garage which are the subject of the Tax. The quotient so
obtained shall be LESSEE'S prorata share of such Tax. As of the date hereof,
LESSEE'S prorata share of such Tax is 27.82% (92,500 / 332,500). Tax due during
the initial and final year of the Term, will be prorated. Lessee shall not be
responsible for any part of any tax increases that are assessed because of new
construction on the Land unless such new construction is performed at the
request of Lessee. In the event of any assessment for improvements serving or
relating to the use of the Premises which is payable in installments, LESSEE'S
prorata share thereof shall be further limited to those installments becoming
due during the Term.
Notwithstanding the calculation of LESSEE's prorata share as provided
above, LESSOR may in connection with the leasing of the space in the buildings
located in front of the building in which the Premises is located remeasure the
rentable square feet of such improvements and the Premises. Such remeasurement
shall be performed by an independent architect reasonably acceptable to LESSOR
and LESSEE and shall be performed in accordance with the provisions of Section
1.03 of this Lease. Upon completion of such remeasurement, LESSOR shall provide
a copy of such architect's determination to LESSEE, and LESSEE's prorata share
shall be
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redetermined from and after such date, with the area of the improvements to the
Land and the Premises being based on such measurement. Such recalculation shall
only affect the calculation of LESSEE's prorata share and shall not, without
limiting the foregoing, affect the calculation of the Rent.
SECTION 5.02. CHARGES. LESSOR covenants and agrees that it shall be
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responsible for providing to the Premises (including the signs maintained by
LESSEE pursuant to 1.04 above) and the Common Facilities all public or private
utility services including, but not limited to, water, sewer, gas, light, heat
and air conditioning, telephone, electricity, trash removal, power and other
utility and communication services, together with the services described in
Exhibit "C" attached hereto and made a part hereof. Subject to the provisions
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of 11.01 hereof (concerning Permitted Contests) and 6.03 (concerning Audits),
LESSEE covenants and agrees that it shall pay in accordance with usual and
customary business practices as such shall become due all charges for all public
or private utility services including, but not limited to, water, sewer, gas,
light, heat and air conditioning, telephone, electricity, trash removal, power
and other utility and communications services together with the services
described in Exhibit "C" (all or anyone of which are hereinafter referred to as
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"Charge") that at any time during the Term are rendered or become due and
payable with respect to the Premises. LESSEE will be responsible for installing
meters so that electrical service to the Premises is separately metered for the
Premises, and LESSOR shall install meters so that electrical service to the
balance of the improvements on the Land is separately metered. LESSEE shall pay
to LESSOR within thirty (30) days of receipt of an invoice therefor from LESSOR
LESSEE's prorata share of the actual, out-of-pocket costs of the Charges for
water and sewer, subject to the provisions of 6.03 (concerning Audits) below.
If LESSEE's business in the
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Premises, or any portion thereof, is materially adversely affected as a result
of any interruption in the services described above as a result of the acts or
omissions of LESSOR or its agents or contractors for a period of five (5)
consecutive business days, then Rent and all other amounts payable hereunder
shall xxxxx in the proportion that the Premises are so materially adversely
affected until the entire Premises or portion thereof that was so materially
adversely affected are again usable without such material adverse effect, such
abatement to commence on the sixth (6th) day after such interruption.
The parties acknowledge that the Premises contains a heating and air
conditioning system designed primarily to provide service to the Premises, and
that the remainder of the buildings on the Land also have a separate heating and
air conditioning system which is intended primarily to provide service to such
buildings. Notwithstanding the foregoing, such systems are designed such that
they may serve the other buildings located on the Land. LESSOR and LESSEE agree
that the heating and air conditioning system serving the Premises and the
heating and air conditioning system serving the balance of the buildings on the
Land, respectively, may be utilized to provide such service to the other
building(s) in the event that the main system for such improvements is
temporarily interrupted. The party receiving such temporary service shall pay
to the other within thirty (30) days of demand therefor a charge of $35.00 per
hour for such service. Upon the request of either LESSOR or LESSEE, an
independent third party building manager may make recommendations to LESSOR and
LESSEE for the adjustment of such rate, which rate shall be based upon the
chilled water rate for operating the respective heating and air conditioning
systems. Such adjustments shall be subject to the mutual approval of LESSOR and
LESSEE.
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SECTION 5.03. GENERAL. LESSOR shall prepare and file, all reports and
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returns required by law and governmental regulations with respect to any Tax and
shall furnish copies thereof to LESSEE. LESSOR and LESSEE shall promptly
forward to the other, upon receipt, copies of any xxxx or assessment respecting
any Tax. Upon request of LESSEE, LESSOR agrees to furnish and deliver to LESSEE
receipts evidencing the payment of any Tax and/or Charge payable by LESSEE as in
5.01 provided. If any Tax and/or Charge may be paid in installments, LESSOR
shall be obligated to pay only such installments as they become due; provided,
however, that any and all installments which are incurred during the Lease Term,
and become due and payable after the expiration of the Term shall be paid on or
before the date which is prior to the expiration of the Term, or, in event of
the termination of this Lease, prior to the date of such termination. If LESSEE
fails to pay its prorata share of any Tax and/or Charge (or any installment
thereof) when due, LESSOR, without declaring a default hereunder, may, but shall
not be obligated to, pay any such Tax and/or Charge (or any installment thereof)
and any amount so paid by LESSOR, together with all reasonable costs and
expenses incurred by LESSOR in connection therewith, shall constitute Additional
Rental hereunder and shall be paid by LESSEE to LESSOR on demand with Interest
thereon in the manner provided in 4.03. LESSEE'S obligation to pay Taxes and
Charges which accrue during the Term shall survive any termination of this
Lease.
ARTICLE VI
CONDITION AND USE OF THE PREMISES
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SECTION 6.01. CONDITION OF THE PREMISES. LESSEE represents, covenants and
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agrees that the Premises in its present state is accepted as being in good order
and condition and that the
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Premises comply in all respects with the requirements of this Lease (including
without limitation the electrical capacity requirements specified in Section (f)
of Exhibit "C" hereto), and is in all respects suitable for the purposes
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intended by LESSEE. LESSOR leases the Premises and LESSEE accepts the Premises,
"as is" at the date hereof without representation or warranty by LESSOR, express
or implied, in fact or by law, and without recourse to LESSOR, with respect to:
(i) the condition of the Premises, including, but not limited to the soil and
subsurface conditions thereof; (ii) the ability to use the Premises for any
particular purpose; (iii) access to or from the Premises; or, (iv) the existence
or adequacy of present availability of any utilities to service the Premises,
including, but not limited to, drainage and sewage facilities.
SECTION 6.02. MAINTENANCE AND REPAIRS. LESSEE shall, at its own cost and
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expense, maintain the Premises, exterior and interior, structural and
nonstructural, in as good a condition and repair as existed on the date of this
Lease, normal wear and tear and damage by casualty or condemnation (subject to
the terms of this Lease) excepted, including, without limitation, repair,
maintenance and replacement of the exterior walls, roofs, the foundation and
structural frame of each building and the interior of each building, including
but not limited to the electrical systems, heating, air conditioning and
ventilation systems, plate glass, windows and doors, and sprinkler and plumbing
systems. Notwithstanding the foregoing, from and after the date that LESSOR
leases all or any portion of the buildings located in front of the building in
which the Premises are located to one or more tenants, LESSOR shall maintain the
exterior of the Premises including all structural elements of the Premises and
the interior of the Premises as hereinafter provided, in as good a condition and
repair as existed on the date of this Lease, normal wear and tear and damage by
casualty or condemnation (subject to the term of this Lease) excepted,
including, without
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limitation, repair, maintenance or replacement of the exterior walls, roofs, the
foundation and structural frame of each building and the major building systems
(including but not limited to the electrical systems, elevators, mechanical
systems, heating, air conditioning and ventilation systems and sprinkler and
plumbing systems). LESSEE shall within thirty (30) days of receipt from LESSOR
of an invoice therefor reimburse LESSOR for its actual, out-of-pocket expenses
reasonably incurred in connection with performing such obligations, subject to
the provisions of 6.03 hereof (concerning Audits). Notwithstanding anything
herein to the contrary, LESSEE shall not be responsible for the maintenance,
repair or replacement of the parking structure located below the Premises or any
structural elements thereof.
SECTION 6.03. COMMON FACILITIES. The Common Facilities shall consist of
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the drives, ways and access, the parking garage and the paved parking areas, the
landscaped areas, and the building entrance area and security room described in
Exhibit "G" hereto, all located on the Land formerly occupied by LESSEE as its
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headquarters facility.
LESSOR shall keep all Common Facilities in a first-class state of repair
and condition and shall regularly perform maintenance to such Common Facilities
to ensure that the same are in a first-class state of repair and condition
("Common Area Maintenance"). LESSOR'S obligations hereunder shall include, but
not be limited to: maintenance; repair required to clean, preserve and maintain
the Common Facilities; lighting facilities serving them; policing and traffic
direction; fire protection; security protection; ice and snow removal; removal
of trash, rubbish and debris; pest extermination; repairing all above and
underground utility conduits and lines and sewers wherever such lines run over
or under any part of the Common Facilities; public liability, workers'
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compensation, property damage and hazard insurance. All holes or breaks in the
paving shall be repaired by LESSOR immediately after LESSOR becomes aware of
such an occurrence.
LESSEE covenants and agrees to pay as provided herein its pro rata share
(determined as provided in 5.01 hereof) of the reasonable cost of Common Area
Maintenance ("Common Area Maintenance Cost") during the Term of this Lease,
which shall include, without limitation, the following costs or expenses
incurred in connection with or reasonably attributable to the maintenance,
repair and operation of the Common Facilities: lighting, gardening and
landscaping (including planting, replanting and replacing flowers and shrubs);
cleaning; public liability, workers' compensation, property damage and hazard
insurance; fire and security protection; personal property taxes; line painting;
sanitary control; water and sewerage charges; removal of ice, snow, trash,
rubbish, debris, garbage and other refuse; personnel to provide and supervise
such service and to direct parking (including unemployment and social security
taxes). Notwithstanding anything herein to the contrary, LESSEE shall be
responsible for all costs relating to the elevators located within the area
described in Exhibit "G" hereto and the elevators located within the Premises.
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In no event shall the Common Area Maintenance Cost include:
(i) cost of repairs and replacements to the extent that proceeds of
insurance or condemnation awards are received therefor;
(ii) interior improvements to individual tenant space or the cost of
any special work or service performed for any tenant at such
tenant's cost;
(iii) costs (or related depreciation) incurred in a comprehensive
rehabilitation or renovation of any building or improvement;
(iv) losses or damages caused by the negligence or willful misconduct
of LESSOR;
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(v) capital expenditures on the Land or any buildings or
improvements;
(vi) expenses for legal services and income tax accounting;
(vii) principal, interest, depreciation or the costs of obtaining
financing;
(viii) the cost of repairs or replacements incurred by reason of fire or
other casualty (but the amount of any deductible not exceeding
$100,000.00 may be included) or by reason of condemnation;
(ix) expenses incurred by LESSOR to lease space including leasing
commissions, advertising and promotional expenditures in
connection therewith;
(x) expenses for the replacement of any item covered under warranty
to the extent replaced without cost to LESSOR;
(xi) costs to correct any penalty or fine incurred by LESSOR due to
LESSOR's violation of any federal, state or local law or
regulation and any interest or penalties due for late payment by
LESSOR of any of the Common Area Maintenance Costs;
(xii) expenses for any item or service which LESSEE pays directly to a
third party or separately reimburses LESSOR and expenses incurred
by LESSOR to the extent the same are reimbursable or reimbursed
from any other tenants, occupants of the property, or third
parties other than as a reimbursement for Common Area Maintenance
Costs;
(xiii) expenses for any item or service not provided to LESSEE but
exclusively to certain other tenants in the building located on
the Land;
(xiv) a property management fee in excess of five percent (5.0%) of the
Common Area Maintenance Costs (provided that the Common Area
Maintenance Costs shall only include a management fee if such fee
is paid to an unaffiliated third party);
(xv) compensation of (i) employees above the grade of building
superintendent or building manager, and (ii) employees whose time
is not spent directly in the operation of the buildings on the
Land;
(xvi) LESSOR's general corporate overhead and administrative expenses
except if it is solely for the buildings on the Land;
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(xvii) taxes (other than personal property taxes on maintenance
equipment used in the performance of LESSOR's obligations with
respect to the Common Facilities);
(xviii) fees paid to affiliates of LESSOR to the extent that such fees
exceed the customary amount charged for the services provided;
(xix) costs for sculptures, paintings or other objects of art;
(xx) reserves;
(xxi) expenses incurred by LESSOR in order to comply with laws
(including without limitation Environmental Laws) or address
Hazardous Materials to the extent the same are not the
responsibility of LESSEE under this Lease; and
(xxii) any costs or expenses relating to the escalators located near
the area described in Exhibit "G" hereto.
----------
Prior to the commencement of the Term, and within ninety (90) days after the end
of each calendar year during the term hereof, LESSOR shall submit to LESSEE a
statement of the anticipated Common Area Maintenance Costs (the "Estimated
Costs"). The Estimated Costs for each such calendar year shall be the
anticipated for such calendar year as reasonably estimated by LESSOR in good
faith, which estimate shall bear a reasonable relationship to the Common Area
Maintenance Costs for the previous calendar years. LESSEE's prorata share of
any Estimated Costs shall be due and payable in twelve (12) monthly installments
on the same terms and conditions as payments of Rent. If LESSEE is in
possession of the Premises for a portion of a month, such obligation for said
month shall be prorated for the number of days of LESSEE's possession during
that month. Within ninety (90) days after the end of each calendar year, LESSOR
shall give LESSEE a detailed statement (the "Statement") as prepared by a
certified public accountant reasonably acceptable to LESSOR and LESSEE and
certified by LESSOR to be correct showing the total actual Common Area
Maintenance Costs for the prior calendar year
-18-
and LESSEE's prorata share thereof (provided that such statement need not be
prepared by a certified public accountant for so long as 1600 Peachtree, L.L.C.
or Wachovia Bank, N.A. (or any wholly-owned subsidiary or affiliate of Wachovia
Bank, N.A. or nominee thereof) is the LESSOR). In the event that the total of
the payments required herein which LESSEE has made for such calendar year is
less than LESSEE's actual prorata share, LESSEE shall pay the difference within
thirty (30) days after receipt of the Statement from LESSOR. At the option of
LESSEE, any overpayment by LESSEE shall be refunded to LESSEE within thirty (30)
days from the receipt of the Statement by LESSEE, or credited toward the amounts
next become due pursuant to this Section. LESSOR shall deliver a Statement to
LESSEE on or before March 31 of the calendar year following the year for which
the Statement applies.
LESSEE, at its expense, shall have the right, upon giving reasonable notice
to LESSOR, to audit LESSOR's books and records relating to any Common Area
Maintenance Costs payable hereunder for a period of up to two (2) years after
LESSEE's receipt of a Statement (the rights pursuant to this paragraph are
hereinafter referred to as an "Audit") . In the event that such audit reveals
that the amount of Common Area Maintenance Costs stated by LESSOR in a Statement
is in excess of three percent (3%) over the actual Common Area Maintenance
Costs, then LESSOR shall pay the reasonable costs and expenses incurred in
connection with such audit. In the event that LESSEE in good faith disputes all
or any portion of the amount due by LESSEE hereunder, LESSEE shall not be in
breach of this Agreement if LESSEE pays to LESSOR such amount as is not in
dispute, and any remaining amount in dispute between LESSOR and LESSEE with
respect to Common Area Maintenance Costs shall be determined by arbitration by a
panel of three (3) arbitrators in accordance with the rules and regulations for
commercial
-19-
matters then in effect for the American Arbitration Association or its successor
(the "AAA"). The determination of the arbitrators shall be final, binding and
conclusive on LESSOR and LESSEE, and judgment may be rendered thereon by any
court having jurisdiction, upon application of either LESSOR or LESSEE. Each
party shall have the right to select one of the arbitrators and shall be
responsible for the costs of their respective arbitrator and the third
arbitrator, who shall be a competent and impartial person with at least ten (10)
years experience in commercial leasing in the Atlanta metropolitan area, shall
be selected by the other two arbitrators or, failing agreement by them, the AAA.
The cost of such third arbitrator shall be borne equally by LESSOR and LESSEE.
Notwithstanding anything herein to the contrary (including without
limitation the provisions of Exhibit "C" hereto), LESSOR and LESSEE agree that
-----------
the maintenance and operation of the security system serving the Premises and
the balance of the improvements on the Land shall be performed jointly. LESSOR
shall not reduce the level of security provided to the Premises below that
provided as of the commencement of the Term or alter the physical security
system without the prior written approval of LESSEE. In addition, LESSOR shall,
at LESSEE's expense, upgrade or alter such security system affecting the
Premises as LESSEE may from time to time require.
SECTION 6.04. LESSEE'S PERSONAL PROPERTY; INDEMNITY. All of LESSEE'S
-------------------------------------
personal property now or hereafter placed or installed in the Premises ("Trade
Fixtures") shall be and remain LESSEE'S property at LESSEE'S sole risk, and
LESSOR shall not be liable for and LESSEE hereby releases LESSOR from any and
all liability for theft thereof or any damage thereto occasioned by any acts,
omissions or negligence of any third persons, or any act of God.
-20-
LESSEE shall have the right to install in the Premises additional Trade
Fixtures required by LESSEE or used by it in its business, and to remove any and
all Trade Fixtures upon expiration or termination of this Lease; provided,
however, that LESSEE shall repair and restore any damage or injury to the
Premises (to the condition in which the Premises existed prior to such
installation) caused by the installation and/or removal of any such Trade
Fixtures.
SECTION 6.05. ALTERATIONS AND ADDITIONS. So long as no Event of Default
--------------------------
remains uncured, LESSEE at its expense may make alterations of and additions
(both structural and non-structural) to the Premises or any part thereof,
provided that any alteration or addition (a) shall not change the general
character of the Premises as office space, or reduce the fair market value
thereof below its value immediately before such alteration or addition, or
impair the usefulness of the Premises as an office building (provided, however
that such requirements shall not be construed to require LESSEE to operate the
Premises as an office building, it being the intent of this Lease that the
Premises may be used for any lawful purpose), (b) is effected with due
diligence, in a good and workmanlike manner, in compliance with all legal
requirements and in a manner that will not unreasonably disturb LESSOR or
LESSOR's tenants, (c) is promptly and fully paid for by LESSEE, and (d) is made,
in case the estimated cost of such alteration or addition exceeds $2,000,000,
under the supervision of an architect or engineer reasonably satisfactory to
LESSOR and in accordance with plans, specifications and cost estimates approved
by LESSOR, such approval not to be unreasonably withheld or delayed. Title to
all such modifications, alterations and/or additions shall be and remain in the
LESSEE during the Term hereof and any extensions thereof, but shall revert to
LESSOR at the end of the Term, or such extensions.
-21-
SECTION 6.06. ACCESS TO PREMISES. LESSOR, its agents and designees, shall
------------------
have the right, but only at reasonable times upon reasonable prior notice to
LESSEE or any authorized employee of LESSEE at the Premises (except in the event
of an emergency), to enter the Premises, other than secured areas where
valuables or confidential documents or information are kept, for the making of
repairs or alterations which LESSOR shall be required to or shall have the right
to make under this Lease. LESSOR shall be allowed to take such material into
and upon the Premises that may be reasonably required for repairs and
alterations without the same constituting an eviction of LESSEE in whole or in
part and the Rent reserved shall xxxxx equitably while said repairs or
alterations are being made in the event that such repairs or alterations
interfere with LESSEE's operations from the Premises for more than two (2) days.
LESSOR shall use reasonable efforts to minimize any disturbance to LESSEE's
occupancy and business operations. LESSOR shall be responsible for the safety
of all such work. LESSEE shall have the right to approve all persons who may
enter the Premises on behalf of LESSOR or any management company retained by
LESSOR (including without limitation the right to perform background checks on
such persons). In the event that the cost to LESSOR of any management company
shall materially increase as a result of LESSEE's disapproval of such persons,
LESSEE shall bear such increased costs.
-22-
ARTICLE VII
COMPLIANCE WITH LAWS: LIENS AND ENCUMBRANCES
---------------------------------------------
SECTION 7.01. COMPLIANCE WITH LAWS. LESSEE shall, at LESSEE'S sole cost
--------------------
and expense, and subject to all of the provisions of this Section 7.01, promptly
comply in all material respects with any and all present and future laws,
ordinances, rules, regulations, directives and standards of all federal, state,
county and municipal governments and all departments and agencies thereof having
jurisdiction over the Premises relating to LESSEE'S use and occupancy thereof
("laws"), including but not limited to, the making of all changes to the
Premises which now or hereafter may be required in order to comply with the
foregoing; and LESSEE acknowledges its responsibility to comply with and hereby
agrees to comply with as to the Premises only Chapter One of the City of Atlanta
Building Code, 1983, as amended through December 22, 1989, requiring the
installation of automatic sprinkler protection in certain instances. In the
event that such requirement to comply with such laws occurs at any time during
the final two (2) years of the Term, Lessee shall only be responsible for
payment of its prorata share of the costs of such compliance based on the
remaining term of this Lease multiplied by the quotient obtained by dividing the
total costs of such compliance by the anticipated useful life of the changes to
the Premises.
SECTION 7.02. LIENS AND ENCUMBRANCES. Subject to the provisions of Section
----------------------
11.01 hereof (concerning Permitted Contests) and the provisions of Section 10.01
hereof (permitting mortgaging of LESSEE'S leasehold estate), LESSEE shall not
create or permit to be created or to remain, and, shall promptly discharge or
remove or otherwise render ineffective by payment or posting of a surety bond,
or otherwise, within thirty (30) days after notice by LESSOR, at its
-23-
sole cost and expense, any lien, encumbrance or charge (each or all of which are
herein referred to as "Lien") upon the Premises and/or the cafeteria, or any
part thereof or upon LESSEE'S leasehold estate hereunder that arises from the
use or occupancy of the Premises and/or the cafeteria by LESSEE or by reason of
any labor, service or material furnished or claimed to have been furnished to
LESSEE or by reason of any construction, repair or demolition by LESSEE. Notice
is hereby given that LESSOR shall not be liable for the cost and expense of any
labor, services or material furnished or to be furnished with respect to the
Premises and/or the cafeteria at or by the direction of LESSEE or anyone holding
the Premises and/or the cafeteria or any part thereof by, through or under
LESSEE and that no laborer's, mechanic's or materialman's or other lien for any
such labor, services or materials shall attach to or affect the interest of
LESSOR in and to the Premises and/or the cafeteria. Nothing in this Lease
contained shall be deemed or construed in any way as constituting the consent or
request of LESSOR, express or implied, by inference or otherwise, to any
contractor, subcontractor, laborer or materialman for the performance of any
labor or the furnishing of any materials for any specific improvements or repair
to or of the Premises and/or the cafeteria or any part thereof, nor as giving
LESSEE any right, power or authority on behalf of LESSOR to contract for or
permit the rendering of any services or the furnishing of any materials that
would give rise to the filing of any lien against the Premises and/or the
cafeteria or any part thereof. If LESSEE fails to discharge, remove or otherwise
render ineffective by payment, posting of a surety bond, or otherwise, any Lien
as hereinabove provided, LESSOR, without declaring a default hereunder and
without relieving LESSEE of any liability hereunder, may, but shall not be
obligated to, discharge or pay the same, either by paying the amount claimed to
be due or by procuring the discharge of such Lien by
-24-
deposit or by bonding proceedings, and any amount so paid by LESSOR and all
costs and expenses incurred by LESSOR in connection therewith shall constitute
Additional Rental hereunder and shall be paid by LESSEE to LESSOR on demand with
Interest thereon. For the purposes of this Section 7.02, LESSEE's obligations
with respect to the cafeteria shall only be effective so long as LESSEE is a
user of the cafeteria.
ARTICLE VIII
INDEMNIFICATION
---------------
SECTION 8.01. INDEMNIFICATION BY LESSEE. LESSEE covenants and agrees to
-------------------------
pay, defend, and save harmless LESSOR from and against any and all liability,
loss, damage, causes of action, suits, claims, demands or judgments of any
nature whatsoever (a) arising from any injury to or the death of any person or
damage to any property occurring on the Premises during the Term of this Lease
(except for those matters covered pursuant to Section 8.02(a) below), or (b) in
any manner arising out of or connected with the use, non-use, condition,
possession, operation, maintenance, management or occupation of the Premises or
any part thereof during the Term of this Lease or any extensions thereof, (c)
any negligence on the part of the LESSEE or its agents, contractors, servants,
employees, licensees or invitees, (d) resulting from the violation by LESSEE of
any term, condition or covenant of this Lease or of any contract, agreement or
restriction created by, through or under LESSEE which affects the Premises, or
any regulation affecting the Premises or any part thereof applicable to LESSEE
during the Term of this Lease or the occupancy or use thereof by LESSEE during
the Term of this Lease, or (e) any use by LESSEE or its agents, contractors,
servants, employees, licensees or invitees of the
-25-
parking garage under the Premises and/or the cafeteria in the buildings in front
of the Premises and/or the Common Facilities; provided, however, that the
indemnification provided hereunder shall not apply to any liability, loss,
damage or expense resulting from the negligence or willful misconduct of LESSOR,
its officers, employees, servants, licensees, invitees, agents or contractors.
LESSEE, at its sole cost and expense, shall defend LESSOR against such causes of
action, suits, claims, and demands and be responsible for such judgments as to
which LESSOR is indemnified. Should LESSOR elect to participate in any defense
it may do so only at LESSOR'S sole cost and expense. Promptly upon receipt by
LESSOR of any summons, complaints, lawsuit, charge or process in which there
shall be asserted any causes of action, suits, claims or demands against which
LESSOR is indemnified in this Section 8.01, LESSOR shall promptly cause the same
to be transmitted and delivered to LESSEE. LESSOR shall cooperate with LESSEE in
the defense of any such cause of action, suit, claim or demand. Written notice
of the assertion against LESSOR of any such cause of action, suit, claim or
demand shall be delivered by LESSOR to LESSEE promptly after LESSOR receives
knowledge thereof. The obligations of LESSEE under this 8.01 shall survive any
termination of this Lease and any transfer or assignment by LESSOR or LESSEE of
this Lease or any interest hereunder.
SECTION 8.02. INDEMNIFICATION BY LESSOR. LESSOR covenants and agrees to
-------------------------
pay, defend, indemnify and save harmless LESSEE from and against any and all
liability, loss, damage, cost, expense (including all attorneys' fees and
expenses of LESSEE), causes of action, suits, claims, demands or judgments of
any nature whatsoever (a) arising from any injury to or the death of any person
or damage to any property occurring on the Land (or the Premises) caused by
LESSOR or its agents, contractors, servants, employees, licensees or invitees or
in any
-26-
manner arising out of or connected with the use, non-use, condition, possession,
operation, maintenance, management or occupation of the Land or any part thereof
exclusive of the Premises, (b) any negligence on the part of the LESSOR or its
agents, contractors, servants, employees, licensees or invitees, or resulting
from the violation by LESSOR of any term, condition or covenant of this Lease or
of any contract, agreement, restriction, or regulation affecting the Land or the
Premises or any part thereof or the ownership, occupancy or use thereof.
Promptly upon receipt by LESSEE of any summons, complaints, lawsuit, charge or
process in which there shall be asserted any causes of action, suits, claims or
demands against which LESSEE is indemnified in this Section 8.02, LESSEE shall
promptly cause the same to be transmitted and delivered to LESSOR. LESSEE shall
cooperate with LESSOR in the defense of any such cause of action, suit, claim or
demand. Written notice of the assertion against LESSEE of any such cause of
action, suit, claim or demand shall be delivered by LESSEE to LESSOR promptly
after LESSEE receives knowledge thereof. The obligations of LESSOR under this
8.02 shall survive any termination of this Lease and any transfer or assignment
by LESSOR or LESSEE of this Lease or any interest hereunder.
ARTICLE IX
SURRENDER
---------
SECTION 9.01. SURRENDER. Upon any termination of this Lease, LESSEE shall
---------
peaceably quit and surrender the Premises to LESSOR, and any and all machinery
and equipment constructed, installed or placed by LESSEE thereon, excepting
Trade Fixtures, inventory, merchandise and other personalty owned by LESSEE.
Lessee may remove all confidential
-27-
information and trade secrets and in the event LESSEE is not then in default
under this Lease, beyond any applicable grace or cure periods herein provided,
LESSEE shall have the right upon a termination or expiration of this Lease to
remove from the Premises all Trade Fixtures and other personal property and
equipment used in LESSEE'S business, as distinguished from machinery and
equipment used in and necessary to the operation of the Premises. Any Trade
Fixtures or other machinery and equipment not removed by LESSEE on or before
termination or expiration of this Lease shall become the property of LESSOR.
LESSEE shall leave the Premises in a "broom clean" condition.
SECTION 9.02. REMOVAL. LESSEE, at its sole cost and expense, and upon
-------
LESSOR'S written request therefor delivered sixty (60) days prior to any
termination or expiration, shall remove on or before termination or expiration
all or any Trade Fixtures from the Premises. LESSEE, at its sole cost and
expense, shall repair any damage caused thereby to the Premises.
ARTICLE X
ASSIGNMENT AND SUBLETTING
-------------------------
SECTION 10.01. LESSEE'S ASSIGNMENT. LESSEE shall have the right to assign
-------------------
this Lease or its leasehold interest in the Premises, or any part thereof, and
shall be entitled to sublease any portion of the Premises (whether such
assignment or subleasing occurs by operation of law or otherwise) without the
prior consent of Lessor; provided, however, no assignment or subleasing by
LESSEE shall relieve the LESSEE of its obligations under this Lease. LESSEE
agrees to cause any assignee to execute and deliver to LESSOR an agreement, in
form and substance reasonably satisfactory to LESSOR, pursuant to which such
assignee agrees to assume
-28-
and to discharge all the obligations of LESSEE under this Lease, without,
however, relieving LESSEE of any such obligations. LESSEE shall have the right
to mortgage, grant security title to or a security interest in the leasehold
estate created hereby, or to collaterally assign its interest in the Lease, to
any lender or debt holder of LESSEE; provided, however, no such mortgaging,
granting security title to or security interest in or collateral assignment
shall encumber LESSOR'S interest in the Lease or in the Premises, it being the
parties' specific intent that LESSOR shall not be required to subordinate its
fee interest or its interest in this LEASE to LESSEE'S lender.
SECTION 10.02. LESSOR'S ASSIGNMENT. Except as prohibited in this Section
-------------------
below, LESSOR shall be permitted to assign this lease or any of his interest
herein, to any assignee, without the necessity of any consent by LESSEE.
Notwithstanding the foregoing, without the prior written consent of LESSEE,
which may be arbitrarily denied, LESSOR shall not assign this Lease or any of
LESSOR'S interests herein or lease all or any portion of the other buildings on
the Land or consent to the subleasing of such buildings to any "LESSEE
Competitor". A "LESSEE Competitor" shall mean (i) each person or entity whose
name appears on the most recently revised Competitor List which has been sent to
LESSOR prior to the commencement by LESSOR of negotiations for such sale or
assignment or lease or prior to LESSOR being requested to approve any such
sublease and (ii) all affiliates of such person or entity. Attached hereto as
Exhibit "E" is the current list (the "Competitor List") of LESSEE's competitors.
-----------
LESSEE shall have the right to update the Competitor List no more often than
once every twelve (12) months during the Term. In updating the Competitor List,
Lessee may add thereto any person or entity that at the time of such updating is
engaged, directly or indirectly, within any
-29-
of the fifty (50) states of the Xxxxxx Xxxxxx, Xxxxxxxx xx Xxxxxxxx, Xxxxxx
Xxxx, Xxxxxx or the United Kingdom, (a) in the business of consumer credit
reporting, collection of consumer debt or obligations, consumer check credit
clearance or guarantee, consumer marketing studies or surveys, consumer reports
for life or property and casualty insurers, automation of data for use by
insurers or providers in the health care industry, design or implementation of
alliances for delivery of health care services, or (b) in any other business in
which LESSEE or its affiliates shall then be engaged, if the revenues from such
other business comprised as much as two percent (2%) of the revenue of LESSEE or
its affiliates realized throughout the preceding four (4) fiscal quarters of
LESSEE, on a consolidated basis, and if the revenues of such proposed assignee,
realized throughout its preceding four (4) fiscal quarters derived from such
other competing business or businesses, on a consolidated basis, were as much as
twenty percent (20%) of the gross revenues of such proposed assignee during such
fiscal period, on a consolidated basis.
ARTICLE XI
RIGHT TO CONTEST
----------------
SECTION 11.01. PERMITTED CONTESTS. LESSEE, at its expense, may contest by
------------------
appropriate legal proceedings conducted in good faith and with due diligence the
amount, validity or application, in whole or in part, of any Tax or Charge
referred to in 5.01 and 5.02 hereof, the application of any laws referred to in
Section 7.01 any Lien referred to in 7.02 hereof; provided that (a) LESSEE shall
give LESSOR prior written notice of such contest, (b) LESSEE shall first make
all contested payments (under protest if it desires) unless such proceeding
shall suspend the
-30-
collection thereof from LESSOR and from Rent under this Lease or from the
Premises, (c) no part of the Premises or any interest therein or the Rent under
this Lease shall be subjected thereby to sale, forfeiture, foreclosure or
interference, (d) LESSOR shall not be subject to any civil or criminal liability
for failure to comply with any governmental regulation and the Premises shall
not be subject to the imposition of any Lien as a result of such failure other
than the lien then being contested. LESSEE agrees that it shall pay, and save
LESSOR harmless from and against, any and all losses, judgments, decrees and
costs (including all reasonable attorneys' fees and expenses) in connection with
any Permitted Contest and that, promptly after the final determination of every
Permitted Contest, LESSEE shall fully pay and discharge the amounts which shall
be levied, assessed, charged or imposed or be determined to be payable therein,
together with all penalties, fines, interests, costs and expenses resulting
therefrom and will promptly comply with any regulation of any governmental body
or agency having jurisdiction under which compliance is required.
ARTICLE XII
INSURANCE
---------
SECTION 12.01. LESSEE'S INSURANCE. LESSEE covenants and agrees that,
---------------------------------
except as permitted in Section 12.05 hereof, LESSEE will carry and maintain, at
its sole cost and expense, the following types of insurance, in the amounts and
in form hereinafter required:
(i) Liability insurance in the Commercial General Liability form (or
reasonable equivalent thereto) covering the Premises and the cafeteria (so long
as LESSEE is a user of the cafeteria) and LESSEE'S use thereof against claims
for personal injury or death and property
-31-
damage occurring upon, in or about the Premises and the cafeteria, such
insurance to be written on an occurrence basis if commercially available at a
reasonable cost (not a claims made basis), with a Combined Single Limits amounts
not less than One Million Dollars ($1,000,000.00) aggregate per occurrence and
not less than Two Million Dollars ($2,000,000.00) for each policy year
specifically at this location. If LESSEE cannot obtain such insurance on an
occurrence basis at a reasonable cost, LESSEE may maintain such insurance on a
"claims made" basis, provided that (a) LESSEE gives LESSOR prior written notice
of the change in insurance and (b) LESSEE provides LESSOR with evidence that
LESSEE has, to the satisfaction of LESSOR, insured the "gap" in insurance
coverage which resulted from converting to a claims made basis of insurance.
LESSEE shall also maintain an "umbrella" policy insuring the risks insured under
the Commercial General Liability policy in an amount not less than Thirty
Million Dollars ($30,000,000.00) for each policy year.
(ii) worker's compensation insurance covering LESSEE'S employees and
those of its subsidiaries and affiliates to the extent necessary to protect
LESSOR, the Premises and the cafeteria against workmen's compensation claims.
(iii) insurance on LESSEE's furnishings, fixtures, equipment, Trade
Fixtures and other personal property in such amounts as LESSEE may reasonably
determine.
SECTION 12.02. LESSOR'S INSURANCE. LESSOR covenants and agrees that LESSOR
------------------
will carry and maintain, at its sole cost and expense, but subject to partial
reimbursement as herein provided, the following types of insurance, in the
amounts and in the form hereinafter required:
-32-
(A) insurance on the "All-Risk" or equivalent form on a Replacement
Cost Basis against loss or damage to the all improvements except tenant
improvements made after January 1, 1998 now or hereafter located on the Premises
and the Land; and in an amount sufficient to prevent LESSOR or LESSEE from
becoming a co-insurer of any loss, but in any event in amounts not less than 90%
of the actual cost to replace the improvements with improvements which are
sufficient for continued use and occupancy by LESSEE and the other tenants
thereof at least comparable to such use and occupancy as it existed immediately
prior to the loss or damage, including utilities and amenities at least
comparable to those repaired or replaced. For the purpose of determining actual
cost of such replacement, it is agreed that currently such cost shall be deemed
$100.00 per square foot of finished and usable space, which amount will be used
to compute the required coverage amount of the initial insurance. Required
policy amounts of renewal policies shall be the same as the initial policy,
increased or decreased annually by the percentage change reflected in the R. S.
Means Square Foot Cost Index for Atlanta, Georgia published by X. X. Xxxxx
Company from its index as of twelve (12) months earlier; provided, however, that
if prior to a renewal date, LESSOR obtains an appraisal of such actual cost of
replacement by a qualified independent real property appraiser setting forth a
lesser then current cost of replacement, such lesser cost of replacement shall
be the policy amount for the renewal period and subsequent periods, subject to
adjustment by the aforesaid Index.
(B) boiler and machinery insurance covering losses to or from any
steam boilers, pressure vessels or similar apparatus requiring inspection under
applicable state or municipal laws or regulations which are located at the
Premises or the buildings on the Land or on any other building systems for which
such coverage is commercially available at reasonable
-33-
rates, in the amount equal to the replacement costs of the boiler and machinery
and having a deductible of not more than Ten Thousand Dollars ($10,000.00);
coverage shall be on a broad form comprehensive basis; provided, however, that
the foregoing limits shall only be effective in the event that the insurance
maintained by LESSOR pursuant to Section 12.02(A) shall insure damage to other
property that results from accidents involving the boiler and machinery, and in
the event that such coverage is not available, then the amount of coverage shall
be Fifty Million Dollars ($50,000,000.00) with a deductible of not more than Two
Million Dollars ($2,000,000.00); and
(C) Liability insurance in the Commercial General Liability form (or
reasonable equivalent thereto) covering the Land and the Premises and LESSOR's
use thereof against claims for personal injury or death and property damage
occurring upon, in or about the Premises, such insurance to be written on an
occurrence basis if commercially available at a reasonable cost (not a claims
made basis), with a combined single limits amounts not less than One Million
Dollars ($1,000,000.00) per occurrence and not less than Two Million Dollars
($2,000,000.00) in the aggregate for each policy year. LESSOR shall also
maintain an "umbrella" policy insuring the risks insured under the Commercial
General Liability policy in an amount not less than Thirty Million Dollars
($30,000,000.00) for each policy year.
SECTION 12.03. POLICIES. All policies of the insurance provided for in
--------
Section 12.01 and Section 12.02 shall be issued in form acceptable to the
Insurance Commissioner of the State of Georgia by responsible insurance
companies licensed to do business in the State of Georgia. Each and every such
insurance policy with the exception of the workers' compensation policy:
-34-
(i) shall name the other party, and any mortgagee of other party if
requested in writing by such mortgagee as an additional designated insured as
their interest may appear;
(ii) shall be described as to coverage and amounts in a certificate of
insurance from the appropriate insurance carrier delivered to other party prior
to the commencement of this Lease. Renewal certificates shall be procured by
each party and delivered to the other party within thirty (30) days prior to
the expiration of such policies, describing coverage and amounts applicable
under this Lease and as reflected in such policies;
(iii) shall contain a provision that the insurer will give to
LESSOR and LESSEE and such other parties in interest at least ten (10) days
notice in writing in advance of cancellation for non-payment of premiums; and
(iv) shall be written as a primary policy which does not contribute to
and is not in excess of coverage which the other party may carry.
(c) Any insurance provided for in Section 12.01 and/or Section 12.02 may be
maintained by means of a policy or policies of blanket insurance, covering
additional items or locations or insureds, provided, however, that LESSOR and
LESSEE and any other parties in interest as designated in this Lease shall be
named as an additional insured thereunder as their interests may appear, and the
requirements set forth in Section 12.01 and Section 12.02 are otherwise
satisfied.
SECTION 12.04. FAILURE TO CARRY. Except as permitted in Section 12.06
----------------
hereof, in the event that either party shall fail to carry and maintain the
insurance coverages set forth in this Section 12.01 or Section 12.02, the other
party may upon thirty (30) days notice to the other party (unless such coverages
will lapse in which event no such notice shall be necessary) procure
-35-
such policies of insurance and the party obligated to carry the insurance shall
promptly reimburse the other party therefor.
SECTION 12.05. INSURANCE REVIEW. Each party may, at any time, but not more
----------------
than one (1) time in any twelve (12) month period, require a review of the
insurance coverage and limits of liability set forth in Section 12.01 and
Section 12.02 to determine whether the coverage and the limits are reasonable
and adequate in the then existing circumstances. The review shall be undertaken
on a date and at a time set forth in a party's notice requesting a review and
shall be conducted at the Premises. If the parties are, after a review, unable
to agree on either the coverage or the limits, then the parties shall arbitrate
the issue through the American Arbitration Association, or its then successor.
In rendering the decision the arbitrators shall consider the requirements of
Section 12.01, and/or Section 12.02, the cost of the insurance to be obtained,
inflation, changes in condition, and the insurance then being carried by similar
developments in the area of the Premises.
SECTION 12.06. SELF INSURANCE. LESSEE may become a "self insurer" of the
--------------
first Ten Million Dollars ($10,000,000.00) of risks insured pursuant to clause
12.01(i) so long as LESSEE maintains the umbrella insurance required by clause
12.01(i) and LESSEE may become a "self insurer" of the first Ten Million Dollars
($10,000,000.00) of the risks insured pursuant to clause 12.01(ii).
SECTION 12.07. LESSEE'S INSURANCE REIMBURSEMENT. LESSEE shall reimburse
--------------------------------
LESSOR for LESSEE'S prorata share of the premium cost of the insurance carried
by LESSOR on the Premises pursuant to Section 12.02 which prorata share shall be
determined by multiplying such premium cost by a fraction, the denominator of
which is the number of square
-36-
feet in all buildings insured under such insurance, including the building in
which the Premises is located and the numerator of which is the number of square
feet in the Premises and the product so obtained will be LESSEE'S prorata share
and will be paid within thirty (30) days of the dated billed by LESSOR to
LESSEE. As of the date hereof, such prorata share is as specified in 5.01.
SECTION 12.08. MUTUAL RELEASE/WAIVER OF SUBROGATION. LESSOR and LESSEE,
------------------------------------
for themselves and any insurer claiming through or under them by way of
subrogation or otherwise, each hereby releases the other from any and all
liability or responsibility for any loss, injury or damage to the Premises or
other improvements on the Land, or its contents, caused by fire or any other
property casualty, during the term of this Lease, even if such fire or casualty
may have been caused by the negligence of the other party or one for whom such
party may be responsible. Inasmuch as the above mutual waivers will preclude the
assignment of any aforesaid claim by way of subrogation (or otherwise) to an
insurance company (or any other person), each party hereto hereby agrees if
required by said policies to give each insurance company which has issued to it
policies of fire and extended coverage insurance, and other insurance, written
notice of the terms of said mutual waivers, and to have said insurance policies
properly endorsed, if necessary, to prevent the invalidation of said insurance
coverage by reason of said waivers.
-37-
ARTICLE XIII
FIRE AND OTHER CASUALTIES
-------------------------
SECTION 13.01. DAMAGE. If the building in which the Premises is located
------
and/or the parking garage or other Common Facilities shall be damaged or
destroyed by fire or other casualty, LESSOR, at LESSOR'S sole cost and expense,
shall promptly and diligently proceed to adjust the loss with the insurance
companies and arrange for the disbursement of insurance proceeds, and repair,
rebuild or replace such buildings, the parking garage or other Common
Facilities, and other improvements, so as to restore the Premises building
and/or the parking garage and other improvements to the condition in which they
were immediately prior to such damage or destruction to the extent reasonably
practical. The net proceeds of any insurance recovered by reason of such damage
or destruction in excess of the cost of adjusting the insurance claim and
collecting the insurance proceeds (such excess being referred to herein as the
"Net Insurance Proceeds") shall, if such Net Insurance Proceeds exceeds Five
Million and No/Dollars ($5,000,000.00), be held by the LESSOR'S mortgagee
(provided that such Mortgagee is a bank, savings association, insurance company
or other similar institutional lender having capital surplus and undivided
profits of at least $50,000,000.00; herein called "Institutional Lender"), or,
if no Institutional Lender then holds a mortgage lien, or deed to secure debt on
the building , by any escrow agent which is reasonably acceptable to LESSOR and
LESSEE; and the Net Insurance Proceeds shall be released for the purpose of
paying the fair and reasonable cost of restoring such building, garage and other
improvements. Such Net Insurance Proceeds shall be released to LESSOR, or to
LESSOR'S contractors, from time to
-38-
time as the work progresses, pursuant to such requirements and limitations as
may be reasonably acceptable to LESSEE, LESSOR and LESSOR'S mortgagee (if the
mortgagee so requires), including, without limitation, lien waivers from each of
the contractors, subcontractors, materialmen and suppliers performing the work.
If the Net Insurance Proceeds (less any applicable deductible) are insufficient
to restore the Premises the parking garage and other improvements, LESSOR shall
be obligated to pay such deficiency and the amount of any such deductible.
If the Net Insurance Proceeds are less than Five Million Dollars
($5,000,000.00), such Net Insurance Proceeds may be held by LESSOR and used by
LESSOR to pay the fair and reasonable cost of restoring such building and other
improvements.
If the Net Insurance Proceeds (regardless of the amount thereof) exceed the
full cost of the repair, rebuilding or replacement of the damaged building or
other improvements, then the amount of such excess Net Insurance Proceeds shall
be paid to LESSOR or retained by the insurance carrier upon the completion of
such repair, rebuilding or replacement. Rent shall xxxxx proportionally during
restoration. In the event that, in the opinion of an architect retained by
LESSEE and acceptable to LESSOR, the Premises cannot be restored within 180 days
of commencement of restoration, then LESSEE may, by written notice to LESSOR
delivered prior to the commencement of restoration, terminate this Lease.
SECTION 13.02. PLANS. Whenever LESSOR shall be required to carry out any
-----
work or repair and restoration pursuant to Section 13.01, if the estimated cost
of repair and restoration exceeds $5,000,000.00, LESSOR, prior to the
commencement of such work, shall deliver to LESSEE for LESSEE'S prior approval
(which shall not be unreasonably withheld or delayed) a
-39-
full set of the plans and specifications therefor, together with a copy of all
approvals and permits which shall be required from any Governmental Authority
having jurisdiction. After completion of any major repair or restoration, LESSOR
shall, as soon as reasonably possible, obtain and deliver to LESSEE a
Certificate of Substantial Completion from LESSOR'S inspecting architect or
engineer and a permanent Certificate of Occupancy (or amended Certificate of
Occupancy), if required by applicable laws, issued by the appropriate authority
with respect to the use of the Premises, as thus repaired and restored. Any such
work or repair and restoration, in all cases, shall be carried out by LESSOR in
a good and workmanlike manner with first quality materials. LESSEE shall be
entitled to withdraw monies held pursuant to Section 13.01 for application to
the costs of such work from time to time as such costs are incurred.
SECTION 13.03. RIGHT TO TERMINATE. In the event that the property loss,
------------------
fire or other casualty which materially and substantially damages the Premises
occurs during the last two (2) years of the Term, LESSOR and LESSEE shall each
have the option, exercisable by written notice to the other delivered within
thirty (30) days of such fire or casualty, to terminate this Lease and LESSOR
shall thereby be relieved of the obligation to make the restorations required by
Section 13.01.
SECTION 13.04. DAMAGE TO OTHER BUILDINGS. In the event that the buildings
--------------------------
on the Land, other than the building in which the Premises is located, are
damaged or destroyed by fire or other casualty, LESSOR will either promptly
repair and restore the same or, provided utility and other building services to
be provided to the Premises are not affected, raze such damaged or destroyed
buildings and landscape the ground formerly occupied thereby.
-40-
ARTICLE XIV
CONDEMNATION
------------
SECTION 14.01. TOTAL CONDEMNATION. If all of the Premises or such a
------------------
material portion of the Premises that the remaining portion is not usable by
LESSEE for its intended purpose is condemned or taken by the United States or
any other legal entity having the power of eminent domain with respect thereto,
this Lease shall terminate as of the date that title to the Premises or portion
thereof vests in the condemnor; provided, however, that such termination shall
not benefit the condemnor and shall be without prejudice to the rights of either
LESSOR or LESSEE to recover just and adequate compensation from the condemning
authority. Upon such termination pursuant to this 14.01, all Rent and other
amounts payable hereunder shall be apportioned and shall be paid up to and
including the date of such termination, and any excess prepaid Rent or other
amounts shall be promptly refunded to LESSEE.
SECTION 14.02. PARTIAL CONDEMNATION. If a portion of the Premises is
--------------------
condemned or taken by the United States or any other legal entity having the
power of eminent domain with respect thereto, and the part of the Premises
remaining is usable by LESSEE for its intended purpose then this Lease shall
remain in full force and effect and LESSOR, to the extent of any award to LESSOR
is sufficient therefor, shall forthwith cause the Premises (including, without
limitation, any tenant improvements and alterations) to be restored to as nearly
the same condition as existed prior to such taking. Monthly Rent shall be
reduced through March 31, 2004 by .7762% of the amount of the condemnation award
paid to LESSOR because of such taking and not applied to restoration, and
thereafter Monthly Rent shall be reduced equitably to
-41-
the extent LESSEE's use and occupancy is affected thereby. During any period of
restoration, the Rent and other amounts payable hereunder shall xxxxx equitably
to the extent LESSEE's use of the Premises is affected thereby.
SECTION 14.03. AWARDS. The court in any condemnation proceeding shall, if
------
not prohibited by law, be requested to make separate awards to LESSOR and
LESSEE. LESSOR and LESSEE agree to request such action of the court. This
Article XIV, to the extent permitted by law, shall be construed as superseding
any statutory provisions now in force or hereafter enacted concerning
condemnation proceedings. In the event that the court in such proceeding shall
not make separate awards, LESSEE shall be entitled to receive from LESSOR such
amount which represents compensation for moving expenses incurred by LESSEE, any
costs incurred and paid by LESSEE from and after January 1, 1998 in connection
with any alteration or improvement made by LESSEE to the Premises and the value
of any of LESSEE's property so taken, and for interruption of business.
SECTION 14.04. GENERAL. Nothing contained in this Lease to the contrary
-------
shall be deemed to prohibit LESSOR or LESSEE from introducing into any
condemnation proceeding or proceedings with respect to the Premises such
appraisals or other estimates of value, loss and/or damage as each may in its
discretion determine.
SECTION 14.05. PARKING. For the purpose of this Article XIV, the taking or
-------
condemnation of a material part of the garage and open spaces available for
vehicular parking or a loss of access to the Premises from Peachtree Street or
the means of access to the Premises or the entrances or lobbies of the Premises
described on Exhibit "G" hereto shall be deemed to render the remaining portion
-----------
of the Premises unusable for LESSEE'S intended purpose unless LESSOR
-42-
shall provide to LESSEE parking spaces equivalent both as to covered and outside
parking to those condemned or taken and at a location reasonably accessible to
the Premises or reasonably equivalent access to the Premises, as applicable. For
the purposes hereof, a loss of access to the Premises from Peachtree Street
shall be deemed to have occurred only if LESSEE is denied permanent use of both
of the existing driveways on the Land providing access to Peachtree Street.
SECTION 14.06. TEMPORARY TAKING. If all or any part of the Premises shall
----------------
be temporarily taken, this Lease shall nevertheless remain in full force and
effect, and the Rent and other amounts payable hereunder shall not xxxxx.
LESSEE shall continue to be responsible for all of its obligations hereunder to
the extent that such obligations are not materially affected by such taking.
All awards for any such temporary taking payable for any period prior to the
expiration of the Lease shall be paid to LESSEE and for periods after expiration
of the Lease to LESSOR.
ARTICLE XV
DEFAULT
-------
SECTION 15.01. LESSEE EVENTS OF DEFAULT. The occurrence of any of the
------------------------
following acts, events or conditions, regardless of the pendency of any
proceeding which has or might have the effect of preventing LESSEE from
complying with the terms, conditions or covenants of this Lease, shall
constitute an "Event of Default" under this Lease:
(a) LESSEE fails to make any payment of Rent or Additional Rental
within ten (10) days of the date LESSEE received from LESSOR written
notice of such failure to pay; or
-43-
(b) LESSEE fails or refuses to fulfill or perform any other
covenant, agreement or obligation of LESSEE hereunder and such failure
or refusal shall continue for a period of thirty (30) consecutive
calendar days from and after the date upon which LESSEE receives from
LESSOR written notice of such default unless correction is commenced
within such period and thereafter diligently pursued; or
(c) The estate or interest of LESSEE in the Premises, or any portion
thereof, or in this Lease is levied upon or attached in any proceedings
and such process is not vacated, discharged or bonded over within thirty
(30) days after the date of such levy or attachment; or
(d) There is any entry of a decree or order for relief by a court
having jurisdiction in the Premises in respect of LESSEE in an
involuntary case under the federal bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or appointing a receiver, liquidator,
assignee, custodian, trustee, sequestrator (or similar official) of
LESSEE or for any substantial part of its property, or ordering the
winding-up or liquidation of its affairs and the continuance of any such
decree or order unstayed and in effect for a period of sixty (60)
consecutive days; or
(e) There is commencement by LESSEE of a voluntary case under the
federal bankruptcy laws, as now constituted or hereafter amended, or any
other applicable federal or state bankruptcy, insolvency or other
similar law, or the consent by it to the appointment of or taking
possession by a receiver, liquidator,
-44-
assignee, trustee, custodian, sequestrator (or other similar official)
of LESSEE or for any substantial part of its property, or the making by
it of any assignment for the benefit of creditors, or the failure of
LESSEE generally to pay its debts as such debts become due, or the
taking of corporate action by LESSEE in furtherance of any of the
foregoing.
SECTION 15.02. TERMINATION. Upon the occurrence of any Event of Default
-----------
hereunder, LESSOR shall have the right, at its election and regardless of the
availability to LESSOR of any other remedy under this Lease or by law or in
equity provided, to give LESSEE (then or at any time thereafter while any such
Event of Default exists or continues) written notice of the termination of this
Lease as of the date specified in such notice of termination, which date shall
be not less than ten (10) days after the date of the giving of such notice. On
such termination date this Lease and the Term and estate herein granted shall,
subject to the provisions of 15.05 hereof, expire and terminate by limitation,
and all rights of LESSEE under this Lease shall expire and terminate, unless
prior to such termination date LESSEE pays to LESSOR all arrears of Rent and
Additional Rental payable by LESSEE under this Lease (together with Interest
thereon) and all costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses) incurred by or on behalf of LESSOR by reason of
any Event of Default and fully cures and corrects any Event of Default then
existing hereunder to the satisfaction of LESSOR.
SECTION 15.03. REENTRY BY LESSOR. Whether or not this Lease has been
-----------------
terminated pursuant to 15.02 hereof, if an Event of Default occurs, LESSOR may,
for and on behalf of LESSEE and as LESSEE'S legal representative, enter upon and
repossess the Premises or any part thereof by force, summary proceedings,
ejectment or otherwise, and may dispossess LESSEE
-45-
and remove LESSEE and all other persons and any and all property therefrom.
LESSOR shall not be liable to LESSEE or to any person or entity claiming by,
through or under LESSEE for or by reason of any such entry, repossession or
removal.
SECTION 15.04. RIGHTS UPON REPOSSESSION. At any time or from time to time
------------------------
after the repossession of the Premises or any part thereof pursuant to 15.03
hereof, and whether or not this Lease shall have been terminated pursuant to
15.02 hereof, LESSOR may at its option (a) repair or alter the Premises in such
manner as LESSOR may deem necessary or advisable so as to put the Premises in
good order and make the same rentable, and (b) relet or operate the Premises or
any part thereof for the account of LESSEE for such term or terms (which may be
greater or less than the period which would otherwise have constituted the
remainder of the Term) on such conditions (which may include concessions or free
rent) and for such uses as LESSOR in its discretion may determine, and may
collect and receive the rents therefor. All costs and expenses incurred by
LESSOR in the exercise of its right to reenter and to relet the Premises, or any
part thereof, including, without limitation, reasonable attorneys' fees,
construction and alteration costs, brokerage fees and all such similar and
dissimilar expenses, shall be charged to LESSEE and shall be and become the due
obligation of LESSEE to pay LESSOR, as Additional Rental, hereunder. All rental
and other sums collected by LESSOR during any period of reletting of the
Premises shall be and remain the property of LESSOR and the total collected
amount thereof, to the extent it exceeds the sum of all costs and expenses
incurred in reletting as aforesaid, is herein defined as the "Reletting
Proceeds" which, to the extent such Reletting Proceeds shall ever exceed all
Rent and Additional Rental due from LESSEE to LESSOR hereunder and provided no
termination has been declared, shall be and belong to LESSEE. LESSOR shall not
be responsible or liable for any
-46-
failure to relet the Premises or any part hereof or for any failure to collect
any rent due upon any such reletting, but LESSOR shall make reasonable efforts
to mitigate LESSOR'S damages. No repossession of the Premises by LESSOR shall be
construed as an election to terminate this Lease and the Term herein demised
unless, in conjunction therewith, a written notice of termination evidencing
such intention is given to LESSEE as provided in 15.02 hereof.
15.05. LIABILITY OF LESSEE. No termination of this Lease pursuant to 15.02
-------------------
hereof or by operation of law or otherwise (except as expressly provided herein)
and no repossession of the Premises or any part thereof pursuant to 15.03 hereof
or otherwise, shall relieve LESSEE of its liability and obligations hereunder,
all of which shall survive such termination or repossession. LESSOR shall be
entitled, at its election, to xxx for and receive each increment of Rent and
Additional Rental as and when the same shall become due, irrespective of whether
LESSOR shall have terminated this Lease or reentered and relet the Premises or
any portion thereof, provided only that in the event of reletting, LESSEE shall
be entitled to a credit for the Reletting Proceeds, if any, up to the amount of
Rent and Additional Rental that would otherwise have been due from LESSEE to
LESSOR hereunder. LESSOR agrees to make reasonable efforts, and to permit
LESSEE to make reasonable efforts to mitigate the liability and obligations of
LESSEE hereunder.
SECTION 15.06. RIGHT OF LESSOR TO PERFORM FOR LESSEE. Notwithstanding any
-------------------------------------
other provision of this Lease to the contrary, upon the occurrence of any Event
of Default hereunder, LESSOR may, at its exclusive option, take, on behalf of
LESSEE, whatever steps it deems reasonably necessary to cure such Event of
Default and to charge LESSEE for the costs and expenses attributable thereto.
LESSEE shall pay all costs and expenses immediately upon receipt
-47-
of a statement thereof from LESSOR. Any such amounts, paid or unpaid, shall be
deemed Additional Rental hereunder.
SECTION 15.07. GENERAL. Each right, power and remedy of LESSOR provided in
-------
this Lease or now or hereafter existing at law or in equity or by statute or
otherwise shall be cumulative and concurrent and shall be in addition to each
and every other right, power or remedy provided in this Lease or now or
hereafter existing at law or in equity or by statute or otherwise. In addition
to any other remedy provided in this Lease, LESSOR shall be entitled, to the
extent permitted by applicable law, to injunctive relief in the event of the
violation or attempted or threatened violation of any term, condition or
covenant of this Lease or to a decree compelling performance thereof. The
exercise by LESSOR of any one or more of the rights, powers or remedies provided
in this Lease or now or hereafter existing at law or in equity or by statute or
otherwise shall not preclude the simultaneous or later exercise by LESSOR of any
such right, power or remedy.
SECTION 15.08. LESSOR DEFAULT. If LESSOR shall be in default in the
--------------
performance of any obligation required to be performed by LESSOR under this
Lease, and such default continues for a period of thirty (30) days following
written notice of such default from LESSEE, then LESSEE may exercise any of its
rights provided at law or in equity, all of which shall be cumulative and
concurrent remedies of LESSEE and shall be in addition to each and every other
right, power and remedy provided to LESSEE and shall be in addition to each and
every other right, power and remedy provided by LESSEE in this Lease or now or
hereinafter existing, at law or in equity, by statute or otherwise, but in no
event shall LESSEE have any right to set off sums owed or claimed to be owed to
LESSEE against Rent. LESSEE agrees that, should LESSOR'S
-48-
mortgagee notify LESSEE in writing of the existence of any such mortgage or deed
to secure debt encumbering the Premises, LESSEE will simultaneously give
LESSOR'S mortgagee any default provided to LESSOR, and LESSOR'S mortgagee may
cure such default (and LESSEE will accept such cure) on behalf of the LESSOR.
ARTICLE XVI
ENVIRONMENTAL MATTERS
---------------------
SECTION 16.01. DEFINITIONS. For purposes of this Article XVI:
---------------------------
(i) "Contamination" as used herein means the uncontained or
uncontrolled presence of or release of Hazardous Substances into any
environmental media and into or on any portion of the Premises or any part
thereof so as to require remediation, cleanup or investigation under any
applicable Environmental Law.
(ii) "Environmental Laws" as used herein means all federal, state, and
local laws, regulations, orders, permits, ordinances, and the like concerning
protection of human health and/or the environment.
(iii) "Hazardous Substances" as used herein means any hazardous or
toxic substance or waste as those terms are defined by any applicable federal or
state law or regulation (including, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. 9601 et. sec.
("CERCLA") and the Resource Conservation and Recovery Act, 42 U.S.C. 6901 et.
sec. ["RCRA"]) and petroleum products and oil.
-49-
SECTION 16.02. COMPLIANCE. LESSEE warrants that all its activities on the
----------
Premises, during the course of this Lease will be conducted in compliance with
Environmental Laws. LESSEE warrants that it and the Premises are, to the best of
LESSEE'S knowledge currently in compliance with all applicable Environmental
Laws and that there are no pending or threatened notices of deficiency, notices
of violation, orders, or judicial or administrative actions involving alleged
violations by LESSEE or the Premises of any Environmental Laws. LESSEE, at
LESSEE'S sole cost and expense, shall be responsible for obtaining all permits
or licenses or approvals under Environmental Laws necessary for LESSEE'S
operation of its business on the Premises and shall make all notifications and
registrations required by any applicable Environmental Laws. LESSEE, at
LESSEE'S sole cost and expense, shall at all times comply with the terms and
conditions of all such permits, licenses, approvals, notifications and
registrations and with any other applicable Environmental Laws. LESSEE warrants
that it has obtained all such permits, licenses or approvals and made all such
notifications and registrations required by any applicable Environmental Laws
necessary for LESSEE'S operation of its business on the Premises.
SECTION 16.03. HAZARDOUS SUBSTANCES. Except in compliance with all laws
--------------------
and/or regulations and the requirements of any insurance carrier insuring the
Premises, LESSEE shall not cause or permit any Hazardous Substances to be
brought upon, kept or used in or about the Premises. Except in compliance with
all laws and/or regulations and the requirements of any insurance carrier
insuring the Premises, LESSEE shall not cause or permit the release of any
Hazardous Substances into any environmental media such as air, water or land, or
into or on the Premises. If such release shall occur during the Term or any
extension thereof, LESSEE shall (i)
-50-
immediately take all necessary steps to contain, control and clean up such
release and any associated Contamination, (ii) notify LESSOR, and (iii) take any
and all other action which may be required by Environmental Laws and/or,
governmental agencies, . LESSEE shall under no circumstances whatsoever (i)
treat, store or dispose of any Hazardous Waste (as all such terms are defined by
RCRA, and the regulations promulgated thereunder) within the Premises, or (ii)
discharge Hazardous Substances into the storm sewer system serving the Premises;
other than as shall be reasonably required in the use and occupancy of the
Premises and then only in full compliance with all laws and/or regulations. If
at any time during the Term, or any extensions thereof any governmental body or
agency requires that the asbestos in the Premises be removed LESSEE shall, at
its sole cost and expense, if required by law or governmental order, remove such
asbestos; but, except for asbestos which, according to governmental laws or
regulations should have been removed prior to the end of the Term, or any
extension thereof, LESSEE shall have no obligation to remove asbestos and LESSOR
shall thereafter be responsible for any removal thereof which may be required.
SECTION 16.04. INDEMNITY OF LESSEE. LESSEE shall and hereby does
-------------------
indemnify LESSOR and hold LESSOR harmless from and against any and all expense,
loss, and liability suffered by LESSOR (with the exception of those expenses,
losses, and liabilities arising from LESSOR'S own negligence or willful act), by
reason of LESSEE'S improper storage, generation, handling, treatment,
transportation, disposal, or arrangement for transportation or disposal, of any
Hazardous Substances (whether accidental, intentional, or negligent) or by
reason of LESSEE'S breach of any warranty or of the provisions of this Article
XVI. Such expenses, losses and liabilities shall include, without limitation,
(i) any and all expenses that LESSOR may incur to
-51-
comply with any Environmental Laws as a result of LESSEE'S failure to comply
therewith; (ii) any and all costs that LESSOR may incur in studying or remedying
any Contamination at or arising from the Premises to the extent such remedying
is required by applicable law, (iii) any and all costs that LESSOR may incur in
studying, removing, disposing or otherwise addressing any Hazardous Substances
that LESSEE improperly stored, generated, handled, treated, transported or
disposed of or failed to remove from the Premises to the extent the same is
required by applicable law; (iv) any and all fines, penalties or other sanctions
assessed upon LESSOR by reason of LESSEE'S failure to comply with Environmental
Laws; and (v) any and all legal and professional fees and costs incurred by
LESSOR in connection with the foregoing. The indemnity contained herein shall
survive the termination or expiration of this Lease but only with regard to
conditions or provisions which LESSEE is obligated by this Lease to prevent,
correct, or comply with during the Term of this Lease and any extensions
thereof.
SECTION 16.05. INDEMNITY OF LESSOR. LESSOR shall and hereby does
-------------------
indemnify LESSEE and hold LESSEE harmless from and against any and all expense,
loss, and liability suffered by LESSEE (with the exception of those expenses,
losses, and liabilities arising from LESSEE'S own negligence or willful act), by
reason of the improper storage, generation, handling, treatment, transportation,
disposal, or arrangement for transportation or disposal, of any Hazardous
Substances (whether accidental, intentional, or negligent) or by reason of the
violation of any Environmental Law by LESSOR or its agents, but excluding those
matters pursuant to which LESSEE has indemnified LESSOR pursuant to Section
16.04 above. Such expenses, losses and liabilities shall include, without
limitation, (i) any and all expenses that LESSEE may incur to comply with any
Environmental Laws as a result of LESSOR'S or its agent's failure to
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comply therewith; (ii) any and all costs that LESSEE may incur in studying or
remedying any Contamination at or arising from the Land to the extent such
remedying is required by applicable law, (iii) any and all costs that LESSEE may
incur in studying, removing, disposing or otherwise addressing any Hazardous
Substances that LESSOR or its agents improperly stored, generated, handled,
treated, transported or disposed of or failed to remove from the Premises to the
extent the same is required by applicable law; (iv) any and all fines, penalties
or other sanctions assessed upon LESSEE by reason of LESSOR or its agent's
failure to comply with Environmental Laws; and (v) any and all legal and
professional fees and costs incurred by LESSEE in connection with the foregoing.
The indemnity contained herein shall survive the termination or expiration of
this Lease.
ARTICLE XVII
BROKERAGE PROVISIONS
--------------------
SECTION 17.01. NO BROKER. LESSOR and LESSEE represent and warrant that no
---------
broker, commission agent, real estate agent or salesman has participated in the
negotiation of this Lease, its procurement or in the procurement of LESSOR or
LESSEE except for Xxxxx Xxxxxxxx Properties, L.L.C. and CRE Services, L.L.C.,
who will be paid by LESSOR under a separate agreement and that no such person,
firm or corporation is or shall be entitled to the payment of any fee,
commission, compensation or other form of remuneration in connection herewith in
any manner. LESSOR and LESSEE shall and do hereby mutually indemnify and hold
harmless each other from and against any and all loss, cost, claim, damage or
expense (including court costs and reasonable attorneys' fees) arising from and
out of or in any manner connected with this Lease or
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any claim (meritorious or otherwise), demand or assertion which is in the nature
of a brokerage fee, commission or other compensation for services rendered. The
terms of this 17.01 shall survive any termination of this Lease.
ARTICLE XVIII
MISCELLANEOUS
-------------
SECTION 18.01. LESSOR LIABILITY. No owner of the Premises, whether or not
----------------
named herein, shall have liability hereunder after such owner ceases to hold
title to the Premises, except for obligations which may have theretofore
accrued. Neither LESSOR nor any officer, director, shareholder, partner or
principal, whether disclosed or undisclosed, of LESSOR shall be under any
personal liability with respect to any of the provisions of this Lease, and if
LESSOR is in breach or default with respect to LESSOR'S obligations or otherwise
under this Lease, LESSEE shall look solely to the equity of LESSOR in the
Premises and the Land and improvements thereon and the amount of any casualty or
condemnation proceeds paid to LESSOR for the satisfaction of LESSEE'S remedies.
It is expressly understood and agreed that LESSOR'S liability under the terms,
covenants, conditions, warranties and obligations of this Lease shall in no
event exceed the loss of LESSOR'S equity interest in the Premises and the Land
and improvements thereon and the amount of any casualty or condemnation proceeds
paid to LESSOR which are not applied as required by this Lease. Notwithstanding
anything in this Section 18.01 to the contrary, in no event shall the amount of
LESSOR'S equity in the Land and the improvements thereon be less than One
Million Dollars ($1,000,000.00).
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SECTION 18.02. WAIVER. Failure of LESSOR to insist upon the strict
------
performance by LESSEE of any term, condition or covenant on LESSEE'S part to be
performed pursuant to the terms of this Lease or to exercise any option, right,
power, or remedy of LESSOR contained in this Lease shall not be deemed to be nor
be construed as a waiver of such performance or relinquishment of such right now
or subsequent hereto. The receipt by LESSOR of any Rent or Additional Rental
required to be paid by LESSEE hereunder with knowledge of any default by LESSEE
hereunder shall not be deemed a waiver of such default. No waiver by LESSOR of
any provision of this Lease shall be deemed to have been made unless expressed
in writing and signed by LESSOR.
SECTION 18.03. WAIVER OF REDEMPTION. LESSEE hereby waives and surrenders
--------------------
any right or privilege under any present or future constitution, statute or law
to redeem the Premises or to continue this Lease after the termination of this
Lease for any reason, and the benefits of any present or future constitution,
statute or rule of law which exempts property from liability for debt or for
distress for rent.
SECTION 18.04. ESTOPPEL CERTIFICATES. Upon written request of LESSOR, but
---------------------
no more frequently than once in any twelve (12) month period, LESSEE shall from
time to time execute, acknowledge and deliver to LESSOR and to any mortgagee of
or prospective purchaser from LESSOR, a written certificate certifying (a) that
this Lease is unmodified and in full force and effect (or if there have been
modifications, that the Lease is in full force and effect as modified, and
stating the modifications), (b) the dates to which Rent and Additional Rental
payable by LESSEE hereunder have been paid, and (c) that no notice has been
received by LESSEE of any
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default by LESSEE hereunder which has not been cured, except as to any default
specified in said certificate.
Upon written request of LESSEE, but no more frequently than once in any
twelve (12) month period, LESSOR shall from time to time execute, acknowledge
and deliver to LESSEE a written certificate certifying (d) that this Lease is
unmodified and in full force and effect (or if there have been modifications,
that this Lease is in full force and effect as modified, and stating the
modifications), (e) the dates to which Rent and Additional Rental payable by
LESSEE hereunder have been paid, and (f) whether or not, to the knowledge of
LESSOR, there is then existing a default by LESSEE under this Lease (and if so,
specifying the same).
SECTION 18.05. NO MERGER OF TITLE. There shall be no merger of the
------------------
leasehold estate created by this Lease with the fee estate of LESSOR by reason
of the fact that the same person may own or hold both the leasehold estate
created by this Lease or any interest therein and the fee estate in the Premises
or any interest therein; and no such merger shall occur unless and until all
persons or entities (including any mortgagee with respect to the fee estate of
LESSOR) having any interest in the leasehold estate created by this Lease or the
fee estate in the Premises shall join in a written instrument effecting such
merger and shall duly record the same.
SECTION 18.06. MORTGAGEE'S RIGHTS. Subject to all the provisions of this
------------------
Section 18.06, this Lease may be either superior or subordinate to any
"Mortgage". The term "Mortgage", as used in this Lease, shall mean any and all
mortgages, deeds to secure debt, deeds of trust, or other instruments creating a
lien or conveying a security title at any time and from time to time, granted by
LESSOR and affecting or encumbering the title of LESSOR to the Premises or this
Lease. The term "Mortgagee" refers to the holder of the Mortgage. Any Mortgagee
may elect to have
-56-
this Lease superior to its Mortgage by signifying such election in the Mortgage
or by separate recorded instrument. Upon request by any Mortgagee, LESSEE shall
execute and deliver a written instrument, in a form acceptable for recording in
the real estate records of Xxxxxx County, Georgia, recognizing that this Lease
is superior to a Mortgage and that, upon foreclosure of or exercise of the power
of sale contained in the Mortgage, LESSEE shall recognize and attorn to the
purchaser at the foreclosure sale as the LESSOR under this Lease, subject to all
the terms and provisions of this Lease. If a Mortgage is subordinate to this
Lease, any person who becomes the holder of the interest of the LESSOR by virtue
of foreclosure of the Mortgage shall be subject to and bound by all the
provisions of this Lease. If a Mortgagee desires for this Lease to be
subordinate to its Mortgage, LESSEE agrees that it shall subordinate this Lease
by execution and delivery of the Subordination, Non-Disturbance and Attornment
Agreement attached to this Lease as Exhibit "F" and by this reference made a
----------
part hereof; provided, however, that such Agreement must be fully executed by
all parties thereto and properly recorded in the real estate records of Xxxxxx
County, Georgia, such delivery being a condition precedent to LESSEE'S agreement
to subordinate. Such Subordination, Non-Disturbance and Attornment Agreement
shall provide any insurance proceeds shall be applied as set forth herein.
SECTION 18.07. SEPARABILITY. Each and every covenant and agreement
------------
contained in this Lease shall be for any and all purposes hereof construed as
separate and independent and the breach of any covenant by LESSOR shall not
discharge or relieve LESSEE from its obligation to perform each and every
covenant and agreement to be performed by LESSEE under this Lease. All rights,
powers and remedies provided herein may be exercised only to the extent that the
exercise thereof does not violate applicable law and shall be limited to the
extent necessary to
-57-
render this Lease valid and enforceable. If any term, provision or covenant of
this Lease or the application thereof to any person or circumstance shall be
held to be invalid, illegal or unenforceable, by a court of last resort having
jurisdiction in the premises, the validity of the remainder of this Lease shall
not be affected; this Lease shall not terminate, and there shall be substituted
for such illegal, invalid or unenforceable provision a like provision which is
legal, valid and enforceable within the limits established by such court's final
opinion and which most nearly accomplishes and reflects the original intention
of the parties.
SECTION 18.08. NOTICES, DEMANDS AND OTHER INSTRUMENTS. All notices,
--------------------------------------
demands, requests, consents, and approvals desired, necessary, required or
permitted to be given pursuant to the terms of this Lease shall be in writing
and shall be deemed to have been properly given if personally delivered or sent,
postage prepaid, by first class registered or certified United States mail,
return receipt requested, addressed to each party hereto at the following
address:
LESSOR: 1600 Peachtree, L.L.C.
c/o Brogdon Consulting, Inc.
0000 Xxxx Xxxxxxxxx
Xxxxx 0XX
Xxxxxx, Xxxxxxx 00000
LESSEE: Equifax Inc.
0000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
Attention: General Counsel
with a copy to: Equifax Inc.
0000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxx, Xxxxxxx 00000
Attention: Director of Corporate Real Estate
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with a copy to: Xxxxxxx X. Xxxxxxx, Esq.
Long Xxxxxxxx & Xxxxxx LLP
5300 SunTrust Tower
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
or at such other address in the United States as LESSOR or LESSEE may from time
to time designate by like notice. Any such notice, demand, request or other
communication shall be considered given or delivered, as the case may be, on the
date of personal delivery or on the date of deposit in the United States mail as
provided above. Rejection or other refusal to accept or inability to deliver
because of changed address of which no notice was given shall be deemed to be
receipt of the notice, demand, request or other communication.
SECTION 18.09. SUCCESSORS AND ASSIGNS. Each and every covenant, term,
----------------------
condition and obligation contained in this Lease shall apply to and be binding
upon and inure to the benefit or detriment of the respective legal
representatives, heirs, successors and assigns of LESSOR and LESSEE. Whenever
reference to the parties hereto is made in this Lease, such reference shall be
deemed to include the legal representatives, successors, heirs and assigns of
said party the same as if in each case expressed. The term "person" when used
in this Lease shall mean any individual, corporation, partnership, firm, trust,
joint venture, business association, syndicate, government or governmental
organization or any other entity.
SECTION 18.10. HEADINGS. The headings to the various Articles and
--------
Sections of this Lease have been inserted for purposes of reference only and
shall not limit or define or otherwise affect the express terms and provisions
of this Lease.
SECTION 18.11. COUNTERPARTS. This Lease may be executed in any number of
------------
counterparts, each of which is an original, but all of which shall constitute
one instrument.
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SECTION 18.12. APPLICABLE LAW. This Lease shall be construed under and
--------------
enforced in accordance with the laws of the State of Georgia.
SECTION 18.13. ENTIRE AGREEMENT; AMENDMENTS. This Lease and the Lease
----------------------------
Termination Agreement dated of even date and each of the documents referred to
therein set forth the entire understanding and agreement of LESSOR and LESSEE
with respect to the Premises; all courses of dealing, usage of trade and all
prior representations, promises, understandings and agreements, whether oral or
written, are superseded by and merged into this Lease. No modification or
amendment of this Lease shall be binding upon LESSOR and LESSEE, or either of
them, unless in writing and fully executed.
SECTION 18.14. ALL GENDERS AND NUMBERS INCLUDED. Whenever the singular or
--------------------------------
plural number, or masculine, feminine, or neuter gender is used in this Lease,
it shall equally apply to, extend to, and include the other.
SECTION 18.15. TIME IS OF ESSENCE. Time is of the essence of this Lease.
------------------
Whenever a day certain is provided for the payment of any sum of money or the
performance of any act or thing, the same enters into and becomes a part of the
consideration for this Lease.
SECTION 18.16. SHORT FORM LEASE. LESSOR and LESSEE hereby agree that this
----------------
Lease shall not be recorded in the public records of Xxxxxx County, Georgia.
LESSOR and LESSEE shall, contemporaneously with the execution hereof, execute a
Short Form Lease in the form attached hereto as Exhibit "D". The Short Form
-----------
Lease shall be filed for record with the Clerk of the Superior Court of Xxxxxx
County, Georgia. Any and all recording cost and tax, if any, required in
connection with the recording of the Short Form Lease shall be at the sole cost
and expense of LESSEE.
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SECTION 18.17. WAIVER OF LIEN. Except as provided in this Section 18.17,
--------------
LESSOR does hereby waive any and all lien or claim of lien against LESSEE and
the property of LESSEE located on the Premises, arising from this Lease or the
relationship of LESSOR and LESSEE (including, without limitation, any lien
created pursuant to O.C.G.A. Section 44-14-341); provided, however, that except
as hereinafter provided, such waiver shall not extend to the tangible personal
property of LESSEE located on the Premises. Notwithstanding the foregoing, in
no event shall any such lien or claim of lien extend to any computers, computer
systems (including hardware, software and firmware), all data (including
proprietary data) stored on such systems, intellectual property, trade secrets,
confidential information and other proprietary information of LESSEE.
SECTION 18.18. EXPANSION. Subject to the terms and conditions set forth
---------
herein, LESSEE shall have the option from time to time to lease the space
located on the second and third floors of the building located immediately in
front of the building in which the Premises is located (such building being
hereinafter referred to as "Building B"), but excluding the space currently
utilized as the cafeteria (such expansion space is hereinafter referred to as
the "Additional Space") upon the same terms and conditions as this Lease except
that the term thereof must end, at LESSEE's option, either on March 31, 2004 or
the date upon which the Term of this Lease expires. LESSOR shall provide LESSEE
with (a) a copy of any letter of intent that is executed with any prospective
tenant of the Additional Space (or if no such letter of intent is executed by
LESSOR, then a copy of the proposed draft of the lease for such space) or (b) a
copy of a negotiated letter of intent with a prospective tenant of the
Additional Space with terms that appear to be acceptable to such prospective
tenant, together in any event with a notice
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stating that such notice is delivered pursuant to this Section 18.18. LESSEE
shall notify LESSOR, in writing, within ten (10) days of receipt of such notice
that LESSEE elects to lease the Additional Space. LESSEE's failure to timely
respond in writing shall constitute a waiver of LESSEE's option to lease such
space. In the event that LESSOR fails to execute a lease for the Additional
Space with such prospective tenant within one hundred twenty (120) days of
receipt of such notice by LESSEE, then LESSEE's option shall be reinstated with
respect to the Additional Space. In the event that LESSEE elects to lease any
Additional Space, LESSEE and LESSOR shall execute and deliver an amendment to
the Lease increasing the number of square feet constituting the Premises by the
amount of the Additional Space, and otherwise subjecting the Additional Space to
the same terms and conditions of the Lease as currently in effect, including but
not limited to a provision providing that Rent for the Additional Space shall be
the same rent per square foot as currently in effect under the Lease (as the
same may be increased as provided in the Lease). Rent payment for any Additional
Space shall begin upon the first to occur of (a) occupancy of such Additional
Space by LESSEE for the purposes of conducting business or (b) 90 days after the
exercise by LESSEE of the expansion option. In the event that LESSOR notifies
LESSEE of its intention to lease the Additional Space within Building B as
provided in this Section 18.18, and the third and fourth floors of the building
located immediately in front of Building B (such building is hereinafter
referred to as "Building A") is unleased, and the LESSEE elects not to take the
Additional Space within Building B, then for the purposes hereof the Additional
Space shall thereafter mean the third and fourth floors of Building A.
Notwithstanding anything herein to the contrary, in the event that the space to
be leased to a prospective tenant constitutes all of Building A and Building B,
then in order to exercise the expansion option
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granted herein, LESSEE must elect to lease all of such space, or in the event
that the space to be leased to any prospective tenant constitutes all of the
Additional Space and any other space within Building A or Building B, then in
order or exercise the expansion option granted herein, LESSEE must elect to
lease all of such space which such prospective tenant proposes to lease.
IN WITNESS WHEREOF, LESSOR and LESSEE have executed this Lease, have
affixed their seals hereunto and have delivered same, all in duplicate (or
triplicate) original, at Atlanta, Georgia as of the day and year first above
written.
"LESSOR"
1600 Peachtree, L.L.C.
By: Gwinnett Xxxxx, X.X., a Manager and Member
By: Xxxxx Manager, Inc., its sole general
partner
By: /s/ D. Xxxxx Xxxxxxx, Xx.
-----------------------------
D. Xxxxx Xxxxxxx, Xx.
President
[CORPORATE SEAL]
By: /s/ Xxxxxx X. Xxxxxxx [SEAL]
----------------------------------
Xxxxxx X. Xxxxxxx
A Manager and Member
"LESSEE"
EQUIFAX INC.
By: ______________________________________
Name:____________________________
Title:_________________________________
[CORPORATE SEAL]
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EXHIBITS
--------
Exhibit "A" Description of Premises
Exhibit "B" Permitted Encumbrances
Exhibit "C" Building Standard Services
Exhibit "D" Short Form Lease
Exhibit "E" Competitor List
Exhibit "F" Subordination, Non-Disturbance and Attornment Agreement
Exhibit "G" Description of Access Area
Exhibit "H" Current Cafeteria Equipment
Exhibit "I" Legal Description of Land
EXHIBIT "A"
-----------
DESCRIPTION OF PREMISES
EXHIBIT "B"
-----------
PERMITTED TITLE EXCEPTIONS
EXHIBIT "C"
-----------
BUILDING STANDARD SERVICES
LESSOR shall furnish the following services to LESSEE during the period
required by Section 5.02 of the Lease (the "Building Standard Services"):
(a) Hot and cold domestic water and common-use rest rooms and sinks and
toilets at locations provided for general use as reasonably deemed by LESSOR to
be in keeping with the existing standards of the Premises.
(b) Central heat and air conditioning in season, at such temperatures and
in such amounts as are reasonably deemed by LESSOR to be in keeping with the
first-class standards of the Premises. Such heating and air conditioning shall
be furnished 24 hours a day, seven days a week, 52 weeks per year.
(c) Electric lighting service for all public areas and special service
areas of the Premises and Common Facilities in the manner and to the extent
reasonably deemed by LESSOR to be in keeping with the first-class standards of
the Premises.
(d) Janitor service shall be provided seven (7) days per week, after
midnight, in a manner that LESSOR reasonably deems to be consistent with the
first-class standards of the Premises. (See Schedule 1 hereto) In addition,
----------
the carpet shall be cleaned once each year of the lease Term.
(e) Security services for the Premises comparable as to coverage, control
and responsiveness (but not necessarily as to means for accomplishing same) to
the level provided as of the commencement of the Term; provided, however, LESSOR
shall have no responsibility to prevent, and shall not be liable to LESSEE for,
any liability or loss to LESSEE, its agents, employees and visitors arising out
of losses due to theft, burglary, damage or injury to persons or property caused
by persons gaining access to the Premises, and LESSEE hereby releases LESSOR
from all liability for such losses, damages or injury. [One additional security
guard will be on duty from 5:30 p.m. to 12:00 midnight, 7 days per week, 52
weeks per year.]
(f) Sufficient electrical capacity to operate (i) incandescent lights,
typewriters, calculating machines, photocopying machines and other machines of
the same low voltage electrical consumption (120/208 volts), provided that the
total rated electrical design load for said lighting and machines of low
electrical voltage shall not exceed 3 xxxxx per square foot of rentable area;
and (ii) lighting (277/480 volts), provided that the total rated electrical
design load for said lighting shall not exceed 2 xxxxx per square foot of
rentable area (each such rated electrical design load to be hereinafter referred
to as the "Building Standard Rated Electrical Design Load"). LESSOR acknowledges
that LESSEE will have the use of the electrical outlets beyond the standard
Building Operating Hours.
Should LESSEE's total rated electrical design load exceed the building
Standard Rated Electrical Design Load for either low or high voltage electrical
consumption, or if LESSEE's electrical design requires low voltage or high
voltage electrical consumption, or if LESSEE's electrical design requires low
voltage or high voltage circuits in excess of LESSEE's share of the Building
Standard circuits, LESSOR will (at LESSEE's expense) install such additional
circuits and associated high voltage panels and/or additional low voltage panels
with associated transformers (which additional circuits, panels and transformers
shall be hereinafter referred to as the "Additional Electrical Equipment"). If
the Additional Electrical Equipment is installed because LESSEE's low or high
voltage rated electrical design load exceeds the applicable Building Standard
Rated Electrical Design Load, then a meter shall also be added (at LESSEE's
expense) to measure the electricity used through the Additional Electrical
Equipment.
The design and installation of any Additional Electrical Equipment (or any
related meter) required by LESSEE shall be subject to the prior approval of
LESSOR (which approval shall not be unreasonably withheld). All expenses
incurred by LESSOR in connection with the review and approval of any Additional
Electrical Equipment shall also be reimbursed to LESSOR by LESSEE. LESSEE shall
also pay on demand the actual metered cost of electricity consumed through the
Additional Electrical Equipment (if applicable), plus any actual accounting
expenses incurred by LESSOR in connection with the metering thereof.
If any of LESSEE's electrical equipment required conditioned air in excess
of Building Standard air conditioning, the same shall be installed by LESSOR (on
LESSEE's behalf), and LESSEE shall pay all design, installation, metering and
operating costs relating thereto.
If LESSEE requires that certain areas within LESSEE's Demised Premises must
operate in excess of the normal Business Operating Hours, 8:00 a.m. to 6:00
p.m., Monday through Fridays (the "Standard Building Operating Hours"), the
electrical service to such areas shall be separately circuited and metered (at
LESSEE's expense) or separately calculated, such that LESSEE shall be billed the
costs associated with electricity consumed during hours other than Building
Operating Hours.
All normal electrical Building Standard Services will be available to
LESSEE 24 hours a day, seven days a week, 52 weeks a year.
(g) All Building Standard fluorescent bulb replacement in all areas and all
incandescent bulb replacement in public areas, toilet and restroom areas and
stairwells.
EXHIBIT "D"
-----------
SHORT FORM LEASE
EXHIBIT "E"
-----------
COMPETITOR LIST
All of the following and their respective directly owned subsidiaries:
TRW Information Services, Inc. (and TRW, Inc., its parent)
TransUnion (TU)
Computer Sciences Corporation (CSC)
Dun & Bradstreet (D&B)
First Financial Management Corp. (FFMC), (includes Telecheck NABANCO)
EDS (and General Motors Corp., its parent)
Total Systems Services, Inc.
First Data Resources (FDR)
Policy Management Systems Corp. (PMSC)
Xxxxxx Xxxxxx
Xxxxxxxxx
National Processing Co. (NPC)
Deluxe Check Printers (including SCAN)
Fair, Xxxxx & Co.
National Data Corp.
CYCARE, Inc.
ENVOY
DATEQ
Continuum
Creditel
EMSI
PAYCO American Corp.
Olsten's Temporary
CCN (and Great Universal Stores, its parent)
Xxxxxxx, PLC
Next PLC
EXHIBIT "F"
-----------
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
EXHIBIT "G"
-----------
DESCRIPTION OF ACCESS AREA
EXHIBIT "H"
-----------
CURRENT CAFETERIA EQUIPMENT
EXHIBIT "I"
-----------
LEGAL DESCRIPTION OF LAND
