Sample Contracts - GA-Atlanta-Six Concourse Parkway Lease - Concourse VI Associates and America's Favorite Chicken Co.

Sample Business Contracts

LEASE AGREEMENT CONCOURSE THIS LEASE AGREEMENT (the "Lease"), made this 31st day of December, 1992, by and between CONCOURSE VI ASSOCIATES ("Landlord"), a Georgia general partnership which has as its address for all purposes hereunder as follows: Concourse VI Associates c/o The Landmarks Group General Corporation Six Concourse Parkway Suite 400 Atlanta, Georgia 30328-5351 and America's Favorite Chicken Company, a corporation of the State of Minnesota ("Tenant"), which has as its address: Six Concourse Parkway Suite 1700 Atlanta, Georgia 30328-5351 [Prior to occupancy of the Premises:] Two Concourse Parkway Suite 600 Atlanta, Georgia 30328-5347 Attention: Legal Counsel WITNESSETH: ---------- 1. PREMISES AND TERM ----------------- (a) Landlord hereby rents and leases to Tenant, and Tenant hereby rents and leases from Landlord, the following described space (the "Premises"): Floor: 16th, 17th and 18th floors Suite: 1700 Square Feet: 76,614 rentable square feet See Special Stipulation #2 and #3 --------------------------------- located at the herein called "Building": Building: Corporate Center Six Address: Six Concourse Parkway Fulton County, Georgia Total Building Rentable Area: 697,400 (b) The Premises are more particularly shown and outlined on the space plans attached hereto as Exhibit "B", and made a part hereof, and are ----------- located in that portion of the Building shown on Exhibit "A", attached hereto ----------- and by this reference incorporated herein. The term of this Lease (the "Term") shall commence, subject to the provisions of Paragraph 4 herein, on the date as determined in Special Stipulation #4, (the "Commencement Date"), and end at ---------------------- midnight ten (10) years thereafter, unless sooner terminated as <PAGE> herein provided. See Special Stipulation #5. This Lease shall be effective and -------------------------- enforceable upon its execution and delivery, whether such execution and delivery occurs on, prior to, or after the Commencement Date. (c) "Lease Year" as used herein shall mean (i) each and every twelve (12) month period during the Term of this Lease, or (ii) in the event of Lease expiration or termination, the period between the last twelve (12) month period and said expiration or termination. The first such twelve (12) month period shall commence on the Commencement Date. (d) The Building and the land upon which said Building is located, more particularly described on Exhibit "E", attached hereto and by this ----------- reference incorporated herein, is herein referred to as the "Property". (e) The Premises shall include the appurtenant right to use, in common with others, public lobbies, entrances, stairs, corridors, elevators, and other public portions of the Building. All the windows and outside walls of the Premises, and any space in the Premises used for shafts, pipes, conduits, ducts, telephone ducts and equipment, electric or other utilities, sinks or other Building facilities, and the use thereof and access thereto through the Premises for the purposes of operation, maintenance, inspection, display and repairs are hereby reserved to Landlord. No easement for light, air or view is granted or implied hereunder, and the reduction or elimination of Tenant's light, air or view will not affect this Lease. (f) In addition to the Premises described in Paragraph 1(a) herein, Landlord hereby rents and leases to Tenant, and Tenant hereby rents and leases from Landlord, two thousand seven hundred twenty-one (2721) square feet of basement space in the Building (the "Storage Space"), as more particularly shown on Exhibit "A" attached hereto, upon the same terms and conditions as contained ----------- in the Lease, except as follows: (i) the monthly rental for the Storage Space shall be Two Thousand Two Hundred Sixty-Seven and 50/100 Dollars ($2,267.50) (based on Ten and No/100 Dollars ($10.00) per square foot per annum, and adjusted on the basis of the exact number of square feet within and a part of the Storage Space). Monthly rental on the Storage Space shall be escalated at the time of any Renewal Term by the same percentage increase or decrease (as applicable) as the Monthly Rental is increased or decreased for such Renewal Term, when comparing the Market Rate established for the Renewal Term in question and the Monthly Rental (i) at the beginning of the Term (for the first Renewal Term), and (ii) at the beginning of the first Renewal Term (for the second Renewal Term). Tenant may, however, at Tenant's option and in Tenant's sole discretion, elect not to lease the Storage Space for a Renewal Term, after the monthly rental for the Storage Space any such Renewal Term is established under this Paragraph. Tenant shall make such election by giving notice to Landlord within thirty (30) <PAGE> days after the decision on the Market Rate has been made, so that Tenant and Landlord can determine what the monthly rental would be for the Storage Space. (ii) Tenant shall not be obligated to pay "Operating Costs" (as that term is herein defined) with respect to the Storage Space, and the monthly rental due from Tenant for such Storage Space shall not be increased throughout the initial Term. (iii) Tenant may use the Storage Space only as a storage area and people may not be assigned to work therein on a full time basis. (iv) Landlord shall provide only the following services to the Storage ---- Space: A) electricity; B) elevator access; and C) janitor service for common areas. (v) The Storage Space shall not be included in determining the number of parking spaces Landlord must provide to Tenant. (vi) The Storage Space shall be built out for Tenant's use with a Building standard door and hardware, lighting, concrete floor, electrical receptacles (as currently located within said area) and demising walls. Except for these items, Tenant shall accept such Storage Space on an "as is, where is" basis, and no other work or improvements shall be required from Landlord for such Storage Space. Tenant, however, shall have the right to improve such area with such improvements as are consistent with space which is used for storage but not for general use or habitation by employees. Such improvements shall be subject to Landlord's consent, such consent not to be unreasonably withheld or delayed, and shall generally be subject to the terms and conditions of Paragraph 7 herein. 2. RENT ---- (a) Tenant shall pay to Landlord at the address of Landlord indicated herein, or at such other place Landlord reason-ably designates without demand, deduction or setoff, an annual rental for the first year of the Term as set forth in Special Stipulation #1, due and payable in equal monthly installments ---------------------- (the "Monthly Rental") in advance on the first (1st) day of each calendar month during the Term. The Monthly Rental for the first Lease Year is $111,090.30 (the "Initial Monthly Rental"). (b) If the Term commences or terminates at any time other than the last day of a month, the amount of Rent due from Tenant shall be proportionately adjusted based on that portion of the month that this Lease is in effect. <PAGE> (c) The term "Rent", as used herein, shall mean Monthly Rental, "Tenant's Share" of "Operating Costs" (as those terms are defined herein) and any other amounts due of Tenant hereunder. 3. REIMBURSEMENT FOR INCREASES IN OPERATING EXPENSES AND TAXES ----------------------------------------------------------- (a) Tenant hereby covenants and agrees and shall be obligated to pay to Landlord, in addition to and not in lieu of the other amounts specified herein, Tenant's Share of the "Operating Costs," as hereinafter defined, of repairing, maintaining, and operating the Building and Property. These payments shall be in addition to and not in lieu of any other payments due from Tenant hereunder. The "Initial Operating Costs" shall be $7.40 per rentable square foot per annum. See Special Stipulation #12. --------------------------- (b) The term "Operating Costs" shall mean all operating expenses of the Property and Building, computed on an accrual basis and including all reasonable expenses, costs, and disbursements of every kind and nature, which Landlord (i) shall pay; and/or (ii) become obligated to pay during the Term, exclusive of reimbursements, rebates or credits actually received by Landlord including, but not limited to, the following: (i) Wages and salaries of all employees engaged in the operation and maintenance of the Property and Building, including, but not limited to, taxes, insurance and benefits relating thereto, and to the extent that any employee of the Building performs services for any other buildings, then only the portion of such party's compensation which is reasonably allocable to services with respect to the Building shall be included hereunder; (ii) All supplies and materials used in the operation and maintenance of the Property and Building; (iii) Cost of water, sewage, electricity and other utilities furnished in connection with the operation of the Building; (iv) Cost of all service agreements and maintenance for the Property and Building and the equipment therein, including, but not limited to, trash removal, security services, alarm services, window cleaning, janitorial service, HVAC maintenance, elevator maintenance, and grounds maintenance; (v) Cost of all insurance relating to the Property and Building including, but not limited to, the cost of casualty and liability insurance applicable to the Property and Building and Landlord's personal property used in connection therewith; (vi) All taxes (ad valorem and otherwise), assessments, and governmental charges whether federal, state, county, or municipal, and whether by taxing districts <PAGE> or authorities presently taxing the Property and Building or by others, subsequently created or otherwise, and any other taxes (other than federal and state income taxes), and assessments attributable to the Property and Building or its operation and any reasonable consultants fees incurred with respect to issues or concerns involving the taxes or the Building, the Property, or both; (vii) Cost of repairs and general maintenance of the interior and exterior of the Property and Building (including, but not limited to, glass breakage), parking areas, and landscaping; (viii) A management fee for general operation and management of the Property and Building, such management fee to be consistent with the management fee paid for the management of other first-class office buildings in the area of the Building; (ix) An amortization cost due to any capital expenditures incurred (i) which have the effect of reducing or limiting Operating Costs of the Property and Building, if such reduction or limitation inures to Tenant's benefit (but only to the extent and in the amount that such Operating Costs of the Property and Building are reduced), or (ii) which may be required by governmental authority or by Landlord's insurance carrier (but expressly excluding any such costs incurred in connection with a reconstruction or renovation of the Building following casualty or condemnation; (x) all assessments made, charged, levied, assessed or accrued against Landlord by The Concourse Office Park Association, Inc. Excluded from "Operating Costs" are those items set forth in Special Stipulation ------------------- # 12(b). ------- (c) The term "Tenant's Share" shall mean the proportion that the Square Feet in the Premises bears to ninety-five percent (95%) of the Total Building Rentable Area, or the average percentage of the Total Building Rentable Area actually leased in the Building for any calendar year, if such average is greater than ninety-five percent (95%) of the Total Building Rentable Area. The average shall be determined by adding together the total leased space on the last day of each month during the calendar year in question and dividing by twelve (12). Tenant's Share is used in this Lease to determine the portion of Operating Costs payable by Tenant, on a per square foot per annum basis. Notwithstanding anything to the contrary contained herein, if the Building is not fully occupied during any calendar year, appropriate adjustments shall be made to determine Operating Costs as though the Building had been ninety-five percent (95%) occupied in such calendar year, but Tenant shall not be required to pay more than Tenant's Share of Operating Costs. <PAGE> (d) Tenant shall pay, for the first calendar year in which this Lease is in effect, the Initial Operating Costs. Such payments shall be made in equal monthly installments for the months in such calendar year in which this Lease is in effect, at the same time Monthly Rental is due hereunder. If Tenant's Share of the actual Operating Costs for the calendar year (projected for a full calendar year if the Commencement Date occurs in the year that the Building is first ready for occupancy) in which this Lease commences ("Initial Calendar Year") exceeds the Initial Operating Costs paid by Tenant as herein described projected for a full calendar year, Tenant shall pay Tenant's Share of the Initial Calendar Year's increase in the Operating Costs over the Initial Operating Costs, proportionately to the extent this Lease was in effect during the Initial Calendar Year. Landlord shall, within one hundred twenty (120) days (or as soon thereafter as practical) after the close of the Initial Calendar Year, give Tenant an unaudited statement of such year's actual Operating Costs and a comparison with the Initial Operating Costs, and if an additional amount is due, Tenant shall pay such Additional Rent to Landlord within thirty (30) days of statement receipt. (e) On January 15 of each calendar year after the Initial Calendar Year (or as soon thereafter as practical), Landlord shall provide Tenant with the projected Operating Costs for such current calendar year, and Tenant shall thereafter pay Tenant's Share of projected Operating Costs for operating the Property and Building. Such projected Operating Costs shall be payable in advance on a monthly basis by paying one-twelfth (1/12th) of such amount during each month of such respective calendar year. If Landlord has not furnished Tenant such comparison by January 15, Tenant shall continue to pay on the basis of the prior year's estimate until the month after such comparison is given. Landlord shall, within one hundred twenty (120) days (or as soon thereafter as practical) after each calendar year during the Term provide Tenant an unaudited statement of such year's actual Operating Costs. If actual Operating Costs are greater than projected Operating Costs, Tenant shall pay Landlord, within thirty (30) days of such statement's receipt, Tenant's Share of the difference thereof. If such year's projected Operating Costs are greater than the Actual Operating Costs, Landlord shall credit Tenant, within thirty (30) days of such statement issuance, Tenant's Share of the difference between projected Operating Costs and actual Operating Costs within (30) days after final determination of such figure. (f) If this Lease commences or terminates at any time other than the first day of a calendar year the amount of additional rent due from Tenant shall be proportionately adjusted based on that portion of the year that this Lease was in effect. (g) Within one hundred twenty (120) days of its receipt of the operating statement, Tenant at its sole cost and expense shall have the right to review in Landlord's offices and during normal business hours Landlord's records of Operating Costs. If within such one hundred twenty (120) day period, Tenant does not give notice stating in detail reasonable objections to such Additional Rent calculations, Tenant shall be deemed to have given approval of such calculations. Failure to pay such Additional Rent, unless under protest within said one hundred twenty (120) day period shall <PAGE> constitute a failure to pay a sum when due hereunder. If any component is disputed, Tenant shall be required to pay all Additional Rent due except for that portion of the Additional Rent which has been disputed in a notice to Landlord, and then only that portion of the particular line item in dispute (and not the entire line item) may be withheld by Tenant. (h) Tenant's payments of Operating Costs shall not be deemed payments of base rental under any governmental wage and price controls or analogous governmental actions affecting the amount of Rent which Landlord may charge Tenant for the Premises. 4. DELIVERY OF THE PREMISES ------------------------ See Special Stipulation #4. -------------------------- 5. ACCEPTANCE OF THE PREMISES -------------------------- The taking of possession of Premises by Tenant shall be conclusive evidence that Tenant accepts the same "as is" and that said Premises and the Building were in good and satisfactory condition for the use intended at the time such possession was taken, subject to "punch-list" items which must be remedied after Tenant's acceptance of the Premises. See Special Stipulation ----------------------- #13. --- 6. USE --- Tenant shall use the Premises only for general and executive office purposes generally in accordance with the manner of use by other tenants in the Building. Tenant's use of the Premises shall not violate any ordinance, law or regulation of any governmental body or the "Rules and Regulations" of Landlord (the "Rules") as set forth in Exhibit "D" attached hereto and made a part ----------- hereof, or cause an unreasonable amount of use of any of the services provided in the Building. Tenant shall conduct its business in the manner and according to the generally accepted business principles of the business or profession in which Tenant is engaged. Also See Special Stipulation #3. ------------------------------- 7. TENANT'S CARE OF THE PREMISES ----------------------------- (a) Tenant will maintain the Premises and the fixtures and appurtenances therein in a first-class condition, and will neither commit nor suffer waste or injury thereof. Any repair work and alterations permitted by Landlord in the Premises (i) shall be done at Tenant's sole cost and expense; (ii) shall be done by Landlord's employees or agents or, with Landlord's consent (such consent not to be unreasonably withheld or delayed), by persons requested by Tenant; and (iii) shall first be consented to by Landlord. Tenant shall, at Tenant's expense, but under the direction of Landlord and performed by Landlord's employees or agents, or with Landlord's consent (such consent not to be unreasonably withheld or delayed), by persons requested by Tenant and consented to by Landlord, promptly repair any injury or damage to the Premises or Building caused by the misuse or neglect thereof by Tenant, by Tenant's contractors, sub-contractors, employees, licensees or agents. <PAGE> (b) Tenant will not, without Landlord's prior consent, make alterations, additions or improvements (including, but not limited to, structural alterations, additions or improvements) in or about Premises and will not do anything to or on the Premises which will increase the rate of insurance on the Building or the Property. All alterations, additions or improvements of a permanent nature made or installed by Tenant to the Premises shall become the property of Landlord at the expiration or early termination of this Lease. Landlord reserves the right to require Tenant to remove any improvements or additions made to the Premises (excluding the Tenant Improvements for the Premises initially leased under this Lease) by Tenant and to repair and restore the Premises to their condition prior to such alteration, addition or improvement, reasonable wear and tear, unrepaired casualty and condemnation excepted, unless Landlord has agreed at or prior to the time Tenant requests the right to make such alteration, addition or improvement that such item need not be removed by Tenant at the expiration or early termination of the Term. See --- Special Stipulations #16(b) and #19. ----------------------------------- (c) No later than the last day of the Term, Tenant will remove Tenant's personal property and repair injury done by or in connection with installation or removal of said property and surrender the Premises (together with all keys, access cards or entrance passes to the Premises and/or the Building) in as good a condition at the beginning of the Term, reasonable wear and tear, unrepaired casualty and condemnation excepted. All property of Tenant remaining in the Premises after expiration of the Term shall be deemed conclusively abandoned and may be removed by Landlord, and Tenant shall reimburse Landlord for the cost of removing the same, subject however, to Landlord's right to require Tenant to remove any improvements or additions made to the Premises by Tenant pursuant to the preceding Paragraph. (d) In doing any work on the installation of Tenant's furnishings, fixtures, or equipment in the Premises, (and subject to the terms and conditions of Paragraph 7(a) herein), Tenant will use only contractors or workers consented to by Landlord (such consent not to be unreasonably withheld or delayed) prior to the time such work is commenced, or Tenant's Contractor. Landlord may condition its consent upon its receipt from such contractors or workers of acceptable (i) lien waivers; and (ii) evidence of liability and personal property insurance coverage in amounts and with insurance carriers reasonably satisfactory to Landlord. Tenant shall promptly bond off or remove any lien or claim of lien for material or labor claimed against the Premises or Building, or both, by such contractors or workers if such claim should arise, and hereby indemnifies and holds Landlord harmless from and against any and all loss, cost, damage, expense or liabilities including, but not limited to, attorney's fees, incurred by Landlord, as a result of or in any way related to such claims or liens. (e) All personal property brought into the Premises by Tenant, its employees, licensees and invitees shall be at the sole risk of Tenant, and Landlord shall not be liable for theft thereof or of money deposited therein or for any damages thereto, such theft or damage being the sole responsibility of Tenant, subject to Landlord's security obligations hereunder. <PAGE> 8. SERVICES -------- (a) Landlord shall furnish the following services (the cost of which services shall be reimbursed to Landlord in accordance with Paragraph 3 herein): (i) Elevator service for passenger and delivery needs. (ii) Air conditioning during summer operations and heat during winter operations at temperature levels similar to other first class office buildings in the Atlanta area, but consistent with and subject to all Federal and local energy conservation regulations. (iii) Public restrooms, including the furnishing of soap, paper towels, and toilet tissue and any other sanitary necessities. (iv) Either hot and cold or tempered running water for all restrooms and lavatories. (v) Janitorial service, including sanitizing, dusting, cleaning, mopping, vacuuming, and trash removal, each Monday through Friday, and floor waxing and polishing, window washing, smudge removal and venetian blind cleaning as appropriate. (vi) The replacement of building standard fluorescent lamps and ballasts as needed. (vii) Repairs and maintenance, for maintaining in good order at all times the exterior walls, exterior windows, exterior doors and roof of the Building, public corridors, stairs, elevators, storage rooms, restrooms, the heating, ventilating and air conditioning systems, electrical and plumbing systems of the Building, and the walks, paving and landscaping surrounding the Building. (viii) Grounds care, including the sweeping of walks and parking areas and the maintenance of landscaping in an attractive manner. (ix) General management, including supervision, inspections and management functions. (x) Electricity for the Premises, Building and Property. See Special Stipulation # 8. --------------------------- (b) The services provided in Paragraph 8(a) are predicated on and are in anticipation of the use of the Premises as follows: (i) Services shall be provided for the Building during normal business hours as described in the Rules. (ii) HVAC design is based on sustained outside temperatures being no higher than 95 degrees Fahrenheit and no <PAGE> lower than 14 degrees Fahrenheit with sustained occupancy of the Premises by no more than one person per 150 square feet of floor area and heat generated by electrical lighting and fixtures not to exceed 3.0 watts per square foot. (iii) Electric power usage and consumption for the Premises shall be based on lighting of the Premises during normal business hours on a level suitable for normal office use and power for small desk-top machines and devices using no more than 110 volt, 20 amp circuits (allowable load of 15 amps). Heavier use items shall not be used or installed, unless expressly permitted elsewhere herein or by consent of Landlord. (iv) Should Tenant's total rated electrical design load per square foot in the Premises exceed the Building standard rated electrical design load on a per square foot basis [which Building standard is 5.5 watts per usable square foot, with a voltage capacity of 120 volts], for either low or high voltage electrical consumption, or if Tenant's electrical design requires low voltage or high voltage circuits in excess of Tenant's share of the Building standard circuits, as such share is determined by Landlord in Landlord's reasonable judgment, Landlord may (at Tenant's expense), if reasonably possible, install within the Building one (1) additional high voltage panel and/or one (1) additional low voltage panel with associated transformer (the "Additional Electrical Equipment") as necessary to accommodate the aforesaid requirements. If the Additional Electrical Equipment is installed because Tenant's low or high voltage rated electrical design load exceeds the applicable Building standard rated electrical design load (on a per square foot basis), then a meter may also be added by Landlord (at Tenant's expense) to measure the electricity provided through the Additional Electrical Equipment. (c) If Tenant uses any services in an amount or for a period in excess of that provided for herein, Landlord also reserves the right to charge Tenant reimbursement for the cost of such added services. Landlord reserves the right to install separate metering devices to determine such excessive periods and/or amounts, at Tenant's sole cost and expense. If there is disagreement as to such additional charge, the opinion of the appropriate local utility company or an independent professional engineering firm shall prevail. (d) Landlord shall not be liable for any damages directly or indirectly, and Tenant shall have no right of set-off or reduction in Rent, resulting from the installation, use, malfunction, or interruption of use of any equipment in connection with the furnishing of services referred to herein, including, but not limited to, any interruption in services by any cause beyond the immediate control of the Landlord; provided however, Landlord shall exercise due care in furnishing adequate and uninterrupted services. Without limitation on the foregoing, under no circumstances shall Landlord <PAGE> incur liability for damages caused directly or indirectly by any malfunction of Tenant's computer systems resulting from or arising out of the failure or malfunction of any electrical, air conditioning or other system serving the Building, and Tenant hereby expressly waives the right to make any such claim against Landlord, unless caused by Landlord's willful misconduct or gross negligence. See Special Stipulation # 14. ---------------------------- (e) There is available in the Building a Fairchild Communications Systems Service (the "Fairchild Service"), upon terms, conditions and fees to be agreed upon by Tenant and the party providing such Fairchild Service. Neither Landlord nor any manager of the Building shall be liable to Tenant for any damages should the furnishing of any or all of such Fairchild Service be disrupted, terminated or diminished in any manner, nor shall any disruption, diminution, or cessation relieve Tenant from the performance of any of Tenant's covenants, conditions and agreements under this Lease, nor shall any disruption, diminution or cessation constitute constructive eviction or entitle Tenant to an abatement of Rent. Tenant holds Landlord and any such manager harmless from any claims Tenant may have arising out of or connected with such cessation or interruption. If Tenant elects not to use the Fairchild Service, and Tenant has telephone or other such equipment installed at Tenant's own direction, such system shall not (i) cause the Building not to be in compliance with any municipal safety codes or ordinances, including, but not limited to, fire safety codes; (ii) cause damage to the Building; (iii) require an amount of electrical or other services unreasonably in excess of the requirements for customary business-telephone systems; or (iv) impact upon the normal use, function and operation of the Fairchild Service. If Tenant elects not to use or be a part of the Fairchild Service, Tenant shall not use any wiring or other equipment which is a part of the Fairchild Service without the prior, written consent of the provider of such services. If Tenant uses any such wiring or equipment without such consent, Tenant shall be liable for, and shall pay to the provider of such services on demand, (i) the cost of such use; (ii) the cost of repairing or replacing any wiring or equipment damaged or altered by such use; and (iii) any and all other damages caused by such use. See Special Stipulation # 19. ---------------------------- 9. DESTRUCTION OR DAMAGE TO PREMISES --------------------------------- (a) If the Premises or the Building are totally destroyed (or so substantially damaged as to be untenantable in the determination of the Architect of the Building) by storm, fire, earthquake or other casualty, Landlord shall have the option to: (i) Terminate this Lease as of the date of the occurrence of the storm, earthquake, fire or other casualty by giving notice to Tenant within sixty (60) days from the date of such damage or destruction; or (ii) Commence the process of restoration of the Premises to a tenantable condition within sixty (60) days from the date of receipt by Landlord of substantially all of the insurance proceeds paid with respect to such casualty, and proceed with due diligence to complete <PAGE> said restoration of the Premises. If Landlord chooses to restore the Premises, Rent shall abate with respect to the untenantable portion of the Premises from the date of such casualty until the date of Substantial Completion. If Landlord fails to complete such restoration within one hundred eighty (180) days of the date of the casualty, this Lease may be terminated as of the date of the casualty upon notice from Tenant to Landlord following the expiration of said one hundred eighty (180) day period. If such notice is not given, this Lease shall remain in force and effect and Rent shall commence upon delivery of the Premises to Tenant in a tenantable condition (evidenced by notice to Tenant by the Architect of the Building or Tenant's Architect, whichever is monitoring such work of Substantial Completion). If such damage or destruction occurs within six (6) months of the expiration of the Term, Tenant may, at its option on notice to Landlord within thirty (30) days of such destruction or damage, terminate this Lease as of the date of such destruction or damage. (b) If the Premises are damaged but not rendered wholly untenantable by any event set forth in Paragraph 9(a) above, Rent shall abate in the proportion the Premises have been made untenantable. Landlord shall restore the Premises expeditiously, and upon the date of Substantial Completion Rent shall commence. See Special Stipulation #29. --------------------------- 10. DEFAULT BY TENANT; LANDLORD'S REMEDIES -------------------------------------- (a) The occurrence of any of the following shall constitute an Event of Default hereunder by Tenant: (i) The Rent or any other sum of money due of Tenant hereunder is not paid within ten (10) days of the date when due; (ii) The Premises are abandoned or vacated; (iii) Any petition is filed by or against Tenant under any section or chapter of the National or Federal Bankruptcy Act or any other applicable Federal or State bankruptcy, insolvency or other similar law, and, in the case of a petition filed against Tenant, such petition is not dismissed within thirty (30) days after the date of such filing; if Tenant shall become insolvent or transfer property to defraud creditors; if Tenant shall make an assignment for the benefit of creditors; or if receiver is appointed for any of Tenant's assets; (iv) Tenant fails to bond off or otherwise remove any lien filed against the Premises or the Building by reason of Tenant's actions, within fifteen (15) days after Tenant has notice of the filing of such lien; (v) Tenant fails to observe, perform and keep the covenants, agreements, provisions, stipulations, conditions and Rules herein contained to be observed, <PAGE> performed and kept by Tenant (other than the failure to pay when due any Rent or any other sum of money becoming due Landlord hereunder, which under all circumstances is governed by and subject to Paragraph 10(a)(i) herein), and persists in such failure after ten (10) days written notice by Landlord requiring that Tenant remedy, correct, desist or comply (or if any such failure to comply on the part of Tenant would reasonably require more than ten (10) days to rectify, unless Tenant commences rectification within the ten (10) day notice period and thereafter promptly, effectively and continuously proceeds with the rectification of the failure to comply on the part of Tenant and, in all such events, cures such failure to comply on the part of Tenant no later than ninety (90) days after such notice). See Special Stipulations # 26 and 30. ------------------------------------ (b) Upon the occurrence of an Event of Default, Landlord shall have the option to do and perform any one or more of the following: (i) Terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord. If Tenant shall fail to do so, Landlord may, without further notice and without prejudice to any other remedy Landlord may have, enter upon the Premises without the requirement of resorting to the dispossessory procedures set forth in O.C.G.A. (S)(S) 44-7-50 et seq. and expel -- --- or remove Tenant and Tenant's effects without being liable for any claim for trespass or damages therefor. Upon any such termination, Tenant shall remain liable to Landlord for damages, due and payable monthly on the day Rent would have been payable hereunder, in an amount equal to the Rent and any other amounts which would have been owing by Tenant for the balance of the Term, had this Lease not been terminated, less the net proceeds, if any, of any reletting of the Premises by Landlord, after deducting all of Landlord's costs and expenses (including, without limitation, advertising expenses and professional fees) incurred in connection with or in any way related to the termination of this Lease, eviction of Tenant and such reletting; and/or (ii) Declare the entire amount of Rent calculated on the current rate being paid by Tenant, and other sums which in Landlord's reasonable determination would become due and payable during the remainder of the Term (including, but not limited to, increases in Rent pursuant to Paragraph 2(b) and 3(e) herein), discounted to present value by using a reasonable discount rate selected by Landlord, to be due and payable immediately. Upon such acceleration of such amounts, Tenant agrees to pay the same at once, together with all Rent and other amounts theretofore due, at Landlord's address as provided herein; <PAGE> provided however, that such payment shall not constitute a penalty or forfeiture but shall constitute liquidated damages for Tenant's failure to comply with the terms and provisions of this Lease (Landlord and Tenant agreeing that Landlord's actual damages in such an event are impossible to ascertain and that the amount set forth above is a reasonable estimate thereof). Upon making such payment, Tenant shall receive from Landlord all rents received by Landlord from other tenants renting the Premises during the Term, provided that the monies to which Tenant shall so become entitled shall in no event exceed the entire amount actually paid by Tenant to Landlord pursuant to the preceding sentence, less all of Landlord's costs and expenses (including, without limitation, advertising expenses and professional fees) incurred in connection with or in any way related to the reletting of the Premises. The acceptance of such payment by Landlord shall not constitute a waiver of rights or remedies to Landlord for any failure of Tenant thereafter occurring to comply with any term, provision, condition or covenant of this Lease; and/or (iii) Enter the Premises as the agent of Tenant without the requirement of resorting to the dispossessory procedures set forth in O.C.G.A. (S)(S) 44-7-50 et seq. and without being liable for any claim for trespass or damages therefor, and, in connection therewith, rekey the Premises, remove Tenant's effects therefrom and store the same at Tenant's expense, without being liable for any damage thereto, and relet the Premises as the agent of Tenant, without advertisement, by private negotiations, for any term Landlord deems proper, and receive the rent therefor. Tenant shall pay Landlord on demand any deficiency that may arise by reason of such reletting, but Tenant shall not be entitled to any surplus so arising. Tenant shall reimburse Landlord for all costs and expenses (including, without limitation, advertising expenses and professional fees) incurred in connection with or in any way related to the eviction of Tenant and reletting the Premises, and for the amount of any other Rent which would have been due of Tenant to Landlord hereunder if not for certain concessions granted by Landlord to Tenant. Landlord, in addition to but not in lieu of or in limitation of any other right or remedy provided to Landlord under the terms of this Lease or otherwise (but only to the extent such sum is not reimbursed to Landlord in conjunction with any other payment made by Tenant to Landlord), shall have the right to be immediately repaid by Tenant the amount of all sums expended by Landlord and not repaid by Tenant in connection with preparing or improving the Premises to Tenant's specifications and any and all costs and expenses incurred in renovating or altering the Premises to make it suitable for reletting; and/or <PAGE> (iv) As agent of Tenant, do whatever Tenant is obligated to do under this Lease, including, but not limited to, entering the Premises, without being liable to prosecution or any claims for damages, in order to accomplish this purpose. Tenant agrees to reimburse Landlord immediately upon demand for any expenses which Landlord may incur in thus effecting compliance with this Lease on behalf of Tenant. Landlord shall not be liable for any damages resulting to Tenant from such action, whether caused by the negligence of Landlord or otherwise. (c) Pursuit by Landlord of any of the foregoing remedies shall not preclude the pursuit of general or special damages incurred, or of any of the other remedies provided herein, at law or in equity. (d) No act or thing done by Landlord or Landlord's employees or agents during the Term shall be deemed an acceptance of a surrender of the Premises. Neither the mention in this Lease of any particular remedy, nor the exercise by Landlord of any particular remedy hereunder, at law or in equity, shall preclude Landlord from any other remedy Landlord might have under this Lease, at law or in equity. Any waiver of or redress for any violation of any covenant or condition contained in this Lease or any of the Rules now or hereafter adopted by Landlord, shall not prevent a subsequent act, which would have originally constituted a violation, from having all the force and effect of an original violation. The receipt by Landlord of Rent with knowledge of the breach of any covenant in this Lease shall not be deemed a waiver of such breach. 11. ASSIGNMENT AND SUBLETTING ------------------------- (a) Tenant shall not sublet any part of the Premises, nor assign this Lease or any interest herein, without the prior consent of Landlord, such consent not to be unreasonably withheld or delayed. Landlord may deny consent to an assignment or sublease if, by way of illustration but not limitation the rate of compensation, including, but not limited to, all rent requested by Tenant for the portion of the Premises to be subleased (but only if such sublease is for more than an increment of thirty percent (30%) of the space then leased by Tenant in the Building) or for the assignment of the Lease would impact upon or impair Landlord's ability to rent space in the Building at the then market rate as offered by Landlord (but only if such sublease is for more than an increment of thirty percent (30%) of the space then leased by Tenant in the Building), or if the financial statements of the proposed assignee or sublessee are unsatisfactory. Additionally, neither Tenant nor any other person having an interest in the possession, use, occupancy or utilization of the Premises shall enter into any lease, sublease, license, concession, assignment or other agreement for use, occupancy or utilization of space in the Premises which provides for rental or other payment for such use, occupancy or utilization based, in whole or in part, on the net income or profits derived by any person or entity from the Premises leased, used, occupied or utilized. Any such purported lease, sublease, license, concession, assignment or other agreement shall be absolutely void and ineffective as a <PAGE> conveyance of any right or interest in the possession, use, occupancy or utilization of any part of the Premises. If such a sublease is entered into, neither the rental payable thereunder nor the amount thereof passed on to any person or entity shall have deducted therefrom any expenses or costs related in any way to the subleasing of such space. (b) Consent by Landlord to one assignment or sublease shall not destroy or waive this provision, and all later assignments and subleases shall likewise be made only upon prior consent of Landlord. If a sublease or assignment is consented to by Landlord, any sublessees or assignees shall become liable directly to Landlord for all obligations of Tenant hereunder without relieving or in any way modifying Tenant's liability hereunder. If Tenant notifies Landlord of Tenant's intent to sublease or assign this Lease, Landlord shall within thirty (30) days from such notice (a) consent to such proposed subletting; (b) deny such consent, giving reasons for denying such consent at the time of the denial; or (c) with respect to an assignment of the Lease (but not a sublease) elect to cancel this Lease, or to reduce the Premises by the area requested to be assigned if the area is less than the entire Premises. If Landlord elects to cancel or to reduce the area of the Premises, Tenant shall have ten (10) days from such notice to notify Landlord of Tenant's acceptance of such cancellation or reduction or Tenant's desire to remain in possession of Premises for the Term. If Tenant fails to so notify Landlord of Tenant's election to accept termination or reduction or to continue as Tenant hereunder, such failure shall be deemed an election to terminate or have the area of Premises reduced, as the case may be, and such termination or reduction shall be effective as of the end of the ten (10) day period provided for in Landlord's notice as hereinabove provided. If Landlord gives its consent to any such assignment or sublease, fifty percent (50%) of any gross rent or other charge to the assignee or subtenant for all or any portion of the Premises over and above the Rent payable by Tenant for such space shall be due and payable, and shall be paid, to Landlord. Any costs payable with respect to such a sublease or assignment shall be paid entirely by Tenant, and shall not be factored into the rate of the sublease or assignment in question for the purposes of determining the portion of excess proceeds payable to Landlord or Tenant. (c) The sale or transfer of Tenant's voting stock (if a corporation) or partnership interest (if a partnership) resulting in the transfer of control of a majority of such stock or interest, or the occupancy of the Premises by any successor firm of Tenant or by any firm into which or with which Tenant may become merged or consolidated shall be deemed an assignment of this Lease requiring the prior consent of Landlord. See Special Stipulation # 13. ---------------------------- 12. CONDEMNATION ------------ If the Premises, or a part of such Premises such that the Premises in the judgment of the Architect for the Building are untenantable, are taken by eminent domain or other similar proceeding or are conveyed in lieu of such taking, this Lease shall expire on the date when title or right of possession vests, and Rent paid for <PAGE> any period beyond said date shall be repaid to Tenant. If there is a partial taking where this Lease is not terminated, the Rent shall be adjusted in proportion to the square feet of Premises taken, determined by the Architect for the Building. In either event, Landlord shall be entitled, and Tenant shall not have any right, to claim any award made in any condemnation proceeding, action or ruling relating to the Building or the Property; provided, however, Tenant shall be entitled to make a claim in any condemnation proceeding, action or ruling relating to the Building for Tenant's moving expenses and the unamortized value of leasehold improvements in the Premises actually paid for by Tenant, to the extent such claim does not in any manner impact upon or reduce Landlord's claim or award in such condemnation proceeding, action or ruling. Landlord shall have, in Landlord's sole discretion, the option of terminating this Lease if any such condemnation, action, ruling or conveyance in lieu thereof makes continuation of Landlord's use of the Building economically unfeasible. See --- Special Stipulation # 18. ------------------------ 13. INSPECTIONS ----------- Landlord, its agents or employees may enter the Premises at reasonable hours with reasonable prior notice, except in the event of emergency, for which no notice shall be required, to (a) exhibit the Premises to prospective purchasers or tenants of the Premises or the Building; (b) inspect the Premises to see that Tenant is complying with its obligations hereunder; and (c) make repairs (i) required of Landlord under the terms hereof; (ii) to any adjoining space in the Building; or (iii) to any systems serving the Building which run through the Premises. Such entry shall be accomplished in a manner so as not to unreasonably disrupt or otherwise disturb Tenant's operations or business. Landlord shall, in accordance with this Lease, repair, at no cost or expense to Tenant, any damage to the Premises and Tenant's property therein caused by such entry into the Premises. 14. SUBORDINATION ------------- (a) This Lease shall be subject and subordinate to any underlying land leases or first priority deed to secure debt which may now or hereafter affect this Lease, the Building or the Property and also to all renewals, modifications, extensions, consolidations, and replacements of such underlying land leases and such deeds to secure debt. In confirmation of the subordin- ation set forth in this Paragraph 14, Tenant shall, at Landlord's request, execute and deliver such further instruments as may be desired by the holder of the first priority deed to secure debt (a "Mortgagee") or by any lessor under any such underlying land leases. Notwithstanding the foregoing, Landlord or such Mortgagee shall have the right to subordinate or cause to be subordinated, in whole or in part, any such underlying land leases or first priority deed to secure debt to this Lease (but not in respect to priority of entitlement of insurance or condemnation proceeds). If any such underlying land leases or first priority deed to secure debt terminates for any reason or any such first deed to secure debt is foreclosed or a conveyance in lieu of foreclosure is made for any reason, Tenant shall, notwithstanding any subordination, deliver to Mortgagee within ten (10) days of written request an attornment agreement, providing <PAGE> that such Tenant shall continue to abide by and comply with the terms and conditions of this Lease. (b) If any proceedings are brought for the foreclosure of, or in the event of exercise of the power of sale or conveyance in lieu of foreclosure under any deed to secure debt, Tenant shall at the option of the purchaser at such foreclosure or other sale, attorn to such purchaser and recognize such person as Landlord under this Lease. The institution of any suit, action or other proceeding by a Mortgagee or a sale of the Property pursuant to the powers granted to a Mortgagee under its deed to secure debt, shall not, by operation of law or otherwise, result in the cancellation or the termination of this Lease or of the obligations of Tenant hereunder. (c) If such purchaser requests and accepts such attornment, from and after such attornment, Tenant shall have the same remedies against such purchaser for the breach of an agreement contained in this Lease that Tenant might have had against Landlord if the deed to secure debt had not been terminated or foreclosed, except such purchaser shall not be (i) liable for any act or omission of the prior Landlord; (ii) subject to any offsets or defenses which Tenant might have against the prior Landlord; or (iii) bound by any Rent or security deposit which Tenant might have paid in advance to the prior Landlord. See Special Stipulation # 10 ---------------------------- 15. INDEMNIFICATION AND HOLD HARMLESS --------------------------------- (a) Tenant hereby indemnifies and holds Landlord harmless from and against any injury, expense, damage, liability or claim, imposed on Landlord by any person whomsoever, whether due to damage to the Premises, claims for injuries to the person or property of any other tenant of the Building or of any other person in or about the Building for any purpose whatsoever, or administrative or criminal action by a governmental authority, whether such injury, expense, damage, liability or claim results either directly or indirectly from the act, omission, negligence, misconduct or breach of any provisions of this Lease by Tenant, the agents, servants, or employees of Tenant. Tenant further agrees to reimburse Landlord for any costs or expenses, including, but not limited to, court costs and reasonable attorney's fees, which Landlord may incur in investigating, handling or litigating any such claim or any action by a governmental authority. (b) Tenant shall give notice to Landlord of any defective condition in or about the Premises known to Tenant, and further agrees to attempt to contact Landlord by telephone immediately in such instance. See Special Stipulation # 14 ---------------------------- 16. TENANT'S INSURANCE ------------------ Tenant shall carry (at its sole expense during the Term) (i) fire and extended coverage insurance insuring Tenant's interest in its improvements to the Premises and any and all furniture, equipment, supplies, contents and other property owned, leased, held or possessed by Tenant and contained therein, such insurance coverage <PAGE> to be in an amount equal to the full insurable value of such improvements and property, as such may increase from time to time, (ii) worker's compensation insurance as required by applicable law, and (iii) comprehensive liability coverage for injury to or death of a person or persons and for damage to property occasioned by or arising out of any construction work being done on the Premises, or arising out of the condition, use, or occupancy of the Premises, or other portions of the Building or Property, the limits of such policy or policies to be in amounts not less than One Million Five Hundred Thousand Dollars ($1,500,000) with respect to injuries to or death of any one person, Three Million Dollars ($3,000,000) with respect to any one casualty or occurrence and Three Hundred Thousand Dollars ($300,000) with respect to property damage. Landlord and Tenant shall each have included in all policies of insurance respectively obtained by them with respect to the Building or Premises a waiver by the insurer of all right of subrogation against the other in connection with any loss or damage insured against. To the full extent permitted by law, Landlord and Tenant each waives all right of recovery against the other, and agrees to release the other from liability for loss or damage to the extent such loss or damage is covered by valid and collectible insurance in effect at the time of such loss or damage; provided, however, that the foregoing release by each party is conditioned upon the other party's carrying insurance with the above described waiver of subrogation, and if such coverage is not obtained or maintained by either party, then the other party's foregoing release shall be deemed to be rescinded until such waiver is either obtained or reinstated. All said insurance policies shall be carried with companies licensed to do business in the State of Georgia reasonably satisfactory to Landlord and shall be noncancellable except after twenty (20) days' written notice to Landlord. Each policy shall name Landlord, Landlord's Property Manager and any other person designated by Landlord as additional insureds and provide that it is primary to, and not contributing with, any policy carried by Landlord, Landlord's Property Manager, or other designated person covering the same loss. At Landlord's request, duly executed certificates of such insurance shall be delivered to Landlord prior to the Commencement Date and at least thirty (30) days prior to the expiration of each respective policy term. See Special Stipulation #21. --------------------------- 17. REMEDIES CUMULATIVE ------------------- The rights given to Landlord and Tenant herein are in addition to any rights that may be given to Landlord or Tenant by any statute or under law. 18. ENTIRE AGREEMENT - NO WAIVER ---------------------------- This Lease contains the entire agreement of the parties hereto and no representations, inducements, promises or agreements, oral or otherwise, between the parties not embodied herein shall be of any force and effect. The failure of either party to insist in any instance on strict performance of any covenant or condition hereof, or to exercise any option herein contained, shall not be construed as a waiver of such covenant, condition or option in any other instance. This Lease cannot be changed or terminated orally, and can be modified only in writing, executed by each party hereto. <PAGE> 19. HOLDING OVER ------------ If Tenant remains in possession of the Premises after expiration of the Term, or after any termination of the Lease by Landlord, with Landlord's acquiescence and without any written agreement between the parties, Tenant shall be a tenant at sufferance and such tenancy shall be subject to all the provisions hereof, except that the Monthly Rental for said holdover period shall be double the amount of Rent due in the last month of the Term. There shall be no renewal of this Lease by operation of law. Nothing in this Paragraph shall be construed as a consent by Landlord to the possession of the Premises by Tenant after the expiration of the Term or any termination of the Lease by Landlord. See Special Stipulation # 9. --------------------------- 20. HEADINGS -------- The headings in this Lease are included for convenience only and shall not be taken into consideration in any construction or interpretation of any part of this Lease. 21. NOTICES ------- (a) Any notice, request or consent by either party to the other hereunder shall be valid only if in writing and shall be deemed to be duly given only if hand-delivered, or sent by certified mail or by a recognized national overnight delivery service which has a receipt of notice as a part of its delivery function. Such notices shall be addressed (i) if to Tenant, at the Premises, with a copy to Samuel N. Frankel, Esq., Frankel, Hardwick, Tanenbaum & Fink, P.C., Suite 400, 359 East Paces Ferry Road, N.E., Atlanta, Georgia 30305, and (ii) if to Landlord, at Landlord's address set forth above, or at such other address for either party as that party may designate by notice to the other. Notice shall be deemed given, if delivered personally, upon delivery thereof, and if mailed three (3) business days after the mailing thereof. (b) Tenant hereby appoints as its agent to receive service of all dispossessory or distraint proceedings, Samuel N. Frankel, Esq., Frankel, Hardwick, Tanenbaum & Fink, P.C., Suite 400, 359 East Paces Ferry Road, N.E., Atlanta, Georgia 30305. 22. HEIRS, SUCCESSORS, AND ASSIGNS - PARTIES ---------------------------------------- (a) This Lease shall bind and inure to the benefit of Landlord and Tenant, and their respective successors, heirs, legal representatives and assigns. The term "Landlord" as used in this Lease means only the owner (or the ground lessee) for the time being of the Property and Building of which the Premises are a part, so that in the event of any sale or sales of said Property (or of any lease thereof), Landlord named herein shall be and hereby is entirely released of all covenants and obligations of Landlord hereunder accruing thereafter, and it shall be deemed without further agreement that the purchaser, or the lessee, as the case may be, has assumed and agreed to carry out any and all covenants and obligations of Landlord hereunder during the period such party has possession of the Property and Building. If the Property and Building are severed as to ownership by sale and/or lease, the owner of the entire Building <PAGE> or lessee of the entire Building that has the right to lease space in the Building to tenants shall be deemed "Landlord". Tenant shall be bound to any such succeeding party for performance by Tenant of all the terms, covenants, and conditions of this Lease and agrees to execute any attornment agreement not in conflict with the terms and provisions of this Lease at the request of any such party. (b) The parties "Landlord" and "Tenant" and pronouns relating thereto, as used herein, shall include male, female, singular and plural, corporation, partnership or individual, as may fit the particular parties. 23. ATTORNEY'S FEES --------------- If any law suit or court action between Landlord and Tenant arises out of or under this Lease, the prevailing party in such law suit or court action shall be entitled to and shall collect from the non-prevailing party the reasonable attorney's fees and court costs actually incurred by the prevailing party with respect to said lawsuit or court action. 24. TIME OF ESSENCE --------------- TIME IS OF THE ESSENCE OF THIS LEASE. 25. NO ESTATE IN LAND ----------------- Tenant has only a usufruct under this Lease, not subject to levy or sale. No estate shall pass out of Landlord by this Lease. 26. SECURITY DEPOSIT ---------------- Tenant has deposited with Landlord $ 0 as a security deposit --------- for the performance by Tenant of all the terms, covenants and conditions of this Lease upon Tenant's part to be performed. Landlord shall have no obligation to segregate such security deposit from any other funds of Landlord, and interest earned on such security deposit, if any, shall belong to Landlord. The security deposit shall be returned to Tenant within thirty (30) days after the expiration of the Term, if Tenant has fully performed its obligations hereunder. Landlord shall have the right to apply any part of said security deposit to cure any default of Tenant and if Landlord does so, Tenant shall upon demand deposit with Landlord the amount so applied so that Landlord shall have the full security deposit on hand at all times during the Term of this Lease. If there is a sale or lease of the Building subject to this Lease, Landlord shall transfer the security deposit to the vendee or lessee, and Landlord shall be released from all liability for the return of such security deposit. Tenant shall look solely to the successor Landlord for the return of said security deposit. This provision shall apply to every transfer or assignment made of the security deposit to a successor Landlord. The security deposit shall not be assigned or encumbered by Tenant without the prior consent of Landlord and any such unapproved assignment or encumbrance shall be void. 27. COMPLETION OF THE PREMISES -------------------------- Landlord shall monitor completion of the work described in Exhibit "C" ----------- subject to and limited by the terms of said Exhibit "C", and subject to payments ----------- which may be required of Tenant thereunder. Any work required by Tenant as provided for in said Exhibit "C" shall ----------- <PAGE> be performed within the provisions and according to all standards of said Exhibit "C". ----------- 28. PARKING ARRANGEMENTS -------------------- Landlord shall maintain 2.75 unreserved parking spaces per 1000 usable square feet leased by Tenant, for the purpose of accommodating the parking needs of Tenant and Tenant's invitees and employees. Such parking shall be available subject to the limitations and conditions from time to time reasonably imposed by Landlord, but at no additional costs to Tenant. Said parking shall be maintained on the Property or on areas located in the vicinity of the Property and within the Project. 29. RULES AND REGULATIONS --------------------- The Rules set forth on Exhibit "D" are a part of this Lease. Landlord ----------- may from time to time amend, modify, delete or add additional, reasonable Rules for the use, operation, safety, cleanliness and care of the Premises and the Building. Such new or modified Rules shall be effective upon notice to Tenant. Tenant will cause its employees and agents, or any others permitted by Tenant to occupy or enter the Premises to at all times abide by the Rules. If there is a breach of any Rules, then after the expiration of the applicable notice and cure periods set forth in Paragraph 10 of this Lease, Landlord shall have all remedies in this Lease provided for in the Event of Default by Tenant and shall, in addition, have any remedies available at law or in equity, including but not limited to, the right to enjoin any breach of such Rules. Landlord shall not be responsible to Tenant for the nonobservance by any other tenant or person of any such Rules; provided, however, that Landlord shall use reasonable efforts to cause other tenants to comply with such Rules. 30. RIGHT TO PARTIALLY RELOCATE --------------------------- At any time or from time to time during the Term of this Lease or any renewal thereof, Landlord shall have the unrestricted and unconditional right to partially relocate Tenant to any other office space within the Building but only with regard to space leased by a Tenant on a floor, where Tenant leases less than twelve-thousand five hundred (12,500) rentable square feet on such floor; provided, however, that such right shall not exist as to space Tenant leases on either the 15th or the 19th floors of the Building. Any such relocation shall only be onto floors in the mid-rise or high-rise elevator banks of the Building, and shall be into space comparable (in terms of quality of build-out and functionality of lay-out) to the space from which Tenant is being located. Landlord shall deliver notice to Tenant of Landlord's desire to relocate Tenant, together with a proposal for the area to which such Premises shall be relocated. Should Landlord exercise its right to relocate Tenant under this Section 45 then (i) any and all reasonable expenses including, but not limited to, those incurred by Tenant, of said relocation or of any necessary renovation or alteration, as calculated by Landlord prior to any relocation, shall be paid by Landlord, and (ii) following such relocation, the substituted space shall for all purposes thereinafter constitute the Premises and all terms and conditions of this Lease shall apply with full force and effect to the Premises as so relocated. If Tenant has not relocated its premises within sixty (60) days after the later to occur of (i) when Landlord first notifies Tenant of Landlord's desire to relocate <PAGE> Tenant or (ii) the relocation space is Substantially Complete, Landlord shall have the right to terminate this Lease as to the space in question by giving notice of such termination to Tenant. Such termination shall be effective upon any date selected by Landlord in the Termination Notice which is at least ten (10) days after the Termination Notice is given by Landlord to Tenant. Tenant hereby further covenants and agrees to promptly execute and deliver to Landlord any lease amendment or other such document appropriate to reflect the changes in the Lease described or contemplated above. 31. LATE PAYMENTS ------------- Any payment due of Tenant hereunder not received by Landlord within five (5) days of the date when due shall be assessed a five percent (5%) charge for Landlord's administrative and other costs in processing and pursuing the payment of such late payment. Acceptance by Landlord of a payment, and the cashing of a check, in an amount less than that which is currently due shall in no way affect Landlord's rights under this Lease and in no way be an accord and satisfaction. This provision does not prevent Landlord from declaring the non- payment of Rent when due after the expiration of any applicable notice and cure periods set forth in this Lease an event of default hereunder. Also See Special ---------------- Stipulations # 2 and 26. ------------------------ 32. ESTOPPEL CERTIFICATE -------------------- At any time after the date hereof, Tenant shall, within ten (10) days of the request by Landlord, execute, acknowledge and deliver to Landlord, any Mortgagee, prospective Mortgagee or any prospective purchaser of the Property, the Building, or both (as designated by Landlord), or any prospective purchaser or transferee of the Building an Estoppel Certificate in recordable form, or in such other form as Landlord may from time to time reasonably require, evidencing whether or not (a) this Lease is in full force and effect; (b) this Lease has been amended in any way; (c) Tenant has accepted and is occupying the Premises; (d) there are any existing defaults on the part of Landlord hereunder or defenses or offsets against the enforcement of this Lease to the knowledge of Tenant (specifying the nature of such defaults, defenses or offsets, if any); (e) the date to which Rent and other amounts due hereunder, if any, have been paid; and (f) any such other information as may be reasonably requested by Landlord. Each certificate delivered pursuant to this Paragraph may be relied on by Landlord, any prospective purchaser or transferee of Landlord's interest hereunder, or any Mortgagee or prospective Mortgagee. 33. SEVERABILITY AND INTERPRETATION ------------------------------- (a) If any clause or provision of this Lease shall be deemed illegal, invalid or unenforceable under present or future laws effective during the Term, the remainder of this Lease shall not be affected by such illegality, invalidity or unenforce- ability, and in lieu of each clause or provision of this Lease that is illegal, invalid or unenforceable, there shall be added as a part of this Lease a clause or provision as similar in terms to such illegal, invalid or unenforceable clause or provision as may be possible and be legal, valid and enforceable. <PAGE> (b) If any provisions of this Lease require judicial interpretation, the court interpreting or construing the same shall not apply a presumption that the terms of any such provision shall be more strictly construed against one party or the other by reason of the rule of construction that a document is to be construed most strictly against the party who itself or through its agent prepared the same, as all parties hereto have participated in the preparation of this Lease. 34. MULTIPLE TENANTS ---------------- If more than one individual or entity comprises and constitutes Tenant, then all individuals and entities comprising Tenant are and shall be jointly and severally liable for the due and proper performance of Tenant's duties and obligations arising under or in connection with this Lease. 35. FORCE MAJEURE. See Special Stipulation # 15 ------------- ---------------------------- 36. QUIET ENJOYMENT --------------- So long as Tenant is in full compliance with the terms and conditions of this Lease, Landlord shall warrant and defend Tenant in the quiet enjoyment and possession of the Premises during the Term against any and all claims made by, through or under Landlord, subject to the terms of this Lease. 37. BROKERAGE COMMISSION; INDEMNITY ------------------------------- THE LANDMARKS GROUP SERVICES CORPORATION OF GEORGIA ("SERVICES") HAS ACTED AS AGENT FOR LANDLORD IN THIS TRANSACTION AND ARMADA ASSOCIATES ("ARMADA") HAS ACTED AS AGENT FOR TENANT IN THIS TRANSACTION. BOTH SERVICES AND ARMADA ARE TO BE PAID A COMMISSION BY LANDLORD. Tenant warrants that there are no other claims for broker's commissions or finder's fees in connection with its execution of this Lease. Tenant hereby indemnifies Landlord and holds Landlord harmless from and against all loss, cost, damage or expense, including, but not limited to, attorney's fees and court costs, incurred by Landlord as a result of or in conjunction with a claim of any real estate agent or broker, if made by, through or under Tenant. Landlord hereby indemnifies Tenant and holds Tenant harmless from and against all loss, cost, damage or expense, including, but not limited to, attorney's fees and court costs, incurred by Tenant as a result of or in conjunction with a claim of any real estate agent or broker, if made by, through or under Landlord. 38. EXCULPATION OF LANDLORD ----------------------- Landlord's liability to Tenant with respect to this Lease shall be limited solely to Landlord's interest in the Building. Neither Landlord, any of the partners of Landlord, any officer, director, or shareholder of Landlord nor any of the partners of Landlord shall have any personal liability whatsoever with respect to this Lease. 39. ORIGINAL INSTRUMENT ------------------- Any number of counterparts of this Lease may be executed, and each such counterpart shall be deemed to be an original instrument. <PAGE> 40. GEORGIA LAW ----------- This Lease has been made under and shall be construed and interpreted under and in accordance with the laws of the State of Georgia. 41. NO RECORDATION OF LEASE ----------------------- Without the prior consent of Landlord, neither this Lease nor any memorandum hereof shall be recorded or placed on public record. 42. HAZARDOUS WASTES ---------------- Tenant shall not (either with or without negligence) cause or permit the escape, disposal or release of any biologically or chemically active or other hazardous substances or materials. Tenant shall not allow the storage or use of such substances or materials in any manner not sanctioned by law or by the highest standards prevailing in the industry for the storage and use of such substances or materials, nor allow to be brought into the Building, the Premises or the Property, any such materials or substances except to use in the ordinary course of Tenant's business, and then only after notice is given to Landlord of the identity of such substances or materials. Without limitation, hazardous substances and materials shall include those described in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et seq., any applicable state or local laws and the regulations adopted under these acts. If any lender or govern-mental agency shall ever require testing to ascertain whether or not there has been any release of hazardous materials as a result of a release by, through or under Tenant, then the reasonable costs thereof shall be reimbursed by Tenant to Landlord upon demand as additional charges if such requirement applies to the Premises. In addition, Tenant shall execute affidavits, representations and the like from time to time at Landlord's request concerning Tenant's best knowledge and belief regarding the presence of hazardous substances or materials on the Premises. In all events, Tenant shall indemnify Landlord in the manner elsewhere provided in this Lease from any release of hazardous materials on the Premises occurring while Tenant is in possession, or elsewhere, if caused by Tenant or persons acting under Tenant. The within covenants shall survive the expiration or earlier termination of the Lease Term. See Special Stipulation # 25. ---------------------------- 43. LEASE BINDING UPON DELIVERY --------------------------- This Lease shall not be binding until and unless all parties have duly executed said Lease and a fully executed counterpart of said Lease has been delivered to Tenant. 44. SPECIAL STIPULATIONS -------------------- The special stipulations attached hereto and made a part hereof, if any, shall control if in conflict with any of the remaining provisions of this Lease. IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be executed under seal, on the day and year first above written. <PAGE> TENANT: AMERICA'S FAVORITE CHICKEN COMPANY, a Minnesota corporation By: /s/ ------------------------------- Name:__________________________ Its:___________________________ Attest:____________________________ Name:__________________________ Its:___________________________ (CORPORATE SEAL) (Federal Identification Number:_________) *Note: If Tenant is a corporation, two authorized corporate officers must execute this Lease in their appropriate capacities for Tenant, affixing the corporate seal. [Signatures continued on next page] <PAGE> [Signatures continued from previous page] "LANDLORD" CONCOURSE VI ASSOCIATES, a Georgia general partnership By: Landmark Forty-Two, L.P., as a general partner of Concourse VI Associates By: THE LANDMARKS GROUP PROPERTIES CORPORATION, as the sole general partner of Landmark Forty-Two, L.P. By: /s/ -------------------------------- Its:__________________________________ By: /s/ -------------------------------- Its:__________________________________ (CORPORATE SEAL) <PAGE> TABLE OF CONTENTS ----------------- Item Page ---- ---- 1. Premises and Term....................... 1 2. Rent.................................... 3 3. Reimbursement for Increases in Operating Expenses and Taxes...................... 3 4. Delivery of the Premises................ 6 5. Acceptance of the Premises.............. 6 6. Use..................................... 6 7. Tenant's Care of the Premises........... 6 8. Services................................ 7 9. Destruction or Damage to Premises....... 9 10. Default by Tenant; Landlord's Remedies.. 10 11. Assignment and Subletting............... 13 12. Condemnation............................ 14 13. Inspections............................. 14 14. Subordination........................... 14 15. Indemnification and Hold Harmless....... 15 16. Tenant's Insurance...................... 15 17. Remedies Cumulative..................... 16 18. Entire Agreement-No Waiver.............. 16 19. Holding Over............................ 16 20. Headings................................ 17 21. Notices................................. 17 22. Heirs, Successors and Assigns-Parties... 17 23. Attorney's Fees......................... 18 24. Time of Essence......................... 18 25. No Estate in Land....................... 18 26. Security Deposit........................ 18 27. Completion of the Premises.............. 18 <PAGE> 28. Parking Arrangements.................... 18 29. Rules and Regulations................... 18 30. Right to Partially Relocate............. 19 31. Late Payments........................... 19 32. Estoppel Certificate.................... 20 33. Severability and Interpretation......... 20 34. Multiple Tenants........................ 20 35. Force Majeure........................... 20 36. Quiet Enjoyment......................... 20 37. Brokerage Commission; Indemnity......... 20 38. Exculpation of Landlord................. 21 39. Original Instrument..................... 21 40. Georgia Law............................. 21 41. No Recordation of Lease................. 21 42. Hazardous Wastes........................ 21 43. Lease Binding Upon Delivery............. 22 44. Special Stipulations.................... 22 Signature Page.......................... 22 Exhibit "A" - Location of Premises Within Building Exhibit "B" - Space Plan of Premises Exhibit "C" - Work Letter Exhibit "D" - Rules and Regulations Exhibit "E" - Description of the Property Exhibit "F" - HVAC Specifications Exhibit "G" - Cleaning Specifications Exhibit "H" - Refusal Space <PAGE> DEFINITIONS ----------- Defined Term Paragraph ------------ --------- Additional Electrical Equipment. . . . . . . . . . . . .8(b)(iv) Allowance. . . . . . . . . . . . . . . . . . . . . . . .Special Stipulation 6 Armada . . . . . . . . . . . . . . . . . . . . . . . . .37 Building . . . . . . . . . . . . . . . . . . . . . . . .1(a) Commencement Date. . . . . . . . . . . . . . . . . . . .1(b) Deed to Secure Debt. . . . . . . . . . . . . . . . . . .Special Stipulation 10 Fairchild Service. . . . . . . . . . . . . . . . . . . .8(e) First Refusal Space. . . . . . . . . . . . . . . . . . .Special Stipulation 11 Initial Calendar Year. . . . . . . . . . . . . . . . . .3(d) Initial Monthly Rental . . . . . . . . . . . . . . . . .2(a) Initial Operating Costs. . . . . . . . . . . . . . . . .3(a) Landlord . . . . . . . . . . . . . . . . . . . . . . . .Caption Lease. . . . . . . . . . . . . . . . . . . . . . . . . .Caption Lease Year . . . . . . . . . . . . . . . . . . . . . . .1(c) Market Rate. . . . . . . . . . . . . . . . . . . . . . .Special Stipulation 5 Monthly Rental . . . . . . . . . . . . . . . . . . . . .2(a) Mortgagee. . . . . . . . . . . . . . . . . . . . . . . .14(a) Operating Costs. . . . . . . . . . . . . . . . . . . . .3(b) Premises . . . . . . . . . . . . . . . . . . . . . . . .1(a) Property . . . . . . . . . . . . . . . . . . . . . . . .1(d) and Exhibit "E" Rent . . . . . . . . . . . . . . . . . . . . . . . . . .2(c) Renewal Term . . . . . . . . . . . . . . . . . . . . . .Special Stipulation 5 Rules. . . . . . . . . . . . . . . . . . . . . . . . . .6 and Exhibit "D" Services . . . . . . . . . . . . . . . . . . . . . . . .37 Storage Space. . . . . . . . . . . . . . . . . . . . . .1(f) Tenant . . . . . . . . . . . . . . . . . . . . . . . . .Caption Tenant's Share . . . . . . . . . . . . . . . . . . . . .3(c) Term. . . . . . . . . . . . . . . . . . . . . . . . . .1(b) <PAGE> FOR: CONCOURSE VI ------------------ LEASE AGREEMENT --------------- CONCOURSE --------- ATLANTA, GEORGIA ---------------- LANDLORD: CONCOURSE VI ASSOCIATES TENANT: AMERICA'S FAVORITE CHICKEN COMPANY BUILDING: CONCOURSE CORPORATE CENTER VI SUITE: 1700 SQ. FT.: 76,614 RENTABLE SQUARE FEET TERM: TEN (10) YEARS <PAGE> SPECIAL STIPULATIONS ATTACHED TO LEASE AGREEMENT INVOLVING CONCOURSE VI ASSOCIATES (AS "LANDLORD") AND AMERICA'S FAVORITE CHICKEN COMPANY (AS "TENANT") -------------------------------------------------------------------- 1. Premises and Rent. (a) The Premises shall consist of the following: ----------------- Usable Rentable Floor Square Feet Square Feet ----- ----------- ----------- 16 23,216 25,538 17 23,216 25,538 18 23,216 25,538 The Monthly Rental for the Term shall be as follows: Per Rentable Square Foot Annual Lease Year Per Annum Monthly Rental Base Rental ---------- ------------ -------------- ----------- 1 - 5 $17.40 $111,090.30 $1,333,083.60 6 - 7 $22.40 $143,012.80 $1,716,153.60 8 - 9 $25.00 $159,612.50 $1,915,350.00 10 $26.50 $169,189.25 $2,030,271.00 provided, however, that this provision shall not eliminate or be deemed to eliminate Tenant's obligation to pay any other amounts or charges due of Tenant under this Lease, including, but not limited to, the amounts and charges due of Tenant under Paragraphs 3 and 8(c) of this Lease, and Landlord does not waive the right to collect any such sums. (b) The figures set forth above for Monthly Rental and Annual Base Rental have been calculated based on the Premises containing seventy-six thousand six hundred fourteen (76,614) rentable square feet, and such figures shall be adjusted to reflect the actual rentable square feet within the Premises. The rentable square feet within the Premises shall be determined by multiplying (i) the usable area of the Premises, measured and determined in accordance with the American National Standard Method of Measuring Floor Area in Office Buildings of the Building Owners and Manager's Association International (ANSI Z65.1-1980 [approved July 31, 1980]), by (ii) (A) 1.16, for a floor which Tenant leases part, but not all, of; and (B) 1.10, for a floor which Tenant leases in its entirety. 2. Late Payments. Tenant shall be charged, in addition to any amounts ------------- charged under Paragraph 31 of the Lease, interest on any amounts not paid within five (5) days after such payment is due hereunder, interest on the amount of such late payment equal to the lesser of (a) the highest rate of interest ------ permitted by applicable law or (b) the prime rate of interest indicated in the Wall Street Journal from time to time, or, if such index is no longer available, ------------------- some reasonable substitute therefor. 3. Use. (a) In addition to the uses permitted under Paragraph 6 of the --- Lease, the Premises may be used for training <PAGE> purposes as Tenant may require in connection with the business of or the operation of Tenant's corporate headquarters, which uses shall include sales and marketing suites, classroom uses and such other uses expressly contemplated by the plans submitted and consented to by Landlord under the Work Letter. (b) Tenant shall be entitled to keep and maintain a non-cooking snack bar, with vending machines and microwave oven, in the Premises for the use and benefit of Tenant and Tenant's employees, guests and invitees. 4. Commencement Date. The "Commencement Date" shall be August 1, 1993, ----------------- notwithstanding that Tenant may occupy the Premises prior to said date, and the Term shall be for ten (10) full years after said Commencement Date. Notwithstanding said Commencement Date, Tenant may occupy floors of the Premises prior to said date, and Rent shall commence on said floor as of the date Tenant occupies all or any portion of that floor. Tenant shall commence paying Monthly Rental and Tenant's Share of Operating Costs on said floors occupied prior to the Commencement Date at the rate payable in the first (1st) Lease Year. 5. Renewal of Lease. (a) Provided this Lease is then in full force and ---------------- effect and Tenant is not in default under this Lease beyond any applicable grace or cure periods expressly provided for in this Lease, Landlord hereby grants to Tenant two (2) options to renew this Lease for a period of five (5) years each (a "Renewal Term", or collectively the "Renewal Terms"), at a rental rate equal to ninety percent (90%) of the effective rental rate then being offered by landlords to tenants desiring to lease comparable space of comparable height and view and is the size of or comparable to the Premises, in the other comparable first-class buildings with comparable amenities and facilities in the North- Central/I-285/GA 400 submarket and the Buckhead/Lenox submarket of metropolitan Atlanta, Georgia, as currently described in Dorey's Atlanta Office Guide, taking ---------------------------- into account any abatements or other concessions then being offered to such comparable tenants, seeking comparable space, but excluding, for the purposes of determining any such Market Rate under this Special Stipulation #5, the value of any tenant improve-ments or tenant improvement allowance in any other such trans-actions (the "Market Rate"). Such rate shall be initially determined by Landlord. If Tenant desires to renew the Lease, Tenant shall notify Landlord at least fourteen (14) months in advance of the expiration of the Term, or the Renewal Term, as the case may be. Landlord shall make an offer to Tenant based upon the above-described terms at least twelve (12) months prior to the end of the Term or the Renewal Term, as the case may be. Tenant shall have thirty (30) days from the date Landlord makes such offer to either accept or reject such offer. If Tenant fails to respond within such thirty (30) day period, then the Lease shall terminate as of the end of the Term as established herein or the Renewal Term, as the case may be. If Tenant accepts such offer, then the Term or the Renewal Term, as the case may be, shall be extended by said five (5) year period, the rent for such period shall be the rent as offered by Landlord and accepted by Tenant pursuant to the terms and conditions of this Paragraph, and the Lease for the Renewal Term in question shall be otherwise on the same terms <PAGE> and conditions as contained in the Lease (except that there shall be no Allowance for such Renewal Term). (b) If that Tenant rejects such offer within the thirty (30) day period, Tenant may notify Landlord in writing of its intention to submit the issue of Market Rate to arbitration and of the name of the arbitrator selected by Tenant. If Tenant fails to give such notice of its desire to arbitrate within said thirty (30) day period, then this Lease shall expire as of the end of the Term as established herein or the Renewal Term, as the case may be. Within ten (10) days after receipt of such notice by Landlord from Tenant, Landlord shall notify Tenant of the arbitrator selected by Landlord. Within ten (10) days after the appointment of Landlord's arbitrator, the arbitrators so appointed shall jointly appoint a third arbitrator. If such arbitrators are unable to select a third arbitrator within ten (10) days after the appointment of Landlord's arbitrator, then Landlord or Tenant, or both, shall immediately by petition to the Presiding Judge of the Superior Court of Fulton County, Georgia, request the appointment of five (5) persons, each of whom shall be qualified to serve as a third arbitrator, and none of whom shall have any interest in or be in any way affiliated with or related to either Landlord or Tenant as a stockholder, officer, employee or agent of Landlord or Tenant or a relative of any stockholder, officer, agent or employee of Landlord or Tenant. From the five (5) persons so appointed, Landlord and Tenant shall, within ten (10) days after such appointment, alternatively strike two names each, Tenant striking one name first. The remaining person shall act as the third arbitrator. If either Landlord or Tenant shall fail or refuse to appoint an arbitrator within the time provided, then the other party shall petition the then Presiding Judge of the Superior Court of Fulton County, Georgia to appoint an arbitrator for such party and any arbitrator so appointed shall be considered as having been appointed by the party so failing or refusing to appoint an arbitrator. If either party shall fail or refuse within the time provided to strike from the list of the five (5) persons appointed by the Presiding Judge of the Superior Court of Fulton County, then the other party shall proceed to select the third arbitrator from said list. Notwith-standing anything to the contrary set forth in this paragraph, each of the arbitrators selected shall be qualified arbitrators and experienced in the type of issues to be arbitrated. (c) After a third arbitrator has been appointed in accordance with the foregoing paragraph, the arbitrators shall hold such meetings as either Landlord or Tenant, or both, may reasonably request and at such meetings hear and consider any evidence which either Landlord or Tenant, or both, desire to present. Within twenty (20) days after the appointment of the third arbitrator, the arbitrators shall make their final determination deciding the issue of Market Rate. In determining Market Rate for the purposes of this Lease, the arbitrators shall select the Market Rate which is twelve (12) months prior to the month in which the Renewal Term in question is to commence. (d) The determination made by the arbitrator as to the Market Rate shall be in writing and signed by at least two arbitrators and shall be binding upon Landlord and Tenant. <PAGE> (e) Landlord shall pay the fees and expenses of the arbitrator selected by Landlord and Tenant shall pay the fees and expenses of the arbitrator selected by Tenant. The fees and expenses of the third arbitrator, together with any expenses of the arbitration proceeding itself, shall be divided equally between Landlord and Tenant. 6. Allowance. Landlord shall cause the tenant fit-up and finish work in --------- the Premises to be completed in accordance with plans and specifications to be agreed upon by Landlord and Tenant, in their respective reasonable judgment. Landlord shall provide an allowance for the tenant fit-up and finish work in the Premises and for any other actual costs incurred by Tenant in connection with or as a part of the move by Tenant to the Premises or the use by Tenant of the Premises of Forty Three and 50/100 Dollars ($43.50) per usable square foot initially leased by Tenant within the Premises (the "Allowance"). If the costs to complete the tenant fit-up and finish work and for the other actual costs incurred by Tenant in connection with or as a part of the move by Tenant to the Premises or the use in the Premises are less than the Allowance, the difference shall be, up to the amount of Two Hundred Fifty Thousand and No/100 Dollars ($250,000.00), paid to Tenant in a check within thirty (30) days after the Commencement Date, with the remainder of any such unused Allowance being credited against Rent first due from Tenant hereunder. If the costs to complete the tenant fit-up and finish work in the Premises are greater than the Allowance, then the amount of such excess shall be paid by Tenant. 7. Signage. (a) Tenant shall be entitled to install its own graphics and ------- signage in the elevator lobbies of any floor which Tenant leases in its entirety, subject to Landlord's prior consent as to the design, size and color of such graphics, such consent not to be unreasonable withheld or delayed by Landlord. (b) So long as Tenant is not in default under this Lease after any applicable grace or cure periods expressly provided for in this Lease, Tenant shall also have the right to have a 2 foot by 4 foot plaque on the Building's existing, free-standing pylon sign at the entrance to the Building. The graphics on such plaque shall be subject to Landlord's consent, such consent not to be unreasonably withheld or delayed. The cost of such sign shall be paid by Landlord. 8. HVAC Service. (a) Landlord shall make available to Tenant additional ------------ HVAC service for hours other than the Building standard hours of operation. Such HVAC service shall be available to Tenant at a rate of Thirty-Eight and No/100 Dollars ($38.00) per floor per hour, as such rate may be increased from time to time as the costs to provide such service increase. Such service shall be provided without profit to Landlord, but may include charges for administration and overhead for Landlord, and additional wear and tear on equipment and machinery, as Landlord, in its reasonable judgment, determines as appropriate amounts for such charges. Tenant shall provide Landlord with at least twenty-four (24) hours notice of Tenant's desire to use such service, except that Landlord shall use <PAGE> reasonable efforts to provide such service without such advance notice, if Tenant desires such service be provided but is unable to provide at least twenty-four (24) hours' notice of such desire. Tenant shall pay amounts due in connection with such additional HVAC services within ten (10) days after the bill for such services is given to Tenant. (b) Heating, ventilation and air conditioning services will be provided in accordance with the specifications set forth on Exhibit "F" attached ----------- hereto and made a part hereof, but subject to all federal, state and local energy regulations. 9. Holdover. (a) So long as Tenant is not in default under this Lease -------- after any applicable grace or cure periods, Tenant may, in its sole discretion, elect to holdover in the Premises after the expiration of the Term. Tenant shall exercise such election by giving notice of such election at least two (2) months prior to the end of the then expiring Term. In such notice, Tenant shall specify the number of months, up to six (6) months, which Tenant desires to hold over under such circumstances. No such election shall be for a fraction of or less than a full month. If Tenant does exercise this election, then there shall be payments due from Tenant as follows: (i) For the first three (3) months of such holdover, one hundred fifty percent (150%) of the rate of Rent payable by Tenant at the end of the then expiring Term or Renewal Term, as applicable. (ii) For the fourth (4th) fifth (5th) and sixth (6th) months of any such holdover, one hundred seventy-five percent (175%) of the rate of Rent payable by Tenant at the end of the then expiring Term or Renewal Term, as applicable. (iii) For any months of such holdover thereafter, two hundred percent (200%) of the rate of Rent payable by Tenant at the end of the then expiring Term or Renewal Term, as applicable. (b) If there is any holdover in the Premises by Tenant past the expiration or early termination of the Lease, without Landlord's consent, then Tenant shall be a Tenant at sufferance, and there shall be payments due from Tenant of two hundred percent (200%) of the rate of Rent payable by Tenant at the end of the then expiring Term or Renewal Term, as applicable. 10. Ownership of Property. Landlord warrants that Landlord currently owns --------------------- the Property and Building free and clear of any mortgages, deeds to secure debt or other like instruments (collectively as "Deed to Secure Debt"). Notwithstanding the terms and conditions of Paragraph 14 of the Lease, Tenant shall not be required to subordinate to any Deed to Secure Debt subsequently placed on the Property or Building, unless the holder of such Deed to Secure Debt delivers to Tenant a corresponding non-disturbance agreement which provides that as long as Tenant is in full compliance with the terms and conditions of the Lease, Tenant's use and <PAGE> occupancy of the Premises shall not be disturbed by the holder of any such Deed to Secure Debt. 11. Expansion by Tenant; First Refusal Space. Provided this Lease is in ---------------------------------------- full force and effect and Tenant is not in default under this Lease after any applicable grace or cure periods expressly provided for in the Lease, Tenant shall have a right of first refusal to lease any available and unencumbered space on the 15th floor of the Building and on the 19th floor of the Building, in the locations indicated on Exhibit "H" by this reference incorporated herein ----------- (the "First Refusal Space"), upon and subject to the following terms and conditions: (a) Should Landlord receive an offer to lease all or a portion of the Refusal Space upon terms and at a rental rate acceptable to Landlord, Landlord shall give notice to Tenant of Landlord's desire to lease the portion of the Refusal Space at issue. Tenant shall then have ten (10) business days after receipt of Landlord's notice to respond as to whether Tenant desires to lease the Refusal Space at issue. If Tenant elects not to lease such space or fails to respond within the ten (10) business day period, then Landlord shall be free to lease such space in question to the third party offeror for a period of twelve (12) months following the date of Tenant's receipt of the above-described written notice. If Landlord has not leased such space to such third party within the twelve (12) month period, Landlord shall have the right to give Tenant an additional written notice to be received by Tenant not less than thirty (30) days prior to the expiration of the twelve (12) month period, and provided that Landlord is then negotiating in good faith with such prospective third party, then Landlord shall be entitled to a thirty (30) day extension of the twelve (12) month negotiating period. Should such third party not lease such space in question, then Tenant's first refusal rights will be fully reinstated. (b) If Tenant elects to lease the Refusal Space in question, the rental for such Refusal Space shall be the rental rate then in effect payable by Tenant on a per square foot per annum basis for the Premises. (c) The rental for the Refusal Space take by Tenant shall commence on the earlier to occur of: (i) one hundred twenty (120) days after the date of Tenant's notice of election to lease the Refusal Space in question; or (ii) the date Tenant first occupies the Refusal Space in question taken by Tenant. Except as expressly set forth to the contrary herein, all of the terms and conditions of this Lease shall apply to the Refusal Space in question taken by Tenant, and from and after the date Tenant commences paying rental for the Refusal Space in question taken by Tenant, the Refusal Space in question taken by Tenant shall be deemed to be a part of the Premises, provided, however, that Tenant shall not receive any Allowance with respect to the Refusal Space in question taken by Tenant except as set forth below. (d) An allowance of Forty-One and 50/100 Dollars ($41.50) per usable square foot within the Refusal Space shall be pro rated by <PAGE> multiplying such amount by a fraction, the numerator of which is the number of months left in the Term commencing with the month Tenant commences paying Monthly Rental on the Refusal Space in question, and the denominator of which shall be one hundred twenty (120). (e) With respect to the space on the 19th floor, Tenant acknowledges that an entity by the name of Lexmark International, Inc. ("Lexmark") currently leases 12,581 rentable square feet, more or less, on said floor, and that Lexmark has certain rights, prior to the rights of Tenant, to lease a portion of said floor (consisting of 3,000 rentable square feet, more or less) under an option, and to lease the remainder of said floor under a right of first refusal. 12. Operating Costs. (a) Notwithstanding the terms and conditions of --------------- Paragraph 3 of the Lease, except as described below, in no event shall Tenant's Share of Operating Costs for any year exceed one hundred five percent (105%) of Tenant's Share of Operating Costs for the prior year; provided, however, and notwithstanding the above limitation, that for the purposes of determining whether or not the aforesaid limit on increases in Tenant's Share of Operating Costs from year to year is exceeded or not, the components of Operating Costs related to taxes and assessments attributable to the Property or Building or its operation, utilities costs to the Building, Property or Premises and insurance premiums related to or payable in connection with the Building, Property or Premises shall not be considered or factored in to such determination, and there shall be no limit on the amounts of Operating Costs related to taxes, utilities and insurance premiums for the Building, Property or Premises that can be passed on by Landlord to Tenant or that shall be due of Tenant at any time and from year to year, except as expressly provided for in this Lease. (b) Exclusions from Operating Costs: ------------------------------- The following shall not be charged or included as a part of Operating Costs: (i) Replacement of capital items (except those expenditures referred to above); (ii) Specific costs billed to and paid by specific tenants or other third parties; (iii) Depreciation; (iv) Principal, interest, and other costs directly related to financing, or ground rents paid with respect to, the Building or Property; (v) The cost of any repairs or maintenance paid by the proceeds of insurance policies carried on the Property or Building; (vi) The wages and salaries of any supervisory or management employee of Landlord not involved in <PAGE> the operation or maintenance of the Property or Building; (vii) Legal, accounting and other professional fees incurred by Landlord arising from a sale or financing of the Building or the Property; (viii) The cost of membership in any political organization; (ix) The cost of any political contributions; (x) Brokerage commissions, leasing commissions, legal fees, damages, costs and other expenses incurred for or in connection with leasing or improving space to or for or litigating with tenants; (xi) Landlord's cost of electricity or other services sold to tenants for which Landlord is reimbursed under the lease with that tenant; (xii) Costs incurred because Landlord or another identified tenant violated any lease; (xiii) Items and services for which Tenant reimburses Landlord or pays third parties or that Landlord provides selectively to one or more tenants in the Building other than Tenant in a substantial and material manner without reimbursement or which are provided or performed to a materially greater extent or in a more favorable manner than that available to or furnished to Tenant; (xiv) Costs incurred due to the violation or failure of Landlord to timely comply with or pay amounts due with respect to any contractual requirement, ordinance, governmental rule, regulation or law; (xv) Costs of any professional or trade groups, except for any costs associated with professional or trade groups which enhance the qualifications, knowledge or experience related to or which primarily deal with buildings or general commercial real estate of such members, such as, by was of illustration but not limitation, BOMA, IREM and the ULI; (xvi) The portion of any cost paid to an entity affiliated with Landlord for the provision of goods or a service for the Building which is above the cost which would have been paid to a party not affiliated with Landlord in an arms-length transaction for the provision of similar quality goods or service; <PAGE> (xvii) Advertising and marketing expenditures in connection with the leasing of the Building; (xviii) Auditing and legal fees unrelated to the determination of Operating Costs for the Building and each tenant's pro rata share thereof, and the costs of statements and reports rendered to Landlord or its partners exclusive of statements and reports described above. (c) At all times during all terms of this Lease, Tenant shall have the full right to audit and contest all of Landlord's estimates and actual statements of Operating Costs incurred for the Premises and for the Building. If after audit it is determined that Operating Costs for the year in question varied to Tenant's detriment by more than five percent (5.0%) of the Operating Costs shown on the Operating Costs statement for the year in question, Landlord shall pay all of Tenant's expenses incurred in the audit. (d) Notwithstanding anything to the contrary contained in the Lease, if Tenant installs an air conditioning unit to be used to cool Tenant's computer room, such air conditioning unit shall be separately metered from the Building and Premises. Tenant shall pay for the cost of such submeter and the electricity used for such air conditioning unit. (e) If Landlord deems such action appropriate and reasonable, in Landlord's sole discretion, Landlord shall take reasonable steps to protect against any increase in real estate or ad valorem taxes on the Building and to protest the inclusion of the Building within, and the amount of, any assessment levied on the Building, including without limitation, Landlord's timely response to any notice of the assessed value of the Building or the application thereto of an assessment or charge and entering into arbitration thereof at reasonable costs. 13. Assignment and Subletting. Tenant shall have the right to assign the ------------------------- Lease or sublet the Premises, or any part thereof or otherwise permit the occupancy of the Premises, without Landlord's consent, but subject to Landlord's rights to notice and prohibition contained herein, to any parent, subsidiary, affiliate or controlled corporation or to corporation which Tenant may be converted or which it may merge. Tenant shall have the obligation to notify Landlord of its intent of any such arrangement, and if Landlord reasonably determines that the proposed assignee, sublessee or occupant is engaged in a business which would materially interfere with the operation of the Property or that permitting the assignment, subletting or occupancy would cause a violation by Landlord of its obligations under any lease covering a portion of the Property, Landlord shall have the right to prohibit such arrangement based upon the issue of the business of the proposed assignee, sublessee or occupant or the compatibility of the proposed assignee, sublessee or occupant with the businesses in the Building. <PAGE> 14. Landlord's Indemnity. Landlord hereby agrees to indemnify and hold -------------------- Tenant harmless from and against any and all loss, cost or damage incurred by Tenant arising out of the willful misconduct or gross negligence of Landlord, its agents, employees or contractors. In no event shall Tenant ever be deemed to release or indemnify Landlord against Landlord's willful misconduct or negligence notwithstanding any other provision of this Lease to the contrary. 15. Force Majeure. Landlord and Tenant shall be excused for the period of ------------- any delay and shall not be deemed in default with respect to the performance of any of the terms, covenants and conditions of this Lease when prevented from so doing by causes beyond the respective control of Landlord and Tenant, which shall include, but not be limited to, all labor disputes, governmental regulations or controls, fire or other casualty, inability to obtain any material or services, or acts of God; provided, however, that an inability to pay money shall not under any circumstances or for any reason be or be deemed to be an event beyond the control of Tenant. 16. Condition of Premises. (a) The taking of possession of any portion of --------------------- the Premises by Tenant shall be conclusive evidence that Tenant accepts such portion of the Premises "as is" and that said portion of the Premises and the Building were in good and satisfactory condition for the use intended at the time such possession was taken, subject to any "punch-list" items agreed upon by Landlord and Tenant which must be remedied after Tenant's acceptance of the Premises, and subject to any latent defects in such portion of the Premises; provided, however, Tenant shall be deemed to have accepted such portion of the Premises, subject to all matters not disclosed in writing with specificity by Tenant to Landlord (expressly including latent defects) within twelve (12) months of when Tenant occupies the Premises. (b) There shall be no obligation of Tenant to remove any of the improvements included as a part of the initial Tenant Improvements performed in accordance with the Tenant Improvement Construction Documents, and, except with respect to floor penetrations of in excess of 50 square inches (for which there shall be no implied or deemed consent), there shall be no obligation of Tenant to remove any of the improvements included as a part of any Tenant Improvements performed in accordance with the Tenant Improvement Construction Documents gen