Georgia-Atlanta-Six Concourse Parkway Lease - Concourse VI Associates and America's Favorite Chicken Co.
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:
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1. PREMISES AND TERM
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(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
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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
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located in that portion of the Building shown on Exhibit "A", attached hereto
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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
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midnight ten (10) years thereafter, unless sooner terminated as
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herein provided. See Special Stipulation #5. This Lease shall be effective and
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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
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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
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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)
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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
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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
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(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
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(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
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(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.
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(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
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# 12(b).
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(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.
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(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
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See Special Stipulation #4.
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5. ACCEPTANCE OF THE PREMISES
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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
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#13.
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6. USE
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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
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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.
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7. TENANT'S CARE OF THE PREMISES
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(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
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Special Stipulations #16(b) and #19.
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(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
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(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.
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(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
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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.
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(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.
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9. DESTRUCTION OR DAMAGE TO PREMISES
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(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.
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10. DEFAULT BY TENANT; LANDLORD'S REMEDIES
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(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
generated with respect to any space leased hereunder, to which Landlord has had
the opportunity to review and consent to.
17. Repairs by Tenant. Tenant will not, without Landlord's prior consent,
-----------------
which consent shall not be unreasonably withheld or delayed by Landlord, make
alterations, additions or improvements to the Premises in excess of Twenty-Five
Thousand and No/100 Dollars ($25,000.00) for any single alteration, addition or
improvement, nor do anything to or on the Premises which will increase the rate
of fire or other insurance on the Building or the Property, nor do anything that
shall affect the structural integrity or HVAC or other systems of the Building.
With respect to any alteration for which Landlord's consent is not required
hereunder, Tenant shall, nonetheless, deliver to Landlord as-built plans and
specifications
<PAGE>
with respect to any such work within thirty (30) days after the completion of
such work. 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
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 not caused by Tenant, and condemnation excepted, unless Landlord has
agreed in writing, 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.
18. Condemnation. (a) If all of 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 virtue of 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 shall vest, and any Rent paid for 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, as determined by the Architect for the Building. In
either event, Landlord shall be entitled to, 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 separate claim in any such condemnation proceeding, action or
ruling for Tenant's moving expenses, loss of goodwill and the unamortized value
of leasehold improvements in the Premises actually paid for by Tenant or any
other lawful claim (excluding Tenant's leasehold interest), 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.
(b) If there is a condemnation where more than fifteen percent (15%)
of the Premises are taken, Tenant shall have the right to terminate this Lease.
Such termination right shall be exercised by Tenant within sixty (60) days of
the date of Tenant's notice of such termination, or Tenant shall have no further
right to terminate this Lease for such cause.
19. Interruption of Services. If services to the Premises, or any portion
------------------------
thereof, as described herein which are provided by, through or under Landlord
are interrupted, such interruption of services materially interferes with
Tenant's use, occupancy and enjoyment of the Premises or the portion thereof, as
applicable, and the provision of such service (and the interruption thereof) is
within the reasonable control of Landlord, then if such interruption lasts in
excess of five (5) consecutive business days, Tenant may abate payments of its
Monthly Rental (but not any of the charges due from Tenant under Paragraph 3
herein, except payments for those services not being provided during the
aforesaid period, and thereby creating the rights in Tenant provided in this
Paragraph) for the portion of the Premises in question after said fifth (5th)
consecutive business day until such service is once again provided to
<PAGE>
the portion of the Premises in question at a level which does not materially
interfere with Tenant's use or occupancy of the portion of the Premises in
question.
20. Tenant's Self Help Remedy. (a) If Landlord fails to keep or perform
-------------------------
its obligations under the Lease with respect to repairs of the Premises required
under the Lease to be made by Landlord, or with respect to the prosecution and
pursuit of the Substantial Completion of Tenant Improvements once a Construction
Contract has been duly executed by a Contractor, if such failure materially and
adversely affects Tenant's ability to use the Premises for normal business
operations, and if there is no event of default then in existence, then, if
Landlord or a party acting under or through Landlord does not commence to cure
such failure within ten (10) business days after the receipt from Tenant by
Landlord and any mortgagee of which Tenant has been given notice, indicating
with specificity the nature of the failure, and Landlord or a party acting under
or through Landlord does not diligently continue to cure such failure with due
diligence, and without waiving or releasing Landlord from any obligation, then
Tenant may (but is under no obligation to), unless and until Landlord does
commence to cure or diligently continue to attempt to cure such failure,
undertake (after notice from Tenant to Landlord and two (2) days opportunity to
cure by Landlord or a party acting under or through Landlord) to perform such
obligation, and all sums actually paid or incurred by Tenant and all necessary
and incidental costs and expenses (but not costs to improve the Premises beyond
rectifying Landlord's failure), including reasonable expenses incurred by Tenant
in making such payment or performing such obligation, together with interest
thereon at the prime rate of interest quoted from time to time to time by Trust
Company Bank, main branch, Atlanta, Georgia, plus one (1%) percent interest per
annum, but not to exceed thirteen (13%) percent per annum, from the date the
payment in question is made by Tenant until the date the payment in question is
reimbursed to and received by Tenant, shall be paid by Landlord to Tenant within
thirty (30) days after demand, and if such sum is not so paid by Landlord,
Tenant shall have the right and option to offset such payment or failure to make
payment against any Rent, or any other amounts thereafter payable under the
Lease, or (ii) Tenant may pursue any other remedies available to Tenant at law
or in equity to collect payment and/or cause Landlord to cure such failure. Any
contractors employed by Tenant hereunder shall be reputable contractors and
Tenant upon completion of such work shall provide appropriate lien waivers to
Landlord. Landlord shall have the right to dispute costs incurred by Tenant
under this Paragraph.
(b) In effecting a cure in connection with Tenant's rights hereunder,
Tenant shall take precautions that a reasonably prudent building manager would
take to avoid any interference with other tenants in the Building or the
Building systems.
(c) In addition to and not in lieu of the indemnity provided in the
Lease, Tenant shall indemnify Landlord and hold Landlord harmless from and
against any loss, cost, damage or expense, including, but not limited to, court
costs and reasonable attorneys fees, incurred by Landlord as a result of or in
connection with
<PAGE>
Tenant's exercise of Tenant's remedies hereunder which results in a claim made
against Landlord.
21. Insurance. (a) If Landlord believe activities of Tenant in the
---------
Building may or will cause increases in insurance rates applicable to Landlord's
insurance on the Building, Landlord shall provide Tenant with thirty (30) days
prior notice of such belief and the specific activity involved, and Tenant shall
be entitled to cease or otherwise cure any such activity within such period and
thereby avoid any charge for any such increase; provided, however, that Tenant
shall not be required to comply with any requirement which is not a valid legal
requirement of Landlord's insurer. Use of the Premises for general office
purposes shall not increase Landlord's insurance rates if such operation of the
Premises is conducted in accordance with applicable law.
(b) Landlord shall have the right to self-insure as to any risks
associated with the Building or Property. If Landlord does so self-insure, and
if there is a claim or casualty, then Tenant shall be entitled to the same
limitations on claims against Tenant as Tenant would have had, had Landlord
carried a commercially typical and reasonable all-risk insurance policy covering
the risk in question, with a waiver of subrogation contained in Paragraph 16 of
the Lease.
22. Telephone Availability. Landlord represents that the Building is
----------------------
adequately constructed for Tenant to obtain, without undue or unusual cost and
expense to Tenant, telephone service.
23. Landlord's Standard of Care. Landlord shall maintain in first-class
---------------------------
order, condition and repair and provide security and otherwise operate the
Building in all respects at a level and standard at least equal to the level and
standard kept by other first-class mixed-use office projects in the north
central Perimeter market of Atlanta, Georgia, the structural and common portions
of the Building, including, without limitation, the Building shell, roof, roof
membrane, foundation, floors, plate glass and exterior walls as well as the
heating, ventilation, plumbing, electrical, elevator and other Building systems,
and all common areas in the Building, as well as any exterior landscaping and
parking areas, and Landlord shall be responsible for all repairs in the Premises
(excluding normal wear and tear) except to the extent the need for any such
repair arises as a result of Tenant's negligence or misconduct.
24. Zoning. Landlord represents and warrants to Tenant that as of the
------
date of this Lease the Building complies with all applicable zoning, building,
land use, or other laws, ordinances, rules or regulations of any governmental
authority, whether federal, state or local, having jurisdiction over the
Building.
25. Hazardous Wastes. Landlord warrants that Landlord did not use in the
----------------
construction of the Building any materials which are currently built into or are
a part of the Building and which are built into or are a part of the Building in
quantities which would be hazardous to the health of Tenant's employees.
<PAGE>
26. Defaults and Late Payment Charges; Late Payments of Rent. (a)
--------------------------------------------------------
Notwithstanding the terms and conditions of Paragraph 10(a)(i) of the Lease, it
shall not be an event of default under the Lease unless and until the Rent
payable under the Lease or any other sum of money due of Tenant hereunder is not
paid within ten (10) days of the date notice of such late payment is received by
Tenant; provided, however, if more than two (2) payments due of Tenant hereunder
in any one (1) calendar year are not made until after notice of such late
payment is received by Tenant, then it shall be an event of default hereunder by
Tenant if any subsequent payments due of Tenant hereunder in the same calendar
year are not made within ten (10) days of the date when due.
(b) Notwithstanding the terms and conditions of Paragraph 31 of the
Lease, there shall be no late fee due under the Lease unless and until the Rent
payable under the Lease or any other sum of money due of Tenant hereunder is not
paid within ten (10) days of the date notice of such late payment is received by
Tenant; provided, however, if more than one (1) payment due of Tenant hereunder
in any one (1) calendar year is not made until after notice of such late payment
is received by Tenant, then such late fee shall be due if any subsequent payment
due of Tenant hereunder in the same calendar year is not made within five (5)
days of the date when due.
27. Cleaning Specifications. Attached hereto as Exhibit "G", and by this
----------------------- -----------
reference incorporated herein are the cleaning specifications for the Building.
28. Access to Premises. Subject to security measures imposed by Landlord
------------------
from time to time, and any casualty or condemnation affecting the Building,
Tenant shall have access to the Premises on a 24 hour per day 7 day per week
basis.
29. Casualty; Alternate Space. If there is a casualty that precludes
-------------------------
Tenant from occupying all or a portion of the Premises and the Lease is to
continue and be in effect after the casualty, then Landlord shall use reasonable
efforts to provide Tenant with alternate built-out, unoccupied space during such
period in which Tenant is not occupying the Premises, at such reasonable and
equitable rental rate as Landlord and Tenant shall agree.
30. Abatement and Vacation of the Premises. Notwithstanding the terms and
--------------------------------------
conditions of Paragraph 10 of the Lease, if Tenant has abandoned or vacated the
Premises or any full floor thereof for in excess of ninety (90) days (after
Tenant has notified Landlord of Tenant's intent to abandon or vacate for up to
ninety (90) days), then, if such notice has been given by Tenant, Landlord's
sole remedy shall be in such instance to terminate the Lease as to that floor or
floors, or the Premises, whichever is applicable (which Landlord shall have the
option, but not the obligation to do). In the event of such termination, Tenant
shall not be liable for damages for such early termination of the Lease;
provided, however, in no event shall such termination eliminate or otherwise
limit any claims which Landlord might have against Tenant for any acts or
omissions occurring prior to the date of such termination. Except for such
possible termination by Landlord, Tenant shall not otherwise be in
<PAGE>
default hereunder and this Lease shall remain in full force and effect as to the
remainder of the Premises not terminated.
<PAGE>
EXHIBIT "A"
-----------
LOCATION OF PREMISES WITHIN BUILDING
To Be Attached.
<PAGE>
EXHIBIT "B"
-----------
SPACE PLAN OF PREMISES
To Be Attached
<PAGE>
EXHIBIT "C"
-----------
WORK AGREEMENT FOR
COMPLETION OF THE PREMISES
------------
Landlord and Tenant executed a Lease for Premises on the sixteenth (16th),
seventeenth (17th) and eighteenth (18th) floors of the Building and hereby
attach this Work Agreement to said Lease as Exhibit "C" thereto.
-----------
In order to induce Tenant to enter into the Lease (which is hereby incorporated
by reference) and in consideration of the mutual covenants herein contained,
Landlord and Tenant agree as follows:
ARTICLE 1 - DEFINITIONS
-----------------------
The following terms shall have the meanings described below. Terms not defined
herein shall have the meaning given in the Lease:
Allowance shall mean Forty-Three and 50/100 Dollars ($43.50) multiplied by
---------
the usable square feet within the Premises initially leased by Tenant
(69,648 usable square feet).
Base Building Improvements shall mean all Building Standard improvements to
--------------------------
be constructed or installed in the Building, specified in Section 2.01
hereof.
BOMA shall mean the standards and practices for measurement of office
----
buildings, set forth in the American National Standard Method of Measuring
Floor Area in Office Buildings of the Building Owners and Managers
Association International (ANSI Z65.1 - 1980 [approved July 1, 1980, as
modified]).
Building Plans and Specifications shall mean the final drawings and
---------------------------------
specifications for Base Building Improvements.
Building Standard Materials shall mean such materials described in the
---------------------------
Building Plans and Specifications, or materials of comparable quality as
may be substituted therefor by Landlord. Attached hereto as Exhibit "C-1",
-------------
and by this reference incorporated herein, is the price list for Building
Standard Materials. Except with respect to Building Standard Hardware and
all items pre-installed by Landlord as listed on Exhibit "C-1", Tenant may,
-------------
but is not obligated to, purchase the Building Standard Materials, in any
quantity which Tenant elects, at the prices shown on Exhibit "C-1". Tenant
-------------
shall be obligated to buy the Building Standard Hardware and all items pre-
installed by Landlord at the price specified in Exhibit "C-1". Tenant may
-------------
also be obligated to utilize and pay for
<PAGE>
certain other Building Standard Materials in accordance with and subject to
Section 4.02(c) herein.
Contractor shall mean the party selected in accordance with Article 6
----------
herein to do the Tenant Improvements.
Change Order shall mean any material alteration, substitution, addition or
------------
change to or in the Tenant Space Plans or Tenant Improvement Construction
Documents requested by Tenant after the same have been consented to by
Landlord.
Completion Date shall mean, as to any floor of the Premises, the date of
---------------
Substantial Completion of Tenant Improvements in accordance with the Tenant
Improvement Construction Documents (excepting the Punchlist Items) for the
floor in question.
Construction Contract shall mean the agreement to be entered between Tenant
---------------------
and Contractor for the construction of the Tenant Improvements.
Punchlist Items shall mean those items not completed in the Premises at the
---------------
time of the Substantial Completion, as identified in a written list
prepared by Tenant's Architect, which do not substantially interfere with
Tenant's use or enjoyment of the Premises.
Substantial Completion or Substantially Complete shall be as described in
---------------------- ----------------------
Section 4.05 hereof.
Tenant's Costs shall mean the aggregate of all costs and expenses related
--------------
to the Tenant Improvements in excess of the Allowance.
Tenant Improvements shall mean all improvements constructed or installed in
-------------------
or on the Premises in accordance with the Tenant Improvement Construction
Documents.
Tenant's Architect shall mean Smallwood, Reynolds, Stewart, Stewart &
------------------
Associates Architectural Services.
Tenant Improvement Costs shall mean the aggregate cost for the Tenant
------------------------
Improvements, approved by Tenant in accordance with Section 4.01 hereof,
together with the cost of any Change Orders as provided in Section 4.05
hereof.
Tenant Improvement Construction Documents shall mean the working drawings,
-----------------------------------------
specifications and finish schedules for the Tenant Improvements prepared by
Tenant's Architect and consented to by Landlord in accordance with Article
3 and Section 4.05 hereof.
<PAGE>
Tenant Space Plans shall mean the schematic presentation of the Premises
------------------
prepared by Tenant's Architect and consented to by Landlord in accordance
with Article 3 and Section 4.05 hereof.
Working Day shall mean the period from 9:00 A.M. until 5:00 P.M. on any
-----------
Monday through Friday, excluding federal and Georgia state holidays. By way
of illustration, any period described in this Work Agreement as expiring at
the end of the third (3rd) Working Day after receipt of a document, then:
(i) if receipt occurs at 9:01 A.M. on Monday, said period shall expire at
5:00 P.M. on the following Thursday; and (ii) if receipt occurs at 4:59
P.M. on Wednesday, the period shall expire at 5:00 P.M. on the following
Monday.
ARTICLE 2. BASE BUILDING CONDITION
-----------------------------------
Section 2.01 Base Building Improvements
-----------------------------------------
The Premises shall be improved by Landlord at no cost to Tenant with the Base
Building Improvements set forth in this Article 2.
Landlord shall provide the following Base Building Improvements:
1. Building Standard heating, ventilation and air conditioning systems
installed in accordance with the Building Plans and Specifications,
including at least one air handling unit in a mechanical room on each
floor, with primary sheetmetal distribution loop and PIU/VAV units
installed in place. PIU units shall have the linear diffusers and flexible
ducts installed at perimeter.
2. Building Standard automatic fire sprinkler system throughout the Premises,
located as required by the applicable National Fire Protection Association
codes, affixed to the structure and ready for extension and/or relocation
so as to accommodate Tenant's partition plan. Landlord shall also furnish
and install the Building Standard fire protective alarm and voice
communications systems system (including speakers) in the public areas in
compliance with all applicable codes, which alarm and voice communications
system shall include provision for Tenant installation of additional
speakers, if required by Tenant's layout, throughout the floor.
3. One (1) Building Standard drinking fountain per floor.
4. Building Standard ladies' and men's toilets that include wall-mounted
fixtures, ceiling-mounted toilet partitions, vanity tops and tile floors
and wet walls.
5. One (1) Building Standard janitorial closet per floor.
6. Building Standard electrical equipment necessary to provide base Building
electrical service including the main electrical
<PAGE>
switch gear, buss duct, lighting/power panels and lighting control points
for public areas.
7. Building Standard full-height (unless otherwise specified by applicable
codes) doors of first quality, heavy-duty frames installed on all
mechanical, electrical, telephone and janitors' rooms, in addition to all
stairwells. Door closers and/or locking devices will be installed on core
area doors where required by applicable codes. There shall also be
Building Standard graphics and signage available in the core elements of
the Building.
8. Building Standard stairwell (painted hand rails, all exposed metal, walls
and ceilings) between all floors contained within the Premises.
9. Building Standard exit signs in the public areas of the Building as
required by code, including emergency power requirements for exiting.
ARTICLE 3. TENANT SPACE PLANS AND TENANT
-----------------------------------------
IMPROVEMENT PLANS AND SPECIFICATIONS
------------------------------------
Section 3.01 Schedule for Preparation
--------------------------------------
Tenant shall contract with Tenant's Architect for the preparation of the Tenant
Space Plans and Tenant Improvement Construction Documents. Tenant Space Plans
and Tenant Improvement Construction Documents for the Tenant Improvements to be
constructed in the Premises shall be prepared by Tenant's Architect and
consented to by Landlord as provided hereinbelow. Such Tenant Space Plans shall
be prepared and sealed by an architect licensed in the State of Georgia.
1. As soon as reasonably possible (but in no event later than January 15,
1993), Tenant's Architect shall prepare and deliver to Landlord Tenant
Space Plans.
2. By the end of the third (3rd) full Working Day after receipt of the Tenant
Space Plans, Landlord shall review and resubmit the same to Tenant's
Architect, either with Landlord's consent or with Landlord's comments
thereto.
3. By the end of the third (3rd) full Working Day after receipt of Landlord's
comments to the Tenant Space Plans, Tenant's Architect shall resubmit to
Landlord the Tenant Space Plans with such changes or information as
requested by Landlord.
4. This process described in Section 3.01(1),(2) and (3) shall continue until
Landlord has satisfied itself that such proposed Tenant Space Plans are
acceptable, but once Tenant Space Plans
<PAGE>
have been resubmitted to Landlord, Landlord shall confine Landlord's
comments thereupon only to the changes made by Tenant or the changes
requested by Landlord to the prior submission of Tenant Space Plans, but
not made by Tenant. Once Landlord has satisfied itself that such proposed
Tenant Space Plans are acceptable, in accordance with the above, Landlord
shall so notify Tenant, and the Tenant Space Plans as so consented to by
Landlord shall constitute the final Tenant Space Plans. When Landlord gives
such final consent, Landlord shall notify Tenant of the amount of time
Landlord estimates, in Landlord's reasonable judgement, Substantial
Completion of Tenant Improvements within the portion of the Premises shown
on such Tenant Space Plans will require.
5. As soon as reasonably possible after final consent to the Tenant Space
Plans, Tenant's Architect shall prepare and deliver to Landlord the
prepared Tenant Improvement Construction Documents; provided, however that
the engineering drawings for the Premises shall be prepared by an engineer
engaged by Landlord.
6. By the end of the third (3rd) full Working Day after receipt of the Tenant
Improvement Construction Documents, Landlord shall review and resubmit the
same to Tenant's Architect, either with Landlord's consent or with
Landlord's comments thereto.
7. By the end of the third (3rd) full Working Day after receipt of Landlord's
comments to the Tenant Improvement Construction Documents, Tenant's
Architect shall resubmit to Landlord the Tenant Improvement Construction
Documents with such changes or information as requested by Landlord.
8. This process described in Section 3.01(5), (6) and (7) shall continue until
Landlord has satisfied itself that such proposed Tenant Improvement
Construction Documents are acceptable, but once Tenant Space Plans have
been resubmitted to Landlord, Landlord shall confine Landlord's comments
thereupon only to the changes made by Tenant or the changes requested by
Landlord to the prior submission of Tenant Improvement Construction
Document, but not made by Tenant. Once Landlord has satisfied itself that
such proposed Tenant Improvement Construction Documents are acceptable in
accordance with the above, Landlord shall so notify Tenant, and the Tenant
Improvement Construction Documents as so consented to by Landlord shall
constitute the final Tenant Improvement Construction Documents for the
Tenant Improvements.
9. Any approval or consent by Landlord of the Tenant Space Plans, the Tenant
Improvement Construction Documents, or other items submitted by Tenant or
Tenant's Architect (expressly excluding the engineering drawings) to and/or
reviewed by Landlord pursuant to this Work Agreement shall be deemed to be
strictly limited to an acknowledgment of approval or consent by Landlord
<PAGE>
thereto and shall not imply or be deemed to imply any representation or
warranty by Landlord that the design is safe or structurally sound or will
comply with any legal or governmental requirements. Any deficiency,
mistake or error in design (expressly excluding the engineering drawings),
although the same has the consent or approval of Landlord, shall be the
sole responsibility of Tenant and Tenant's Architect, and Tenant shall be
liable for all costs and expenses which may be incurred and all delays
suffered in connection with or resulting from any such deficiency, mistake
or error in design.
ARTICLE 4. CONSTRUCTION OF TENANT IMPROVEMENTS
-----------------------------------------------
Section 4.01 Timing of Drawings for Tenant Improvements
--------------------------------------------------------
Attached hereto as Exhibit "C-2", by this reference incorporated herein, is a
-------------
proposed schedule (the "Tenant Improvement Schedule") of timing of the Tenant
Space Plans, Tenant Improvement Construction Documents and Tenant Improvements.
<PAGE>
Section 4.02 Pricing of Tenant Improvements
--------------------------------------------
(a) Within the time periods specified above, Tenant shall obtain a price
proposal for the Tenant Improvements from Contractor. Should Tenant desire to
seek adjustments of such price proposal, Tenant shall work promptly with
Tenant's Architect and Contractor to alter the Tenant Improvement Construction
Documents necessary to cause the price quotation based thereon to be acceptable
to Tenant and to establish Tenant Improvement Costs.
(b) Included in the pricing for the Tenant Improvements shall be the cost of
those Building Standard Materials which Tenant is obligated to purchase under
this Work Agreement, which shall be purchased by Tenant in appropriate
quantities for the Premises, at the rates set out in Exhibit "C-1". The cost of
-------------
such Building Standard Materials shall be charged against the Allowance, to the
extent available.
(c) If Tenant has, as a part of any specifications for the Tenant Improvements,
designated Building Standard Materials or a standard that allows for equivalent
quality items and would permit the use of Building Standard Materials, Landlord
shall have the right, at Landlord's option and in Landlord's sole discretion, to
sell those Building Standard Materials to Tenant at the price given for such
item (on a unit cost basis) by the bidder selected to perform that portion of
the work which will be using the Building Standard Materials in question. Any
such costs shall be charged against the Allowance, to the extent available.
Section 4.03 Construction of Tenant Improvements.
-------------------------------------------------
Tenant will enter into a Construction Contract with Contractor to construct
the Tenant Improvements. Occupancy by Tenant (or Contractor) merely for the
purpose of completing the Tenant Improvements shall not be deemed occupancy for
the purposes of Special Stipulation 4 of the Lease.
Section 4.04 Landlord Delay
----------------------------
If there is delay in achieving Substantial Completion of Tenant's Improvements
or any part thereof as a result of or in connection with Landlord's failure to
respond within any of the time periods in which Landlord is to respond herein,
to the extent such failure actually causes a delay such that the Certificate of
Occupancy for a floor is delivered after the Commencement Date for that floor,
then such shall be a "Landlord Delay", and there shall be a day of abatement of
Monthly Rental after the Commencement Date for the floor in question for each of
such day of Landlord Delay.
Section 4.05 Completion of Premises
-------------------------------------
<PAGE>
A. The Premises shall be substantially completed, as to any floor of the
Premises, and Substantial Completion shall have occurred, as to any
floor of the Premises, upon the following:
(i) Tenant Improvements shall have been completed as to the floor of
the Premises in question, in substantial compliance with the
Construction Contract, except for Punch List Items; and
(ii) A certificate of occupancy for the floor of the Premises in
question has been obtained;
(iii) All access and facilities necessary to Tenant's occupancy of the
floor of the Premises in question have been installed and are in
good operating order.
provided however, that, if and to the extent compliance with any of the
conditions set forth in clauses (i), (ii) and (iii) above would have occurred
earlier but for any days of Landlord Delay, then compliance with such condition
shall be deemed to have occurred on the date it would have occurred but for
Landlord Delay.
B. Tenant may take and occupy the Premises over a time period. A
Commencement Date Agreement (with an Acceptance of Premises) in the form
attached hereto as Exhibit "C-3", and by this reference incorporated herein,
-------------
modified as appropriate for the floors of the Premises in question, shall be
executed by Landlord and Tenant at the time of occupancy of any floor by Tenant
hereunder. Tenant shall be deemed to have taken possession of a part of the
Premises for use and occupancy (herein called actual possession) when any
personnel of Tenant or of anyone claiming under or through Tenant shall first
occupy such part for the conduct of normal business. Tenant's actual possession
of any part or parts of the Premises prior to the Commencement Date shall be
subject to all of the obligations of this Lease, except that fixed rent
apportioned to the rentable area of each such part and prorated from the date of
taking actual possession shall be payable at the end of each calendar month
preceding the Commencement Date and, for the period directly following the
Commencement Date, on the Commencement Date.
Section 4.06 Changes in Plans and Specifications
-------------------------------------------------
A. If at any time after Tenant Improvement Costs are determined, Tenant desires
to make any Change Order which is material in nature, Tenant shall submit for
pricing by Contractor working drawings and specifications for any and all such
desired Change Order, and send a copy thereof to Landlord. Landlord shall
respond to Tenant within five (5) Working Days of such request by Tenant. A
failure by Landlord to respond to any such Change Order notice shall be deemed
consent of the Change Order. Once the cost and the schedule change, if any, for
such Change Order has been approved by Tenant, all references in this Work
Agreement to the "Tenant Improvement
<PAGE>
Construction Documents" shall be to the Tenant Improvement Construction
Documents adopted pursuant to the procedures of Section 3, as changed and
modified pursuant to this Section 4.06, and all references to "Tenant
Improvement Costs" shall include the net aggregate approved cost for the Change
Orders as determined in this Section 4.06 (after taking into account any savings
affected by such Change Order).
B. Once the Change Order, the costs therefor and the schedule change associated
therewith have been approved and a form evidencing such approval executed by
Tenant and Tenant's Architect is delivered to Landlord, Tenant shall be deemed
to have given full authorization to cause Contractor to proceed with the work of
constructing and installing the Tenant Improvements in accordance with the
Tenant Improvement Construction Documents as modified and revised; provided that
any changes required by Tenant which constitute a material deviation from the
previously approved Tenant Improvement Construction Documents shall be effective
only after consent of Landlord, which consent shall not be unreasonably withheld
or delayed.
ARTICLE 5. PAYMENT OF COSTS
----------------------------
Section 5.01 Allowances for Tenant Improvement Costs
-----------------------------------------------------
Landlord shall pay the Tenant Improvement Costs, up to, but not in excess of,
the Allowance. Included in the Allowance are funds for Tenant's use in the
process of preparing the Tenant Space Plans and other items as described in
Special Stipulation 6, and no separate allowance or funds shall be provided for
or made available to Tenant for such purpose. The Allowance is applicable to
Tenant Improvements, except to the extent any items are a part of the Base
Building Improvements described in Article II herein.
<PAGE>
Section 5.02 Tenant's Costs
----------------------------
Tenant shall pay Tenant Improvement Costs (if any) in excess of the
Allowance.
Landlord shall be entitled to receive a fee for Landlord's role in
reviewing Tenant Improvement Construction Documents, and in performing certain
other functions under this Work Agreement. Such fee shall be equal to
$27,860.00, and shall be payable by Tenant on or before August 1, 1993. Such
amount may be funded out of the Allowance.
Section 5.03 Funding of Allowance.
----------------------------------
(a) Tenant shall by the fifth (5th) calendar day of each calendar
month (or the close of the next business day thereafter if the fifth (5th)
calendar day falls on a weekend or holiday) deliver to Landlord an invoice for
the costs incurred with respect to the Tenant Improvements previously paid or
incurred by Tenant and, as to those Tenant Improvements which consist of all
Tenant fit-up and finish work (as opposed to other, moveable, non-permanent,
attached items), previously certified and approved by Tenant's Architect; and
(b) Landlord shall pay Tenant the amount of such invoice by the fifth
(5th) day of the following calendar month (or the close of the next business day
thereafter if the fifth (5th) calendar day falls on a weekend or holiday).
(c) At least Fifteen and No/100 Dollars ($15.00) per usable square
foot in the Premises shall be spent upon and allocated to the physical
components of and Construction Contract for the Tenant Improvements, and shall
be funded through the Allowance.
ARTICLE 6. CONTRACTOR REQUIREMENTS
-----------------------------------
A. The following shall be acceptable to Landlord as the "Contractor":
(i) KR - Witwer, Inc.
(ii) W.K. Barber Construction Corporation
(iii) Hardin Interior Services
(iv) Beers Construction Company
(v) Choate Interior Construction
(vi) Weich Tarkington
Tenant may, however, select another party as Contractor, subject to
Landlord's consent, such consent not to be unreasonably withheld or
delayed.
B. Tenant shall be responsible for preparing any bid instructions for
prospective contractors, shall receive and qualify any bids, and shall
determine the
<PAGE>
responsiveness of any bids received. Landlord shall have the right to
review such work and services.
ARTICLE 7. TENANT'S CONSTRUCTION OBLIGATIONS
--------------------------------------------
A. Tenant will improve the Premises in accordance with the Tenant Improvement
Construction Documents. Tenant shall construct the Premises in a good and
workmanlike manner.
B. Tenant shall require Contractor to purchase from and maintain, in a company
or companies licensed in and lawfully authorized to do business in Georgia
and to which Landlord has no reasonable objection, the insurance set forth
on Exhibit "C-4" attached hereto and incorporated herein by reference.
-------------
Landlord and The Landmarks Group General Corporation shall be named as
additional insureds under the All Risk Insurance and Builder's Risk
Insurance specified in Exhibit "C-4". All insurance required by this
-------------
Section may be carried by Tenant's contractors or subcontractors in whole
or in part under a blanket policy (or policies). Tenant shall require each
contractor to furnish to Landlord and Tenant evidence of the maintenance of
such insurance coverage, with assurances that it will not be cancelled
without thirty (30) days advance written notice to Tenant and Landlord.
C. Tenant shall use its best efforts to cause Contractor and all
subcontractors to abide by the Rules and Regulations for the Building
attached hereto as Exhibit "C-5" and incorporated herein by reference and
-------------
Tenant shall comply with such rules and regulations.
D. Tenant shall be responsible for cleaning and rubbish removal.
E. Tenant shall provide adequate protection for Tenant's materials, supplies,
tools, fixtures, equipment and other property.
F. Tenant shall obtain all governmental approvals, permits and other
governmental consents required to commence, perform and complete the Tenant
Improvements; cause the Tenant Improvements to comply with all applicable
laws; and maintain for inspection by Landlord copies of all receipts for
tax payments, and all such approvals, permits, inspection reports and other
governmental consents obtained by Tenant. Tenant shall provide Landlord
with the appropriate Certificate of Occupancy with respect to the Premises
and final lien waivers in the form attached hereto as Exhibit "C-6" and by
-------------
this reference incorporated herein, upon completion of the Tenant
Improvements.
<PAGE>
G. For a period of one year from the date of Substantial Completion of each
floor of the Premises the Tenant Improvements will be free from defects.
Therefore, if prior to the first anniversary of the date of Substantial
Completion of any floor any workmanship or material used in the Tenant
Improvements on such floor is defective, Tenant shall, prior to such first
anniversary of such date, cause such defective workmanship or material to
be appropriately corrected, repaired or replaced.
H. In no event shall anything in this Work Letter modify or abate Tenant's
obligation to pay Rent with respect to each floor of the Premises from and
after the Commencement Dates for each floor of the Premises, as Tenant's
obligation to pay Rent is in no way contingent upon, dependent upon or
otherwise tied to Substantial Completion.
I. Tenant shall promptly repair and restore, at its expense, any portion of
the Building damaged in the process of performing the Work.
ARTICLE 8. DESIGNATION OF REPRESENTATIVES
-----------------------------------------
Section 8.01 Landlord's Agent
-----------------------------
For purposes of this Work Agreement, Landlord hereby designates Mr. Ron
Commander to act as its authorized representative on all matters relating to the
work contemplated in this Work Agreement, and any response from Mr. Ron
Commander as to matters contemplated under this Work Agreement shall be the
response of Landlord hereunder.
Section 8.02 Tenant's Agent
---------------------------
For purposes of this Work Agreement, Tenant hereby designates Farley Hunter to
act as its authorized representative on all matters relating to the work
contemplated in this Work Agreement, and any response from Farley Hunter as to
matters contemplated under this Work Agreement shall be the response of Tenant
hereunder.
Section 8.03 Mutual Cooperation
-------------------------------
Landlord's Agent and Tenant's Agent shall cooperate with one another in
coordinating Substantial Completion of Tenant's Work, and in controlling and
minimizing the time and costs of the Tenant Improvements and Tenant Work.
ARTICLE 9. ADA COMPLIANCE
--------------------------
Section 9.01 Building
---------------------
<PAGE>
Tenant shall not be required to pay for any construction expenses which
Landlord is required to make under the Americans With Disabilities Act (the
"ADA"), to the extent such expenses are (i) under generally accepted accounting
practices, classified as capital expenditures, and (ii) not mandated by or as a
result of Tenant's use, occupancy of, or employment practices within the
Premises.
Section 9.02 Tenant's Improvements
----------------------------------
Tenant Improvements shall be and Tenant shall cause the Tenant Space Plans to be
in compliance with the ADA, but only to the extent that the ADA requirements are
applicable and mandatory and are not voluntary with respect to such Tenant
Improvements.
<PAGE>
CONCOURSE
EXHIBIT "D"
RULES AND REGULATIONS
The rules and regulations set forth in this Exhibit shall be and hereby are
made a part of the Lease to which they are attached. Whenever the term "Tenant"
is used in these rules and regulations, it shall be deemed to include Tenant,
its employees or agents and any other persons permitted by Tenant to occupy or
enter the Premises. The following rules and regulations may from time to time
be modified by Landlord in the manner set forth in Paragraph 29 of the Lease.
1. Obstruction. The sidewalks, entries, passages, corridors, halls,
-----------
lobbies, stairways, elevators and other common facilities of the Building shall
be controlled by Landlord and shall not be obstructed by Tenant or used for any
purposes other than ingress or egress to and from the Premises. Tenant shall
not place any item in any of such locations, whether or not any such item
constitutes an obstruction, without the prior written consent of Landlord.
Landlord shall have the right to remove any obstruction or any such item without
notice to Tenant and at the expense of Tenant. The floors, skylights and
windows that reflect or admit light into any place in said Building shall not be
covered or obstructed by Tenant.
2. Ordinary Business Hours. Whenever used in the Lease or in these rules
-----------------------
and regulations, the ordinary business hours of the Building shall be from 8:00
A.M. to 6:00 P.M. Monday through Friday and 8:00 A.M. to 1:00 P.M. Saturday of
each week, excluding the legal holidays of New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, Christmas Day, and any other
holidays observed by owners of comparable buildings.
3. Deliveries. Tenant shall insure that all deliveries of supplies to
----------
the Premises shall be made only upon the elevator designated by Landlord for
deliveries and only during the ordinary business hours of the Building. If any
person delivering supplies to Tenant damages the elevator or any other part of
the Building, Tenant shall pay to Landlord upon demand the amount required to
repair such damage.
4. Moving. Furniture and equipment shall be moved in or out of the
------
Building only upon the elevator designated by Landlord for deliveries and then
only during such reasonable hours and in such manner as may be prescribed by
Landlord. Landlord shall have the right to approve or disapprove the movers or
moving company employed by Tenant and Tenant shall cause such movers to use only
the loading facilities and elevator designated by Landlord. If Tenant's movers
damage the
<PAGE>
elevator or any other part of the Building, Tenant shall pay to Landlord upon
demand the amount required to repair such damage.
5. Heavy Articles. No safe or article the weight of which may, in the
--------------
reasonable opinion of Landlord, constitute a hazard or damage to the Building or
its equipment, shall be moved into the Premises. Landlord shall have the right
to designate the location of such articles in the Premises. Safes and other
heavy equipment, the weight of which will not constitute a hazard or damage the
Building or its equipment shall be moved into, from or about the Building only
during such hours and in such manner as shall be reasonably prescribed by
Landlord.
6. Nuisance. Tenant shall not do or permit anything to be done in the
--------
Premises, or bring or keep anything therein which would in any way constitute a
nuisance or waste, or obstruct or interfere with the rights of other tenants of
the Building, or in any way injure or annoy them, or conflict with the laws
relating to fire, or with any regulations of the fire department or with any
insurance policy upon the Building or any part thereof, or conflict with any of
the rules or ordinances of any governmental authority having jurisdiction over
the Building.
7. Building Security. Landlord may restrict access to and from the
-----------------
Premises and the Building outside of the ordinary business hours of the
Building. Landlord may require identification of persons entering and leaving
the Building during this period and, for this purpose, may issue Building passes
to tenants of the Building.
8. Pass Key. The janitor of the Building may at all times keep a pass
--------
key to the Premises, and he and other agents of Landlord shall at all reasonable
times be allowed admittance to the Premises.
9. Locks and Keys for Premises. No additional lock or locks shall be
---------------------------
placed by Tenant on any door in the Building and no existing lock shall be
changed unless the written consent of Landlord shall first have been obtained.
A reasonable number of keys to the Premises and to the toilet rooms, if locked
by Landlord, will be furnished by Landlord, and Tenant shall not have any
duplicate key made. At the termination of this tenancy Tenant shall promptly
return to Landlord all keys to the Building, Premises and toilet rooms.
10. Signs. Signs on Tenant's entrance doors will be provided for Tenant
-----
by Landlord, the cost of the signs to be charged to and paid for by Tenant. No
advertisement, sign or other notice shall be inscribed, painted or affixed on
any part of the outside or inside of the Building, except upon the interior
doors as permitted by Landlord, which advertisement, signs, or other notices
shall be of Building standard order, size and style, and at such places as shall
be designated by Landlord.
<PAGE>
11. Use of Water Fixtures. Water closets and other water fixtures shall
---------------------
not be used for any purpose other than that for which the same are intended, and
any damage resulting to the same from misuse on the part of Tenant shall be paid
for by Tenant. No person shall waste water by tying back or wedging the faucets
or in any other manner.
12. No Animals, Excessive Noise. No animals shall be allowed in the
---------------------------
offices, halls, corridors and elevators in the Building. No person shall
disturb the tenants of this or adjoining buildings or space by the use of any
radio or musical instrument or by the making of loud or improper noises.
13. Bicycles. Bicycles or other vehicles shall not be permitted anywhere
--------
inside or on the sidewalks outside of the Building, except in those areas
designated by Landlord for bicycle parking.
14. Trash. Tenant shall not allow anything to be placed on the outside of
-----
the Building, nor shall anything be thrown by Tenant out of the windows or
doors, or down the corridors, elevator shafts, or ventilating ducts or shafts of
the Building. All trash shall be placed in receptacles provided by Tenant on
the Premises or in any receptacles provided by Landlord for the Building.
15. Windows and Entrance Doors. Window shades, blinds or curtains of a
--------------------------
uniform Building standard, color and pattern only shall be used throughout the
Building to give uniform color exposure through exterior windows. Exterior
blinds shall remain in the lowered position at all times to provide uniform
exposure from the outside. Tenant entrance doors should be kept closed at all
times in accordance with the fire code.
16. Hazardous Operations and Items. Tenant shall not install or operate
------------------------------
any steam or gas engine or boiler, or carry on any hazardous business in the
Premises without Landlord's prior written consent, which consent may be withheld
in Landlord's absolute discretion. The use of oil, gas or inflammable liquids
for heating, lighting or any other purpose is expressly prohibited. Explosives
or other articles deemed extra hazardous shall not be brought into the Building.
17. Hours for Repairs, Maintenance and Alterations. Any repairs,
----------------------------------------------
maintenance and alterations required or permitted to be done by Tenant under the
Lease shall be done only during the ordinary business hours of the Building
unless Landlord shall have first consented in writing to such work being done
outside of such times. If Tenant desires to have such work done by Landlord's
employees on Saturdays, Sundays, holidays or weekdays outside of ordinary
business hours, Tenant shall pay the extra cost of such labor.
18. No Defacing of Premises. Except as permitted by Landlord, Tenant
-----------------------
shall not mark upon, cut, drill into, drive
<PAGE>
nails or screws into, or in any way deface the doors, walls, ceilings, or floors
of the Premises or of the Building, nor shall any connection be made to the
electric wires or electric fixtures without the consent in writing on each
occasion of Landlord or its agents. Any defacement, damage or injury to the
Premises or Building caused by Tenant shall be paid for by Tenant. Nothing
contained in this Paragraph shall prohibit Tenant from decorating the walls of
the Premises with such items as are normally found in first-class, commercial
office buildings, so long as such items are no heavier than twenty (20) pounds.
19. Limit on Equipment. Tenant shall not, without Landlord's prior
------------------
written consent, which consent shall not be unreasonably withheld or delayed,
install or operate any equipment which will consume in conjunction with Tenant's
other equipment throughout the Premises, an amount of electricity which exceeds
that provided for under the Lease. If Tenant requires any interior wiring such
as for a business machine, intercom, printing equipment or copying equipment,
such wiring shall be done by the electrician of the Building only at Tenant's
expense, and no outside wiring persons shall be allowed to do work of this kind
unless by the written consent of Landlord or its representatives. If
telegraphic or telephonic service is desired, the wiring for same shall be done
as directed by the electrician of the Building or by some other employee of
Landlord who may be instructed by the superintendent of the Building to
supervise same, and no boring or cutting for wiring shall be done unless
approved by Landlord or its representatives, as stated.
20. Solicitation. Landlord reserves the right to restrict, control or
------------
prohibit canvassing, soliciting and peddling within the Building. Tenant shall
not grant any concessions, licenses or permission for the sale or taking of
orders for food or services or merchandise in the Premises, nor install or
permit the installation or use of any machine or equipment for dispensing goods
or foods or beverages in the Building, nor permit the preparation, serving,
distribution or delivery of food or beverages in the Premises without the
approval of Landlord and in compliance with arrangements prescribed by Landlord.
Only persons approved in writing by Landlord shall be permitted to serve,
distribute, or deliver food and beverages within the Building, or to use the
elevators or public areas of the Building for that purpose.
21. Doors. Doors for entrance to and exit from the Premises shall be kept
-----
closed at all times, except when in use for entering or exiting the Premises.
22. Captions. The caption for each of these rules and regulations is
--------
added as a matter of convenience only and shall be considered of no effect in
the construction of any provision or provisions of these rules and regulations.
<PAGE>
23. No Smoking. Landlord shall prohibit smoking in any area other than
----------
certain designated smoking areas in the Building. Landlord shall notify Tenant
of such designated areas from time to time.
<PAGE>
EXHIBIT "E"
LEGAL DESCRIPTION - CORPORATE CENTER VI
---------------------------------------
All that tract or parcel of land lying and being in Land Lot 17, 17th District,
Fulton County, Georgia and being more particularly described as follows: To
reach the TRUE POINT OF BEGINNING, commence at the intersection of the former
southern Right-of-Way of Hammond Drive (variable Right-of-Way, but was 47.9 feet
from the centerline) extended and the former western Right-of-Way of Peachtree
Dunwoody Road (variable Right-of-Way, but was 41.7 feet from the centerline)
extended; thence along the former southern Right-of-Way of Hammond Drive North
86 (degrees) 36' 33" West a distance of 169.01 feet to a point; thence
continuing along said former Right-of-Way North 84 (degrees) 29' 08" West a
distance of 208.47 feet to a point; thence continuing along said former Right-
of-Way North 87 (degrees) 58' 03" West a distance of 344.41 feet to a point;
thence leaving said former Right-of-Way South 02 (degrees) 01' 32" West a
distance of 23.63 feet to a point on the existing southern Right-of-Way of
Hammond Drive (variable Right-of-Way); thence continuing along said existing
Right-of-Way North 87 (degrees) 59' 35" West a distance of 173.23 feet to a
point; thence continuing along said Right-of-Way North 74 (degrees) 42' 17" West
a distance of 51.80 feet to a point; thence continuing along said Right-of-Way
North 87 (degrees) 44' 16" West a distance of 120.26 feet to a point; thence
leaving said Right-of-Way South 02 (degrees) 13' 27" West a distance of 47.46
feet to a point; thence North 87 (degrees) 17' 49" West a distance of 340.88
feet to a point being the TRUE POINT OF BEGINNING; thence North 87 (degrees) 17'
49" West a distance of 259.25 feet to a point; thence South 00 (degrees) 28' 40"
East a distance of 115.99 feet to a point; thence along a curve to the right an
arc distance of 162.30 feet (said curve having a radius of 1301.00 feet, a chord
distance of 162.20 feet, and a chord bearing of South 03 (degrees) 05' 46" West)
to a point; thence South 06 (degrees) 40' 11" West a distance of 133.86 feet to
a point; thence along a curve to the left an arc distance of 156.81 feet (said
curve having a radius of 1000.00 feet, a chord distance of 156.65 feet, and a
chord bearing of South 02 (degrees) 10' 40" West) to a point; thence South 02
(degrees) 18' 52" East a distance of 22.60 feet to a point; thence South 87
(degrees) 41' 08" West a distance of 109.76 feet to a point; thence along a
curve to the left an arc distance of 217.01 feet (said curve having a radius of
3701.72 feet, a chord distance of 216.97 feet, and a chord bearing of South 02
(degrees) 46' 11" East) to a point; thence South 10 (degrees) 51' 39" East a
distance of 127.09 feet to a point; thence South 06 (degrees) 43' 25" East a
distance of 85.90 feet to a point; thence South 16 (degrees) 29' 48" East a
distance of 217.42 feet to a point; thence along a curve to the left an arc
distance of 835.81 feet (said curve having a radius of 941.74 feet, a chord
distance of 808.65 feet, and a chord bearing of South 48 (degrees) 01' 33" East)
to a point; thence North 17 (degrees) 25' 43" East a distance of 169.03 feet to
a point); thence along a curve to the right an arc distance of 46.09 feet (said
curve having a radius of 567.11 feet, a chord
<PAGE>
distance of 46.08 feet, and a chord bearing of North 66 (degrees) 51' 40" West)
to a point; thence North 56 (degrees) 26' 51" West a distance of 185.58 feet to
a point; thence along a curve to the right an arc distance of 108.18 feet (said
curve having a radius of 438.02 feet, a chord distance of 107.91 feet, and a
chord bearing of North 49 (degrees) 22' 19" West) to a point; thence North 42
(degrees) 17' 47" West a distance of 196.00 feet to a point; thence along a
curve to the right an arc distance of 344.02 feet (said curve having a radius of
438.02 feet, a chord distance of 335.25 feet, and a chord bearing of North 19
(degrees) 47' 47" West) to a point; thence North 02 (degrees) 42' 13" East a
distance of 10.50 feet to a point; thence North 87 (degrees) 17' 47" West a
distance of 52.06 feet to a point on the east line of Road Easement #4; thence
along said easement along a curve to the right an arc distance of 92.00 feet
(said curve having a radius of 835.47 feet, a chord distance of 91.95 feet, and
a chord bearing of North 09 (degrees) 07' 34" West) to a point; thence leaving
said Road Easement South 87 (degrees) 17' 47" East a distance of 70.91 feet to a
point; thence North 02 (degrees) 42' 13" East a distance of 127.59 feet to a
point; thence North 87 (degrees) 17' 47" West a distance of 10.00 feet to a
point; thence North 02 (degrees) 42' 13" East a distance of 10.00 feet to a
point; thence North 87 (degrees) 17' 47" West a distance of 55.80 feet to a
point; thence North 02 (degrees) 42' 13" East a distance of 244.00 feet to a
point; thence South 87 (degrees) 17' 47" East a distance of 129.80 feet to a
point; thence South 02 (degrees) 42' 13" West a distance of 244.00 feet to a
point; thence South 87 (degrees) 17' 47" East a distance of 174.00 feet to a
point; thence South 42 (degrees) 17' 47" East a distance of 75.00 feet to a
point; thence South 02 (degrees) 42' 13" West a distance of 20.42 feet to a
point; thence South 87 (degrees) 17' 47" East a distance of 101.33 feet to a
point; thence North 00 (degrees) 00' 00" East a distance of 211.03 feet to a
point; thence North 47 (degrees) 42' 11" East a distance of 105.51 feet to a
point; thence North 48 (degrees) 42' 12" East a distance of 103.91 feet to a
point; thence along a curve to the left an arc distance of 150.75 feet (said
curve having a radius of 1317.92 feet, a chord distance of 150.67 feet, and a
chord bearing of North 41 (degrees) 59' 43" East) to a point; thence along a
curve to the left an arc distance of 37.41 feet (said curve having a radius of
23.00 feet, a chord distance of 33.42 feet, and a chord bearing of North 07
(degrees) 52' 36" West) to a point; thence along a curve to the left an arc
distance of 44.69 feet (said curve having a radius of 78.00 feet, a chord
distance of 44.08 feet, and a chord bearing of North 70 (degrees) 53' 04" West)
to a point; thence North 87 (degrees) 17' 49" West a distance of 129.20 feet to
a point; thence South 02 (degrees) 42' 11" West a distance of 10.75 feet to a
point; thence North 87 (degrees) 17' 49" West a distance of 77.00 feet to a
point; thence South 02 (degrees) 42' 11" West a distance of 22.00 feet to a
point; thence North 87 (degrees) 17' 49" West a distance of 60.67 feet to a
point; thence North 02 (degrees) 42' 11" East a distance of 22.00 feet to a
point; thence North 87 (degrees) 17' 49" West a distance of 193.33 feet to a
point; thence North 02 (degrees) 42' 11" East a distance of 279.00 feet to a
point being the TRUE POINT OF BEGINNING, said tract containing 13.065 acres as
shown on As-Built Survey for Concourse VI Associates, JV Georgia One, Inc.,
Lawyers Title
<PAGE>
Insurance Corporation and Ticor Title Insurance Company of California, prepared
by Benchmark Engineering Corporation, bearing the certification of Dennis Huff,
Georgia Registered Land Surveyor No. 2337, dated September 12, 1991.
<PAGE>
EXHIBIT "F"
-----------
HVAC SPECIFICATIONS
-------------------
Year round air conditioning system capable of producing and maintaining the
following conditions throughout the Premises:
(i) Temperature - inside temperature to be maintained at:
-----------
Summer: 76 degrees FDB + 2 degrees FDB, subject to outside
-
temperature of 94 degrees FDB.
Winter: 72 degrees FDB + 2 degrees FDB, subject to outside
-
temperature of 17 degrees FDB.
<PAGE>
EXHIBIT "G"
-----------
CLEANING SPECIFICATIONS
-----------------------
I. LEASED PREMISES
---------------
A. Quality Assurance
-----------------
To assure that these Cleaning Specifications are being fulfilled, the
following inspections will be performed:
1. Once a week, all common areas of the Building, as well as one
randomly selected floor of the leased premises will be inspected
by the Building Manager and a representative of the Cleaning
Contractor.
2. Once a month, the entire leased premises will be inspected by a
representative of the Tenant, the Building Manager and a
representative of the Cleaning Contractor.
B. Office Areas (Nightly)
----------------------
1. Waste Baskets - Emptied and exterior spot cleaned with contents
removed to disposal area. Metal and plastic receptacles shall be
washed and sanitized on an annual basis. Wood receptacles shall
be sprayed with disinfectant and wiped clean on the same annual
schedule.
2. Furnish and replace plastic liners on all waste baskets as
needed.
3. Empty and wipe clean ash trays.
4. Vacuum all rugs and carpeted areas.
5. Dust furniture, files, fixtures and all low-reach areas.
6. Polish all glass furniture tops.
7. Remove marks and smudges from vertical surfaces.
8. Clean all water fountains.
9. Sweep all private stairways nightly; vacuum if carpeted.
10. Damp mop spillage in office and public areas as required.
11. Dust all telephones as necessary.
<PAGE>
12. Clean doors, door knobs, light switches and other door areas of
frequent usage.
C. Rest Rooms and Break Room Areas (Nightly)
-----------------------------------------
1. Damp Mop.
2. All ceramic surfaces of rest rooms will be mopped with a
germicide nightly and scrubbed with a germicide cleaner monthly.
All noncarpeted floors shall be swept nightly; all spots shall be
hand cleaned or the entire floor will be mopped as needed. Tile
floors shall be scrubbed and recoated as needed.
3. Clean all mirrors, bright work and enameled surfaces.
4. Wash and disinfect all fixtures.
5. Empty all receptacles and remove refuse for disposal.
6. Fill toilet tissue, soap and towel dispensers.
7. Clean flushometers and other metal work as needed.
8. Wash and polish all wall partitions, tile walls and enamel
surfaces from trim to floor as required.
9. Vacuum all louvers, ventilating grilles and dust light fixtures
as required.
D. Floors
------
1. Sweep with treated cloth; all spots shall be spot cleaned or
entire floor shall be mopped as needed on all ceramic tile, marble
and terrazzo floor on a nightly basis and scrubbed on a monthly
schedule.
2. Sweep vinyl composition floors and bases nightly. Spray shine and
buff tile floors monthly and strip as necessary, but not less
frequently than annually.
3. Carpet shall be vacuumed and spot cleaned as required.
Shampooing/steam cleaning, etc. will be performed outside the
scope of general office cleaning on an as-needed basis as
requested by the Tenant. The cost of shampooing/steaming, etc.
will be charged as additional services to the Tenant's account.
<PAGE>
E. Glass
-----
1. Clean all perimeter windows once a year inside and out. The
exterior of the perimeter windows will be cleaned twice per year.
Wipe clean all metal during this cleaning.
2. Interior glass shall be cleaned at least twice per year.
3. Clean glass entrance doors and adjacent glass panels nightly.
4. Clean partition glass and interior glass doors on a biweekly
basis. Spot clean, wash overall as often as needed.
F. High Dusting
------------
1. Dust all picture frames, charts, graphs, etc. monthly.
2. Vacuum dust all air-conditioning diffusers quarterly.
3. Dust the exterior surfaces of lightly fixtures quarterly.
4. Dust venetian blinds, as necessary; minimum quarterly.
G. Day Services
------------
1. Check all washrooms for toilet tissue and sanitary napkins
replacements.
2. Clean all Secure Areas as requested by Tenant and in the presence
of Tenant's representative.
It is understood that no services of the character herein
provided for shall be performed on Saturdays, Sundays or
holidays.
II. OTHER AREAS OF THE BUILDING
---------------------------
A. Entrance Lobby and Public Areas
-------------------------------
1. Sweep with treated cloth and spot clean by hand or mop as
necessary all lobby and entrance vestibule floors nightly. Spray
buff on a weekly schedule and wax, buff, apply sealer or finishes
as needed.
2. Clean sweep public, elevator lobby, and corridor flooring
nightly. Spray buff stone, ceramic tile, marble, or terrazzo
flooring once
<PAGE>
a week (machine scrub floors as necessary). Resilient flooring
shall be maintained once a week. Carpeting shall be vacuumed
nightly and spot cleaned as necessary.
3. Wipe down all metal surfaces within reach of attendant in the
lobby and Building exterior, and polish as required; once a month
at a minimum.
4. Dust all lobby and public corridor walls nightly and wash as
required.
5. High dust and wash all electrical and air-conditioning fixtures
at least quarterly in elevator lobbies, corridors, and entrance
lobby.
6. Dust mail depository. Telephone booths shall be swept daily and
glass cleaned nightly.
7. Clean cigarette urns, screen sand, and supply sand as necessary
on a daily basis.
8. Clean entrances and lobby doors at least once a day. On the first
rental floor, clean all elevator, stairway, utility and office
doors as necessary to remove dirt and finger marks.
9. Sweep or shake out all rubber mats and clean wool or nylon
runners nightly as necessary if used during the day.
B. Elevators
---------
1. Clean saddles, doors and frames of elevator lobby nightly.
2. Clean saddles and frames on floors above lobby once a week and
vacuum dirt from door tracts nightly.
3. Clean inside surfaces of elevator cabs nightly.
4. Clean elevator pits as needed.
5. Sweep and spot clean resilient floor in elevators nightly and
wash and wax as necessary.
NOTE: If carpets are installed, regular carpet care shall be provided
---- in lieu of Item 5. Spot clean elevator carpets as necessary,
including spares.
C. Public Stairwells
-----------------
<PAGE>
1. Check all public stairwells throughout the Building and keep in
clean condition; sweep daily and mop as necessary at least once a
week.
2. Inspect and keep clean fire hoses, extinguishers and similar
equipment and report any discrepancies to the Building Manager
---
and enter in logbook.
3. Dust all railings, etc. weekly and high dusting quarterly.
D. Building Service Areas
----------------------
1. Keep locker rooms and slop sink room in a neat, orderly and clean
condition at all times.
2. Sweep, blow, or hose all ramps, loading docks, truck areas, etc.
daily and scrub, if necessary, or as instructed by Building
Manager.
3. Clean mechanical equipment areas, electric, and telephone closets
as often as necessary or as instructed by Building Manager.
4. Keep elevator areas in a neat, clean condition at all times. Keep
wastepaper, cardboard, rubbish, etc. stored in an approved area.
Clean the floors, walls, doors, etc. as necessary.
E. Exterior Cleaning
-----------------
Maintain entire building exterior, including metalwork, entrance
doors, building trim, and exterior window frames and mullions. Clean
standpipes, sprinkler connections and hose bibs.
F. Roof Area
---------
Police roof on a weekly schedule and clean as often as necessary.
G. Sidewalk Area
-------------
1. Sweep sidewalk daily, weather permitting.
2. Remove snow and ice from all sidewalks as soon as possible.
3. Keep in clean condition and water as appropriate all planting
areas.
4. Remove chewing gum and other foreign matter from sidewalks on
sight.
<PAGE>
H. Duties of Day Personnel
-----------------------
1. Day Porter(s)
It is understood that the Day Porter will attend to the Building
on a daily, part-time schedule. His work day will be scheduled
with similar responsibilities at other buildings. The following
is a general list of duties:
a. Continually check all public areas, picking up all foreign
matter on sight.
b. Clean all planters of litter daily.
c. Water all planting areas in accordance with the watering
schedule.
d. Remove all chewing gum from sidewalks on sight.
e. Check all roofs on a weekly schedule and clean roof as often
as necessary.
f. Sweep lobby as required, five (5) days a week, using an
approved chemically treated cloth.
g. Empty and strain all cigarette urns; material to be supplied
by Landlord.
h. Vacuum clean elevator cab floors once a day and on an as-
needed basis.
i. Wipe clean and remove finger marks from all metal bright
works throughout interior of lobby daily.
j. Sweep or blow sidewalks, plaza, ramps, loading docks,
trucking areas, etc. daily and scrub as necessary.
k. Lay down and remove lobby runners as necessary.
l. Sweep and dust exterior staircases daily.
m. Wash exterior staircases on an as-needed basis.
n. Sweep and wash the flooring in the chiller room, pump room,
etc. as required.
o. Check all men's lavatories twice daily.
p. Fill all dispensers as required.
<PAGE>
q. Clean Secure Areas as requested by Tenant and in the
presence of Tenant's representative.
2. Day Matron(s)
It is understood that the Day Matron will attend to the subject
Building on a daily, part-time basis. Her work day will be
scheduled with similar responsibilities at other buildings. The
following is a general list of duties:
a. Police all ladies' lavatories twice daily.
b. Fill toilet tissue and towel dispensers as required.
c. Service sanitary napkins dispensers with sanitary napkins
furnished by Landlord.
d. Collect coins from sanitary napkin dispensers and turn
proceeds over to the duly authorized representative of the
Landlord.
e. Wipe clean all sinks, glass and powder shelves twice daily.
I. Window Cleaning
---------------
1. Clean all windows on the outside and inside from the main floor
to the roof, at least once a year as directed by the Building
Manager. Wipe clean window frames and associated metal at the
same time.
2. Clean entrance doors daily.
3. Clean directory glass daily.
4. Clean all glass within the attendants' reach on first-floor lobby
areas on an as-needed basis.
J. Pest Control
------------
1. The public spaces throughout the Building shall be kept under
pest control treatment. The public spaces throughout the Building
will be treated on a monthly basis or as required to control
pests.
2. The leased premises shall be treated as required to control
pests.
<PAGE>
3. All service shall be rendered by licensed operators with special
emergency calls on request. There shall be no charge for
emergency calls unless the call relates to paper mites (for which
there shall be an extra charge).
<PAGE>
EXHIBIT "H"
-----------
REFUSAL SPACE
To Be Attached