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Office Lease |
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2001 |
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176KB total |
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$74 |
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#342096 |
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OFFICE LEASE
THIS OFFICE LEASE is entered into by Landlord and Tenant as described
in the following basic lease information on the date that is set forth for
reference only in the following basic lease information. Landlord and Tenant
agree:
ARTICLE 1 BASIC LEASE INFORMATION
1.1 Basic Lease Information. In addition to the terms that are defined
elsewhere in this Lease, these terms are used in this Lease:
(a) LEASE DATE: January 11, 2000
(b) LANDLORD: EXODUS REALTY, L.P., A GEORGIA LIMITED
PARTNERSHIP
BY: DALFEN CORPORATE FORUM ENTERPRISES, INC., A
CANADIAN CORPORATION AS ITS SOLE GENERAL
PARTNER.
{TABLE}
{S} {C}
(c) LANDLORD'S ADDRESS: 4444 Ste Catherine West, Suite 100
Westmount, Quebec, Canada, H3Z IR2
with a copy at the same time to: Exodus Realty, L.P.
4501 Circle 75 Parkway, Suite C-3190
Atlanta, Georgia 30339
(d) TENANT: EMPIRE TECHNOLOGY CORPORATION
TENANT'S TRADE NAME: Same
(e) TENANT'S ADDRESS: 4501 Circle 75 Parkway, Suite D-4210
Atlanta, Georgia 30339
(f) BUILDING ADDRESS: Corporate Forum
4501 Circle 75 Parkway
Atlanta, Georgia 30339
{/TABLE}
(g) PREMISES: The Premises shown on Exhibit A to this Lease,
known as SUITE D4210
(h) RENTABLE AREA OF THE PREMISES: Stipulated to be 9,867
RENTABLE SQUARE FEET.
(i) RENTABLE AREA OF THE BUILDING: Stipulated to be 183,055
SQUARE FEET.
(j) TERM: SIXTY (60) MONTHS, beginning on the commencement
date and expiring on the expiration date.
{PAGE} 2
(k) COMMENCEMENT DATE: MARCH 1, 2000, or as extended pursuant
to the Work Letter (as that term is defined below).
(l) EXPIRATION DATE: FEBRUARY 28, 2005, or as extended
pursuant to the Work Letter.
(m) SECURITY DEPOSIT: $12,744.88
(n) MONTHLY RENT: Subject to Section 4. 1
$12,744.88 per month commencing March 1, 2000 and ending February 28, 2001,
$13,254.67 per month commencing on March 1, 2001 and ending on February 28,
2002, $13,789.13 per month commencing on March 1, 2002 and ending on February
28, 2003, $14,340.04 per month commencing on March 1, 2003 and ending on
February 28, 2004, $14,915.62 per month commencing on March 1, 2004 and ending
on February 28, 2005, representing the Monthly Base Rent;
(o) OPERATING EXPENSES AND REAL ESTATE TAXES BASE: Base Year
is 2000
(p) TENANT'S SHARE: 5.4% (determined by dividing the rentable
area of the Premises by the rentable area of the Building, multiplying the
resulting quotient by 100, and rounding to the 3rd decimal place).
(q) PARKING SPACES: N/A spaces according to Article 27.
(r) PARKING CHARGE: $ N/A per parking space per month, subject
to adjustments specified in Article 27.
(s) BROKER: Landlord: None
Tenant: Anne R. Lofye, Insignia/ESG
(t) USE: general office use including but not limited to,
executive and administrative functions, switching functions and call center
functions.
1.2 Definitions:
(a) ADDITIONAL RENT: Any amounts, including operating
Expenses, that this Lease requires Tenant to pay in addition to Monthly Rent. If
Tenant fails to pay any amounts due under this Lease, Landlord will have all the
rights and remedies available to it on account of Tenant's failure to pay Rent.
(b) BUILDING: The building located on the land and of which
the Premises are a part.
(c) LAND: The land on which the project is located and which
is more particularly described on Exhibit B.
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{PAGE} 3
(d) PRIME RATE: The rate of interest from time to time
announced by Chase Manhattan Bank ("The Bank"), or any successor to it, as its
prime rate. If "The Bank," or any successor to it ceases to announce its prime
rate, the prime rate will be a comparable interest rate designated by Landlord
to replace the prime rate.
(e) PROJECT: The development consisting of the Land and all
improvements built on the Land, including without limitation the Building,
parking lot, parking structure, if any, walkways, driveways, fences, and
landscaping.
(f) RENT: The Monthly Rent and Additional Rent
(g) WORK LETTER: The Work Letter attached to this Lease as
Exhibit C (if any).
If any other provision of this Lease contradicts any definition of this Article,
the other provision will prevail.
1.3 Exhibits. The following addendum and exhibits are attached to this
Lease and are made part of this Lease:
ADDENDUM [* * *]
EXHIBIT A--The Premises
EXHIBIT B--Legal Description of the Land
EXHIBIT C--Work Letter, if attached
EXHIBIT D--Rules and Regulations
EXHIBIT E--Commencement Date Certificate
EXHIBIT F--Guaranty, if attached
EXHIBIT G--Special Stipulations
ARTICLE 2 AGREEMENT
Landlord leases the Premises to Tenant, and Tenant leases the Premises
from Landlord, according to this Lease. The duration of this Lease will be the
"Term." The Term will commence on the Commencement Date and will expire on the
Expiration Date.
ARTICLE 3 DELIVERY OF PREMISES
3.1 Delivery of Possession. Landlord will be deemed to have delivered
possession of the Premises to Tenant on the Commencement Date, as it may be
adjusted pursuant to the Work Letter. Landlord will construct or install in the
Premises the improvements to be constructed or installed by Landlord according
to the Work Letter. If no Work Letter is attached to this Lease,
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{PAGE} 4
it will be deemed that Landlord delivered to Tenant possession of the Premises
"AS IS" in its present condition on the Commencement Date. Tenant acknowledges
that neither Landlord nor its agents or employees have made any representations
or warranties as to the suitability or fitness of the Premises for the conduct
of Tenant's business or for any other purpose, nor has Landlord or its agents or
employees agreed to undertake any alterations or construct any tenant
improvements to the Premises except as expressly provided in this Lease and the
Work Letter, if any. If for any reason Landlord cannot deliver possession of the
Premises to Tenant on the Commencement Date, this Lease will not be void or
voidable, and Landlord will not be liable to Tenant for any resultant loss or
damage. Tenant will execute the Commencement Date Certificate attached to this
Lease as Exhibit E within fifteen (15) days of Landlord's request.
3.2 Early Entry. If Tenant is permitted entry to the Premises prior to
the Commencement Date for the purpose of installing fixtures or any other
purpose permitted by Landlord, the early entry will be at Tenant's sole risk and
subject to all the terms and provisions of this Lease as though the Commencement
Date had occurred, except for the payment of Rent, which will commence on the
Commencement Date. Tenant, its agents, or employees will not interfere with or
delay Landlord's completion of construction of the improvements. All rights of
Tenant under this Section 3.2 will be subject to the requirements of all
applicable building codes, zoning requirements, and federal, state, and local
laws, rules, and regulations, so as not to interfere with Landlord's compliance
with all laws, including the obtaining of a certificate of occupancy for the
Premises. Landlord has the right to impose additional conditions on Tenant's
early entry that Landlord, in its reasonable discretion, deems appropriate,
including without limitation an indemnification of Landlord and proof of
insurance, and will further have the right to require that Tenant execute an
early entry agreement containing those conditions prior to Tenant's early entry.
ARTICLE 4 MONTHLY RENT
4.1 General. Throughout the Term of this Lease, Tenant will pay Monthly
Rent to Landlord as rent for the Premises, Monthly Rent will be paid in advance
on or before the first day of each calendar month of the Term, and shall be
accompanied by the applicable state of Georgia sales and use tax. If the Term
commences on a day other than the first day of a calendar month or ends on a day
other than the last day of a calendar month, then Monthly Rent will be
appropriately prorated by Landlord based on the actual number of calendar days
in such month. If the Term commences on a day other than the first day of a
calendar month, then the prorated Monthly Rent for such month will be paid on or
before the first day of the Term. Monthly Rent will be paid to Landlord, without
written notice or demand, and without deduction or offset, as an independent
covenant of all other covenants of this Lease, in lawful money of the United
States of America at Landlord's address, or to such other person or at such
other place as Landlord may from time to time designate in writing. Rent shall
be paid only by cashier's check after the service of a statutory three-day
notice on Tenant, to replace a dishonored check, or for the following twelve
(12) months if more than one check is dishonored during any twelve (12) month
period. For any dishonored check, in addition to any other amounts owed by
Tenant to Landlord under this Lease, Tenant shall pay Landlord 5% of the face
amount of the check plus any bank fees incurred in connection therewith.
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{PAGE} 5
4.2 Annual Monthly Rent Adjustment. The Monthly Rent to be paid
Landlord by Tenant during the initial Term of this Lease and all renewal terms
shall be increased, but not decreased, on the anniversary of the Commencement
Date and annually thereafter on each anniversary of the said Commencement Date
as shown in Article 1 (n).
ARTICLE 5 OPERATING EXPENSES
5.1 General.
(a) In addition to Monthly Rent, monthly in advance, beginning
on the Commencement Date Tenant will pay Tenant's Share of the amount by which
the Operating Expenses (defined below) paid, payable, or incurred by Landlord in
each calendar year or partial calendar year during the Term exceeds the product
of the Operating Expense Base times the rentable area of the building. THE BASE
YEAR IS 2000. If Operating Expenses are calculated for a partial calendar year,
the Operating Expenses will be appropriately prorated.
(b) As used in this Lease, the term "Operating Expenses"
means, without limiting the generality of the following, Tenant's Share of the
aggregate of:
(1) the total annual charges of Landlord for the
operation, management, maintenance, repair, reparation and administration of the
Project, including but not limited to Landlord's charges for Real Estate Taxes
(as that term is defined below), repairs, replacements, additions, alterations
and improvements, fixtures and equipment, utilities, the cost of changing the
suppliers of utilities, fuel, security policing, supervising, sprinkling,
lighting, heating, air conditioning, ventilating, plumbing drainage, servicing,
repaving, resurfacing, sealing, striping, landscaping, removing garbage, as well
as accounting, audit, management and legal fees and all other additional
charges, all as the foregoing relate or are allocated to the Project, together,
when applicable, with depreciation and/or amortization with interest thereon;
and
(2) the total annual charges of Landlord for insuring
buildings, improvements, and equipment at the Project, and the Common Areas,
from time to time owned or operated by Landlord or for which Landlord is legally
liable, in such form and manner, with such companies and for such coverage and
in such amounts as Landlord, or the mortgagee, from time to time may determine,
including without limitation, insurance against fire or any other perils which
presently are or hereafter may from time to time be embraced by or defined in a
standard "all risk" insurance policy with extended coverage endorsement perils,
commercial general and umbrella liability insurance, director's liability,
boiler machinery and pressure vessel insurance, business interruption and/or
loss of rental insurance and such other forms of insurance which Landlord or the
mortgagee requires from time to time for insurable risks and in amounts against
which a prudent Landlord would insure; and
(3) the total annual charges of Landlord, if any,
related to the promotion and/or marketing of the Project. These costs shall
include but not be limited to radio, television, and newspaper advertising; the
printing of flyers and their distribution; coordinated promotions with local or
national organizations; donations, decorations and any other type of action to
promote activities of the Project; and
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{PAGE} 6
(4) the cost (amortized over such period as Landlord
will reasonably determine) together with interest at the greater of the Prime
Rate prevailing plus 2% or Landlord's borrowing rate for such capital
improvements plus 2% on the unamortized balance of any capital improvements that
are made to the Project by Landlord (i) for the purpose of reducing Operating
Expenses, or (ii) after the Lease Date and by requirement of any governmental
law or regulation (including without limitation the Americans with Disabilities
Act of 1990 and applicable related Georgia law and the provisions of said laws
applicable to the Project or any part of it as a result of the use, occupancy,
or alteration by Landlord or any tenant or other occupant of the Project) that
was not applicable to the Project at the time it was constructed (whether or not
such law or regulation is applicable to the Project as a result of Landlord's or
any tenant's use, occupancy, or alteration of any portion of the Project, or
improvements made by or for any tenants in the Premises).
(c) Landlord shall not charge Tenant for the following costs:
repairs to the deck, joists, columns, load-bearing walls, foundations;
improvements made or any costs related to the premises of another Tenant; income
taxes personal to Landlord; real estate agents' commissions and expansion of the
Project.
(d) Tenant acknowledges that Landlord has not made any
representation or given Tenant any assurances that the Operating Expenses Base
will equal or approximate the actual Operating Expenses per square foot of
rentable area of the Premises for any calendar year during the Term.
5.2 Real Estate Taxes. In addition to Monthly Rent, Tenant will pay
Tenant's Share of the amount by which the Real Estate Taxes (defined below)
paid, payable, or incurred by Landlord in each calendar year or partial calendar
year during the Term exceeds the product of the Real Estate Tax Base times the
rentable area of the Building. THE BASE YEAR IS 2000. If Real Estate Taxes are
calculated for a partial calendar year, the Real Estate Tax Base will be
appropriately prorated.
"Real Estate Taxes" shall mean the total of all of the taxes, governmental
charges, general assessments, special assessments, and any water, sewer, or
other assessments, levied, assessed, or imposed at any time by any governmental
authority with respect to any period during the Lease Term which (i) are related
to the ownership, operation, use, or maintenance of the Project or any portion
of the Project, any personal property owned by Landlord with respect to the
Project, or any alterations or improvements to the Project, or (ii) may become a
lien on the Project, any personal property owned by Landlord with respect to the
Project, or any improvements to the Project or any portion of the Project. If,
due to a future change in the method of taxation or in the taxing authority, or
for any other reason, a tax or governmental imposition, however designated shall
be levied against Landlord in substitution in whole or in part for the Real
Estate Taxes, or in lieu of additions to or increases of said Real Estate Taxes,
then such franchise tax or governmental imposition shall be deemed to be
included within the definition of "Real Estate Taxes." As to special assessments
which are payable over a period of time extending beyond the Lease Term, only a
prorata portion of such special assessments, covering the portion of the Lease
Term which is unexpired at the time of the imposition of such assessment shall
be included in "Real Estate Taxes." If, by law, any assessment may be paid in
installments then, for the purposes of this Lease, (a) such assessment shall be
deemed to have
6
{PAGE} 7
been payable in the maximum number of installments permitted by law, and (b)
there shall be included in Real Estate Taxes, for each year in which such
installments may be paid, the installments of such assessments so becoming
payable during such year, together with any interest payable on such assessments
during such year. "Real Estate Taxes" shall also include all costs and expenses
incurred by Landlord in connection with any action by Landlord to contest the
amount of the assessment of the Project made with respect to Real Estate Taxes,
including attorneys' and appraisers' fees.
5.3 Estimated Payments. In addition to Monthly Rent, Tenant will pay to
Landlord in advance on the first day of each month during the Term one-twelfth
(1/12) of Tenant's Share of Estimated Operating Expenses paid, payable, or
incurred during the subject calendar year or partial calendar year (the
"Estimated Operating Expenses"). The Estimated Operating Expenses are subject to
revision according to the further provisions of this Section 5.3 and Section
5.4. During December of each calendar year or as soon after December as
practicable, Landlord will give Tenant written notice of Landlord's reasonable
estimate of the amounts payable under Section 5.1 for the ensuing calendar year.
On or before the first day of each month during the ensuing calendar year,
Tenant will pay to Landlord in advance one-twelfth (1/12) of such reasonable
estimated amount; however, if such notice is not given in December, Tenant will
continue to pay on the basis of the prior year's estimate until the month after
such notice is given; provided that in the month Tenant first pays Landlord's
new estimate Tenant will pay to Landlord the difference between the new estimate
and the amount payable under the prior year's estimate for each month which has
elapsed since December. If at any time or times it reasonably appears to
Landlord that the amount payable under Section 5.1 for the current calendar year
will vary from Landlord's estimate, Landlord may, by written notice to Tenant,
revise Landlord's estimate for such year, and subsequent payments by Tenant for
such year will be based upon Landlord's reasonably revised estimate.
5.4 Annual Settlement. Within ninety (90) days after the close of each
calendar year or as soon after such ninety (90) day period as practicable,
Landlord will deliver to Tenant a statement of amounts payable under Section 5.1
for such calendar year prepared by Landlord. Such statement will be final and
binding upon Landlord and Tenant unless Tenant objects to it in writing to
Landlord within thirty (30) days after it is given to Tenant. If such statement
shows an amount owing by Tenant that is less than the estimated payments
previously made by Tenant for such calendar year, the excess will be held by
Landlord and credited against the next payment of Rent; however, if the Term has
ended and Tenant was not in default at its end, Landlord will refund the excess
to Tenant. If such statement shows an amount owing by Tenant that is more than
the estimated payments previously made by Tenant for such calendar year, Tenant
will pay the deficiency to Landlord within thirty (30) days after the delivery
of such statement. If Landlord and Tenant disagree on the accuracy of Operating
Expenses as set forth in the statement and if the amount of Operating Expenses
as contained in the statement are in excess of five percent (5%) of the amount
of the Operating Expenses for the immediately preceding calendar year, and
provided further that Tenant strictly complies with the provisions of this
Article 5, Tenant shall nevertheless make payment in accordance with any notice
given by Landlord but the disagreement shall immediately be referred by Landlord
for prompt decision by a certified public accountant, architect, insurance
broker or other professional consultant who shall be deemed to be acting as
expert(s) and not arbitrator(s), and a determination signed by the selected
expert(s) shall be final and binding on both Landlord and Tenant. Any adjustment
7
{PAGE} 8
required to any previous payment made by Tenant or Landlord by reason of any
such decision shall be made within fourteen (14) days thereof, and the party
required to make payment under such adjustment shall bear all costs of the
expert(s) making such decision except where that payment represents 5% or less
of the Operating Expenses that were the subject of the disagreement in which
case Tenant shall bear all such costs.
5.5 Proration Upon Termination. If, for any reason other than the
default of Tenant, this Lease ends on a day other than the last day of a
calendar year, the amount of increase (if any) in Operating Expenses payable by
Tenant applicable to the calendar year in which this Lease ends will be
calculated on the basis of actual expenses for the period up to the lease
termination date.
5.6 Other Taxes. Tenant, if not permitted to pay the tax directly to
the taxing authority, will reimburse Landlord upon demand for any and all taxes
payable by Landlord (other than net income taxes) whether or not now customary
or within the contemplation of Landlord and Tenant:
(a) upon, measured by or reasonably attributable to the cost
or value of Tenant's equipment, furniture, fixtures and other personal property
located in the Premises or by the cost or value of any leasehold improvements
made in or to the Premises by or for Tenant, regardless of whether title to such
improvements is in Tenant or Landlord;
(b) upon or measured by Rent, including without limitation any
gross income tax or excise tax levied by the federal government or any other
governmental body with respect to the receipt of Rent;
(c) upon or with respect to the possession, leasing,
operation, management, maintenance, alteration, repair, use, or occupancy by
Tenant of the Premises or any portion of the Premises;
(d) upon this transaction or any document to which Tenant is a
party creating or transferring an interest or an estate in the Premises.
If it is not lawful for Tenant to reimburse Landlord, the Rent payable to
Landlord under this Lease will be revised to yield to Landlord the same net
rental after the imposition of any such tax upon Landlord as would have been
payable to Landlord prior to the imposition of any such tax.
Tenant will pay promptly when due all sales, merchandise or personal
property taxes on Tenant's personal property in the Premises and any other taxes
payable by Tenant, that if not paid, might give rise to a lien on the Premises
or Tenant's interest in the Premises.
ARTICLE 6 INSURANCE
6.1 Landlord's Insurance. At all times during the Term, Landlord will
carry and maintain:
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{PAGE} 9
(a) Fire and extended coverage insurance covering the Project,
its equipment, Common Area furnishings, and leasehold improvements in the
Premises to the extent of the Tenant Allowance (as that term is defined in the
Work Letter);
(b) Bodily injury and property damage insurance; and
(c) Such other insurance as Landlord reasonably determines
from time to time.
The insurance coverage and amounts in this Section 6.1 will be reasonably
determined by Landlord, based on coverages carried by prudent owners of
comparable buildings in the vicinity of the Project.
6.2 Tenant's Insurance. At all times during the Term, Tenant will carry
and maintain, at Tenant's expense, on an occurrence basis, the following
insurance, in the amounts specified below or such other amounts as Landlord may
from time to time reasonably request, with insurance companies and on forms
satisfactory to Landlord:
(a) Bodily injury and property damage liability insurance,
with a combined single limit of $2 million, each Occurrence/General Aggregate
and including a per location General Aggregate endorsement. All such insurance
will be written on a 1986 ISO Commercial General Liability Form;
(b) Insurance covering all of Tenant's furniture and fixtures,
machinery, equipment, and any other personal property owned and used in Tenant's
business and found in, on, or about the Project, and any leasehold improvements
to the Premises in excess of the Allowance, if any, provided pursuant to the
Work Letter in an amount not less than the full replacement cost. All such
insurance will be written on an ISO Special Form. All policy proceeds will be
used for the repair or replacement of the property damaged or destroyed;
however, if this Lease ceases under the provisions of Article 18, Tenant will be
entitled to any proceeds resulting from damage to Tenant's furniture and
fixtures, machinery, equipment, and any other personal property;
(c) Worker's compensation insurance insuring against and
satisfying Tenant's obligations and liabilities under the worker's compensation
laws of the state in which the Premises are located, including employer's
liability insurance in the limits required by the laws of the state in which the
Premises are located; and
(d) If Tenant operates owned, hired, or non-owned vehicles on
the Project, comprehensive automobile liability at a limit of liability with a
combined single limit of not less than $500,000.00.
(e) Such other insurance (including without limitation plate
glass insurance), in such amounts as Landlord or its lender may reasonably
require of Tenant upon thirty (30) days' prior written notice.
6.3 Forms of Policies. All policies of liability insurance which Tenant
is obligated to maintain according to this Lease (other than any policy of
worker's compensation insurance) will
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{PAGE} 10
name Landlord and such other persons or firms as Landlord specifies from time to
time as additional named insureds. Original or copies of original policies and
certificates of insurance on an Accord 75-S form (together with copies of the
endorsements naming Landlord and any others specified by Landlord as additional
insureds) and evidence of the payment of all premiums of such policies will be
delivered to Landlord prior to Tenant's occupancy of the Premises and from time
to time at least thirty (30) days prior to the expiration of the Term of each
such policy. All liability policies maintained by Tenant will contain a
provision that Landlord and any other additional insureds, although named as an
insured, will nevertheless be entitled to recover under such policies for any
loss sustained by Landlord and such other additional insureds, its agents, and
employees as a result of the acts or omissions of Tenant. All such policies
maintained by Tenant will provide that they may not be terminated or amended
except after thirty (30) days' prior written notice to Landlord. All policies
maintained by Tenant will be written as primary policies, not contributing with
and not supplemental to the coverage that Landlord may carry. No insurance
required to be maintained by Tenant by this Article 6 will be subject to more
than a $250 deductible limit without Landlord's prior written consent.
6.4 Waiver of Subrogation. Landlord and Tenant each waive any and all
rights to recover against the other or against any other tenant or occupant of
the Project, or against the officers, directors, shareholders, partners, joint
venturers, employees, agents, customers, invitees, or business visitors of such
other party or of such other tenant or occupant of the Project, for any loss or
damage to such waiving party arising from any cause covered by any property
insurance required to be carried by such party pursuant to this Article 6 or any
other property insurance actually carried by such party. Landlord and Tenant
from time to time will cause their respective insurers to issue appropriate
waiver of subrogation rights endorsements to all property insurance policies
carried in connection with the Project or the Premises or the contents of the
Project or the Premises. Tenant agrees to cause all other occupants of the
Premises claiming by, under, or through Tenant to execute and deliver to
Landlord such a waiver of claims and to obtain such waiver of subrogation rights
endorsements.
6.5 Adequacy of Coverage. Landlord, its agents, and employees make no
representation that the limits of liability specified to be carried by Tenant
pursuant to this Article 6 are adequate to protect Tenant. If Tenant believes
that any of such insurance coverage is inadequate, Tenant will obtain at
Tenant's sole expense such additional insurance coverage as Tenant deems
adequate.
ARTICLE 7 USE
The Premises will be used only for general office purposes, including
but not limited to executive and administrative functions, switching functions,
call center functions, and purposes incidental to that use, and for no other
purpose. The Premises will be used only as a commercial facility and not as a
place of public accommodation under the Americans with Disabilities Act of 1990;
to assure that use, Tenant will not offer its goods and services to the general
public at the Premises. Tenant will use the Premises in a careful, safe, and
proper manner. Tenant will not use or permit the Premises to be used or occupied
for any purpose or in any manner prohibited by any applicable laws, cause
demonstrations, picketing, use or allow the Premises to be used for any
improper, immoral, unlawful, pornographic, sexually explicit, or objectionable
purpose; cause, maintain, or permit any nuisance in, on, or about the Premises.
Tenant will not commit
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{PAGE} 11
waste or suffer or permit waste to be committed in, on, or about the Premises.
Tenant will conduct its business and control its employees and agents in such a
manner as not to create any nuisance or interfere with, annoy, or disturb any
other tenant or occupant of the Project or Landlord in its operation of the
Project.
ARTICLE 8 REQUIREMENTS OF LAW; FIRE INSURANCE
8.1 General. At its sole cost and expense, Tenant will promptly comply
with all laws, (including without limitation the Americans with Disabilities Act
of 1990), statutes, ordinances, and governmental rules, regulations, or
requirements now in force or in force after the lease date, with the
requirements of any board of fire underwriters or other similar body constituted
now or after the date, with any direction or occupancy certificate issued
pursuant to any law by any public officer or officers, as well as with the
provisions of all recorded documents affecting the Premises, insofar as they
relate to the condition, use, or occupancy of the Premises, or improvements or
alterations made by or for Tenant, excluding requirements of structural changes
to the Premises or the Building, unless required by the unique nature of
Tenant's use or occupancy of the Premises.
8.2 Hazardous Materials.
(a) For purposes of this Lease, "hazardous materials" means
any explosives, radioactive materials, hazardous wastes, or hazardous
substances, including without limitation substances defined as "hazardous
substances" in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Sections 9601-9657; the Hazardous
Materials Transportation Act of 1975, 49 U.S.C. Sections 1801-1812; the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901-6987; or any
other federal, state, or local statute, law, ordinance, code, rule, regulation,
order, or decree regulating, relating to, or imposing liability or standards of
conduct concerning hazardous materials, waste, or substances now or at any time
hereafter in effect (collectively, "hazardous materials laws").
(b) Tenant will not cause or permit the storage, use,
generation, or disposition of any hazardous materials in, on, or about the
Premises or the project by Tenant, its agents, employees, or contractors. Tenant
will not permit the Premises to be used or operated in a manner that may cause
the Premises or the Project to be contaminated by any hazardous materials in
violation of any hazardous materials laws. Tenant will immediately advise
Landlord in writing of (1) any and all enforcement, cleanup, remedial, removal,
or other governmental or regulatory actions instituted, completed, or threatened
pursuant to any hazardous materials laws relating to any hazardous materials
affecting the Premises; and (2) all claims made or threatened by any third party
against Tenant, Landlord, or the Premises relating to damage, contribution, cost
recovery, compensation, loss, or injury resulting from any hazardous materials
on or about the Premises. Without Landlord's prior written consent, Tenant will
not take any remedial action or enter into any agreements or settlements in
response to the presence of any hazardous materials in, on, or about the
Premises.
(c) Tenant will be solely responsible for and will protect,
defend, indemnify and hold Landlord, its agents, and employees harmless from and
against all claims, costs, and liabilities, including attorneys' fees and costs,
arising out of or in connection with Tenant's
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breach of its obligations in this Article 8. Tenant will be solely responsible
for and will protect, defend, indemnify, and hold Landlord, its agents, and
employees harmless from and against any and all claims, costs, and liabilities,
including attorneys' fees and costs, arising out of or in connection with the
removal, cleanup, and restoration work and materials necessary to return the
Premises and any other property of whatever nature located on the Project to
their condition existing prior to the appearance of Tenant's hazardous materials
on the Premises. Tenant's obligations under this Article 8 will survive the
expiration or other termination of this Lease.
8.3 Certain Insurance Risks. Tenant will not do or permit to be done
any act or thing upon the Premises or the Project which would (a) jeopardize or
be in conflict with fire insurance policies covering the Project and fixtures
and property in the Project; (b) increase the rate of fire insurance applicable
to the Project to an amount higher than it otherwise would be for general
administrative office use of the Project; or (c) subject Landlord to any
liability or responsibility for injury to any person or persons or to property
by reason of any business or operation being carried on upon the Premises. If
the rate of fire insurance applicable to the Project increases to an amount
higher than it otherwise would be for general administrative office use, the
increased amount of premiums shall be immediately paid by Tenant as Additional
Rent.
ARTICLE 9 ASSIGNMENT AND SUBLETTING
9.1 General. Tenant, for itself, its heirs, distributees, executors,
administrators, legal representatives, successors, and assigns, covenants that
it will not assign, mortgage, or encumber this Lease, nor sublease, nor permit
the Premises or any part of the Premises to be used or occupied by others,
without the prior written consent of Landlord in each instance, which consent
will not be unreasonably withheld or delayed. Any assignment or sublease in
violation of this Article 9 will be void. If this Lease is assigned, or if the
Premises or any part of the Premises are subleased or occupied by anyone other
than Tenant, Landlord may, after default by Tenant, collect Rent from the
assignee, subtenant, or occupant, and apply the net amount collected to Rent. No
assignment, sublease, occupancy, or collection will be deemed (a) a waiver of
the provisions of this Section 9.1; (b) the acceptance of the assignee,
subtenant, or occupant as Tenant; or (c) a release of Tenant from the further
performance by Tenant of covenants on the part of Tenant contained in this
Lease. The consent by Landlord to an assignment or sublease will not be
construed to relieve Tenant from obtaining Landlord's prior written consent in
writing to any further assignment or sublease. No permitted subtenant may assign
or encumber its sublease or further sublease all or any portion of its subleased
space, or otherwise permit the subleased space or any part of its subleased
space to be used or occupied by others, without Landlord's prior written consent
in each instance. As a condition to its consent required by this Article 9,
Landlord may require Tenant, its assignee or subtenant to agree to make such
alterations to the Premises and the Project that may be necessary in order to
comply with the Americans with Disabilities Act of 1990 and applicable related
Georgia law as it applies to the use, occupancy, or alteration of the Premises,
and to deposit with Landlord 100% of Landlord's reasonable estimate of the cost
of such alterations. Tenant shall at all times remain responsible for the
payment of rent and all other obligations of the Lease hereunder, unless
expressly released in writing by Landlord; such assignee shall assume in writing
all the terms and provisions of this Lease to be performed or observed by
Tenant; and such assignee shall have a minimum net worth of at least equal to
the Tenant.
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9.2 Submission of Information. If Tenant requests Landlord's consent to
a specific assignment or subletting, Tenant will submit in writing to Landlord
(a) the name and address of the proposed assignee or subtenant; (b) the business
terms of the proposed assignment or sublease; (c) reasonably satisfactory
information as to the nature and character of the business of the proposed
assignee or subtenant, and as to the nature of its proposed use of the space;
(d) banking, financial, and other credit information reasonably sufficient to
enable Landlord to determine the financial responsibility and character of the
proposed assignee or subtenant; and (e) the proposed form of assignment or
sublease for Landlord's reasonable approval.
9.3 Factors Determining Reasonableness. In determining whether to grant
consent to Tenant's sublet or assignment request, Landlord may consider any
reasonable factor. Landlord and Tenant agree that any one of the following
factors, or any other reasonable factor, will be reasonable grounds for deciding
Tenant's request: (a) use of the Premises by the proposed subtenant/assignee
must be for general administrative offices; (b) use of the Premises or the
Building in greater intensity than the level of use contemplated by Landlord and
Tenant as reflected in the plans; (c) use of the Premises by the proposed
subtenant/assignee will not violate or create any potential violation of any
laws; (d) use of the Premises will not violate or create any potential violation
of any other agreements affecting the Premises, Landlord or other tenants; (e)
the proposed subtenant/assignee is a prospective tenant of Landlord and Landlord
has other suitable space in the Building to lease to such subtenant/assignee;
(f) the proposed subtenant/assignee is a tenant of Landlord and Landlord has
other suitable space in the Project to lease to such subtenant/assignee; (g) the
expenses of the Building shall be materially increased in excess of that
reasonably expected from normal administrative office use (excluding costs paid
directly by Tenant). Anything in this Section 9.3 to the contrary
notwithstanding, Landlord may deny the proposed sublease or assignment if
Landlord believes, in its sole and absolute discretion, that: (a) the financial
strength of the proposed subtenant/assignee is not satisfactory to Landlord; (b)
the business reputation of the proposed subtenant/assignee is not in accordance
with generally acceptable commercial standards; (b) the proposed use of the
Premises is not consistent with the other businesses in the Building; (c) the
proposed subtenant/assignee and their employees and invitees will utilize more
parking spaces than are in use by Tenant.
9.4 Payments to Landlord. If Landlord consents to a proposed assignment
or sublease, then Landlord will have the right to require Tenant to pay to
Landlord a sum equal to (a) Fifty percent (50%) of any Rent or other
consideration paid to Tenant by any proposed transferee that is in excess of the
Rent allocable to the transferred space then being paid by Tenant to Landlord
pursuant to this Lease; (b) Fifty percent (50%) of any other profit or gain
realized by Tenant from any such sublease or assignment; and (c) Landlord's
reasonable attorneys' fees, consultant fees, and costs incurred in connection
with negotiation, review, and processing of the transfer. All such sums payable
will be payable to Landlord at the time the next payment of Monthly Rent is due.
9.5 Prohibited Transfers. The transfer of a majority of the issued and
outstanding capital stock of any corporate Tenant or subtenant of this Lease, or
a majority of the total interest in any partnership tenant or subtenant, however
accomplished, and whether in a single transaction or in a series of related or
unrelated transactions, will be deemed an assignment of this Lease or of such
sublease requiring Landlord's consent in each instance. For purposes of this
Article 9, the transfer of outstanding capital stock of any corporate tenant
will not include
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any sale of such stock by persons other than those deemed "insiders" within the
meaning of the Securities Exchange Act of 1934, as amended, effected through the
"over-the-counter market" or through any recognized stock exchange.
9.6 Permitted Transfer. Landlord consents to an assignment of this
Lease or sublease of all or part of the Premises to a wholly-owned subsidiary of
Tenant or the parent of Tenant or to any corporation into or with which Tenant
may be merged or consolidated; provided that Tenant promptly provides Landlord
with a fully executed copy of such assignment or sublease, that the use of the
Premises is the same as the Use Permitted under this Lease, that Tenant is not
released from liability under this Lease; and that Tenant agrees to make such
alterations to the Premises and the Project that may be necessary in order to
comply with the Americans with Disabilities Act of 1990 and applicable related
Georgia law as it applies to the use, occupancy, or alteration of the Premises
by the assignee or subtenant.
9.7 Landlord's Recapture Rights. At any time within fifteen (15)
business days after Landlord's receipt of all (but not less than all) of the
information and documents described in Section 9.02 above, Landlord may, at its
option by written notice to Tenant, elect to: (a) sublease the Premises or the
portion thereof proposed to be sublet by Tenant upon the same terms as those
offered to the proposed subtenant; (b) take an assignment of the Lease upon the
same terms as those offered to the proposed assignee; or (c) terminate the Lease
in its entirety or as to the portion of the Premises proposed to be assigned or
sublet, with a proportionate adjustment in the Rent payable hereunder if the
Lease is terminated as to less than all of the Premises. However, if Landlord
elects to terminate the lease or a portion thereof, Tenant shall have the right
to withdraw its request to sublease within three (3) days of receiving
Landlord's written notice to terminate. If Landlord does not exercise any of the
options described in the preceding sentence, then, during the above-described
fifteen (15) business day period, Landlord shall either consent or deny its
consent to the proposed assignment or subletting. If Landlord does not respond
within ten (10) business days, the sublease or assignment shall be deemed to
have been approved.
9.8 Remedies. If Tenant believes that Landlord has unreasonably
withheld its consent pursuant to this Article 9, Tenant's sole remedy will be to
seek a declaratory judgment that Landlord has unreasonably withheld its consent
or an order of specific performance or mandatory injunction of Landlord's
agreement to give its consent; however, Tenant may recover damages if a court of
competent jurisdiction determines that Landlord has acted arbitrarily and
capriciously in evaluating the proposed assignee's or subtenant's
creditworthiness, identity, and business character and the proposed use and
lawfulness of the use.
ARTICLE 10 RULES AND REGULATIONS
Tenant and its employees, agents, licensees, and visitors will at all
times observe faithfully, and comply strictly with, the rules and regulations
set forth in Exhibit D. Landlord may from time to time reasonably amend, delete,
or modify existing rules and regulations, or adopt reasonable new rules and
regulations for the use, safety, cleanliness, and care of the Premises, the
Building, and the Project, and the comfort, quiet and convenience of occupants
of the Project. Modifications or additions to the rules and regulations will be
effective upon written notice to Tenant from Landlord. In the event of any
breach of any rules or regulations or any
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amendments or additions to such rules and regulations, Landlord will have all
remedies that this Lease provides for default by Tenant, and will in addition
have any remedies available at law or in equity, including the right to enjoin
any breach of such rules and regulations. Landlord will not be liable to Tenant
for violation of such rules and regulations by any other tenant, its employees,
agents, visitors, or licensees or any other person. In the event of any conflict
between the provisions of this Lease and the rules and regulations, the
provisions of this Lease will govern.
ARTICLE 11 COMMON AREAS
As used in this Lease, the term "Common Areas" means, without
limitation, any hallways, entryways, stairs, elevators, driveways, walkways,
terraces, docks, loading areas, trash facilities, roof membrane, and all other
areas and facilities in the Project that are provided and designated from time
to time by Landlord for the general nonexclusive use and convenience of Tenant
with other tenants of the Project and their respective employees, customers,
invitees, licensees, or other visitors. Landlord grants Tenant its employees,
invitees, licensees, and other visitors a nonexclusive license for the Term to
use the Common Areas in common with others entitled to use the Common Areas
including, without limitation, Landlord and other tenants of the Project, and
their respective employees, customers, invitees, licensees, and visitors, and
other persons authorized by Landlord, subject to the terms and conditions of
this Lease. Without advance notice to Tenant, except with respect to matters
covered by subsection (a) below, and without any liability to Tenant in any
respect, Landlord will have the right to:
(a) establish and enforce reasonable rules and regulations
concerning the maintenance, management, use and operation of the Common Areas;
(b) close off any of the Common Areas to whatever extent
required in the opinion of Landlord and its counsel to prevent a dedication of
any of the Common Areas or the accrual of any rights by any person or the public
to the Common Areas, provided such closure does not deprive Tenant of the
substantial benefit and enjoyment of the Premises;
(c) temporarily close any of the Common Areas for maintenance,
alteration, or improvement purposes;
(d) select, appoint, or contract with any person for the
purpose of operating and maintaining the Common Areas, subject to such terms and
at such rates as Landlord deems reasonable and proper;
(e) change the size, use, shape, or nature of any such Common
Areas, provided such change does not deprive Tenant of the substantial benefit
and enjoyment of the Premises. So long as Tenant is not thus deprived of the
substantial use and benefit of the Premises, Landlord will also have the right
at any time to change the arrangement or location of, or both, or to regulate or
eliminate the use of, any concourse, parking spaces, garage, or any elevators,
stairs, toilets, or other public conveniences in the Project, without incurring
any liability to Tenant or entitling Tenant to any abatement of rent, and such
action will not constitute an actual or constructive eviction of Tenant; and
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(f) erect one or more additional buildings on the Common
Areas, expand the existing Building to cover a portion of the Common Areas,
convert Common Areas to a portion of the Building, or convert any portion of the
Building to Common Areas. Upon erection or change of location of any building or
structures, the portion of the Project upon which buildings or structures have
been erected will no longer be deemed to be a part of the Common Areas. In the
event of any such changes in the size or use of the Building or Common Areas,
Landlord will make an appropriate adjustment in the rentable area of the
Building and in Tenant's Share payable pursuant to Article 5 of this Lease.
ARTICLE 12 LANDLORD'S SERVICES
12.1 Landlord's Repair and Maintenance. Landlord will maintain,
replace, repair and restore the Common Areas of the Project, including lobbies,
stairs, elevators, corridors, and restrooms, the windows in the Building, the
mechanical, plumbing and electrical equipment serving the Building, roof
membrane and the structure of the Building in reasonably good order and
condition.
12.2 Landlord's Other Services.
(a) Landlord will furnish the Premises with those services
customarily provided in comparable office buildings for general administrative
offices in the vicinity of the Project, including without limitation (1)
electricity for lighting and the operation of low-wattage office machines (such
as desktop micro-computers, desktop calculators, small office copiers, desktop
printers, desktop fax machines, and typewriters) during Business Hours (as that
term is defined below), although Landlord will not be obligated to furnish more
power to the Premises than is proportionally allocated to the Premises under the
Building design; (2) heat and air conditioning reasonably required for the
comfortable occupation of the Promises during the Building's Business Hours; (3)
access and elevator service during the Building's Business Hours; (4) lighting
replacement during the Building's Business Hours (for Building standard lights,
but not for any special Tenant lights, which will be replaced at Tenant's sole
cost and expense); (5) restroom supplies; (6) window washing with reasonable
frequency, as determined by Landlord; and (7) daily cleaning service on
weekdays. Landlord may provide, but will not be obligated to provide, any such
services (except access, electricity, and elevator service) on holidays or
weekends, except 8:00 a.m. to 1:00 p.m. on Saturday, which is considered normal
business hours. Access and elevator service on weekends and holidays may be
restricted by the use of keys, combination locks, access cards or similar entry
systems.
(b) Tenant will have the right to purchase for use during
Business Hours and non-Business Hours the services described in clauses (a)(1)
and (2) in excess of the amounts Landlord has agreed to furnish so long as (1)
Tenant gives Landlord reasonable prior written notice of its desire to do so;
(2) the excess services are reasonably available to Landlord and to the
Premises; and (3) Tenant pays as Additional Rent (at the time the next payment
of Monthly Rent is due) the cost of such excess service at the rate of $17.00
per hour, which to the best of the Landlord's knowledge is the current rate for
such services with no markup. Tenant shall be allowed to receive such excess
services throughout the duration of the lease and any renewal rate at the market
rate Landlord is receiving from their suppliers with no additional markup,
subject
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to the procedures established by Landlord from time to time for providing such
additional or excess services.
(c) The term "Business Hours" means 8:00 am. to 6:00 p.m. on
Monday through Friday, except holidays (as that term is defined below), and 8:00
a.m. to 1:00 p.m. on Saturdays, except holidays. The term "holidays" means New
Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and
Christmas Day.
12.3 Tenant's Costs. Whenever equipment or lighting (other than
Building standard lights) is used in the Premises by Tenant and such equipment
or lighting affects the temperature otherwise normally maintained by the design
of the Building's air conditioning system, Landlord will have the right, after
prior written notice to Tenant, to install supplementary air conditioning
facilities in the Premises or otherwise modify the ventilating and air
conditioning system serving the Premises; and the cost of such facilities,
modifications, and additional service will be paid by Tenant as Additional Rent.
If Landlord reasonably believes that Tenant is using more power than Landlord
furnishes pursuant to Section 12.2, Landlord may install separate meters of
Tenant's power usage, and Tenant will pay for the cost of such excess power as
Additional Rent, together with the cost of installing any risers, meters, or
other facilities that may be necessary to furnish or measure such excess power
to the Premises.
12.4 Limitation on Liability. Landlord will not be in default
of this Lease or be liable to Tenant or any other person for direct, special,
incidental, indirect or consequential damage or otherwise for any failure to
supply any heat, air conditioning, elevator, cleaning, lighting, security, for
surges or interruptions of electricity, or other service Landlord has or may
agree to supply whether or not such loss, or damage results from any fault,
default, negligence, act or omission of Landlord or its agents, servants,
employees, or any other person for whom Landlord is in law responsible. Landlord
reserves the right to discontinue temporarily such services, or any of them, at
such times as may be necessary by reason of accident; unavailability of
employees; repairs, alterations, or improvements; strikes; lockouts; riots; acts
of God; governmental preemption in connection with a national or local
emergency; any rule, order, or regulation of any governmental agency; conditions
of supply and demand that make any product unavailable; Landlord's compliance
with any mandatory governmental energy conservation or environmental protection
program, or any voluntary governmental energy conservation program at the
request of or with consent or acquiescence of Tenant; mandatory or prohibitive
injunction issued in connection with the enforcement of the Americans with
Disabilities Act of 1990 and applicable related Georgia law; or any other
happening beyond the control of Landlord. Landlord will not be liable to Tenant
or any other person or entity for direct, special, incidental, indirect or
consequential damage resulting from the admission to or exclusion from the
Building or Project of any person. In the event of invasion, mob, riot, public
excitement, strikes, lockouts, or other circumstances rendering such action
advisable in Landlord's sole opinion, Landlord will have the right to prevent
access to the Building or Project during the continuance of the same by such
means as Landlord, in its sole discretion, may deem appropriate, including
without limitation locking doors and closing parking areas and other common
areas. Landlord will not be liable for damages to person or property or for
injury to, or interruption of, business for any discontinuance permitted under
this Article 12, nor will such discontinuance in any way be construed as an
eviction of Tenant or cause an abatement of Rent or operate to release Tenant
from any of Tenant's obligations under this Lease.
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ARTICLE 13 TENANT'S CARE OF THE PREMISES
Tenant will maintain the Premises (including Tenant's equipment,
personal property, and trade fixtures located in the Premises) in their
condition at the time they were delivered to Tenant reasonable wear and tear
excluded. Tenant will immediately advise Landlord of any damage to the Premises
or the Project. All damage or injury to the Premises, the Project or the
fixtures, appurtenances, and equipment in the Premises or the Project that is
caused by Tenant, its agents, employees, or invitees may be repaired, restored,
or replaced by Landlord, at the expense of Tenant. Such expense (plus 15% of
such expense for Landlord's overhead) will be collectible as Additional Rent and
will be paid by Tenant within 10 days after delivery of a statement for such
expense.
ARTICLE 14 ALTERATIONS
14.1 General. Tenant will not make or cause to be made any alterations,
additions, or improvements to or of the Premises or any part of the Premises, or
attach any fixture or equipment to the Premises, without first obtaining
Landlord's written consent, which consent shall not be unreasonably withheld,
except for alterations, additions or improvements that will affect the
Building's structure or systems or portions of the Building or Project outside
the Premises, in which case Landlord's consent may be withheld in Landlord's
sole and absolute discretion. Landlord may require Tenant to execute its then
current workletter form as a condition of Landlord's approval. Any alterations,
additions, or improvements to the Premises consented to by Landlord will be made
by Tenant at Tenant's sole cost and expense according to plans and
specifications approved by Landlord, and any contractor or person selected by
Tenant to make them must first be approved by Landlord. Landlord may require, at
its option, that Tenant provide Landlord at Tenant's sole cost and expense a
lien and completion bond, or payment and performance bond, in an amount equal to
twice the estimated cost of any contemplated alterations, fixtures, and
improvements, to insure Landlord against any liability for mechanics' or
materialmen's liens and to ensure the completion of such work. All alterations,
additions, fixtures, and improvements, whether temporary or permanent in
character, made in or upon the Premises either by Tenant or Landlord (other than
furnishings, trade fixtures, and equipment installed by Tenant), will be
Landlord's property and, at the end of the Term of this Lease, will remain on
the Premises without compensation to Tenant. If Landlord requests, Tenant will
remove any or all such alterations, fixtures, and improvements from the Premises
and return the Premises to the condition in which they were delivered to Tenant.
Upon such removal Tenant will immediately and fully repair any damage to the
Premises occasioned by the removal. Landlord will not require Tenant to remove
any alterations, fixtures or improvements that are contained in Tenant's initial
plan. Landlord's consent to any alterations, additions or improvements, or
Landlord's approval of the plans, specifications, and working drawings for such
alterations, additions or improvements shall create no responsibility or
liability on the part of Landlord for their completeness, design sufficiency, or
compliance with all laws, rules and regulations of governmental and
quasi-governmental agencies (including without limitation, ADA Requirements).
14.2 ADA Compliance. If Landlord's consent is granted for any
alteration, addition or improvement to the Premises, Tenant shall at Tenant's
sole cost and expense, make each and every alteration, addition or improvement
to the Premises, the Building or the Project required to
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bring the same into compliance with the requirements imposed by the Americans
with Disabilities Act (42 U.S.C. Section 12101 et seq.), applicable related
Georgia law, and any regulations promulgated pursuant thereto effective from
time to time during the Term of this Lease, and any period of holding over by
Tenant ("ADA Requirements"), if
(a) The requirement for such alteration, addition or
improvement arises as a result of:
(1) Any alteration, addition or improvement by
Tenant.
(2) Any violation by Tenant of any ADA Requirements.
(3) A special use of the Premises or any part thereof
by Tenant or any assignee or subtenant of Tenant (including but not limited to
use for a facility which constitutes, or if open to the public generally would
constitute, a "place of public accommodation" under the ADA Requirements).
(4) The special needs of the employee(s) of Tenant or
any assignee or subtenant of Tenant.
(b) The ADA Requirements would otherwise make Tenant rather
than Landlord primarily responsible for making such alteration or addition.
ARTICLE 15 MECHANICS' LIENS
Tenant will pay or cause to be paid all costs and charges for work (a)
done by Tenant or caused to be done by Tenant, in or to the Premises, and (b)
for all materials furnished for or in connection with such work. Tenant will
indemnify Landlord against and hold Landlord, the Premises, and the Project
free, clear, and harmless of and from all mechanics' liens and claims of liens,
and all other liabilities, liens, claims, and demands on account of such work by
or on behalf of Tenant other than work performed by Landlord pursuant to the
Work Letter. If any such lien, at any time, is filed against the Premises or any
part of the Project, Tenant will cause such lien to be discharged of record
within ten (10) days after the filing of such lien. If a final judgment
establishing the validity or existence of a lien for any amount is entered,
Tenant will pay and satisfy the same at once. If Tenant fails to cause such lien
to be discharged of record as required, Landlord may, at its option, declare
this Lease in material default without further notice or pay such charge and
related costs and interest, and the amount so paid, together with reasonable
attorneys' fees incurred in connection with such lien, will be immediately due
from Tenant to Landlord as Additional Rent. Nothing contained in this Lease will
be deemed the consent or agreement of Landlord to subject Landlord's interest in
the Project to liability under any mechanics' or other lien law. If Tenant
receives written notice that a lien has been or is about to be filed against the
Premises or the Project, or that any action affecting title to the Project has
been commenced on account of work done by or for or materials furnished to or
for Tenant, it will immediately give Landlord written notice of such notice. At
least fifteen (15) days prior to the commencement of any work (including but not
limited to any maintenance, repairs, alterations, additions, improvements, or
installations) in or to the Premises, by or for Tenant, Tenant will give
Landlord written notice of the proposed work and the names and addresses of the
persons supplying labor and materials for the proposed work. Landlord will
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have the right to post notices of non-responsibility or similar written notices
on the Premises in order to protect the Premises against any such liens.
ARTICLE 16 END OF TERM
At the end of this Lease, Tenant will promptly quit and surrender the
Premises broom-clean, in good order and repair, ordinary wear and tear excepted.
If Tenant is not then in default, Tenant may remove from the Premises any trade
fixtures, equipment, and movable furniture placed in the Premises by Tenant,
whether or not such trade fixtures or equipment are fastened to the Building;
Tenant will not remove any trade fixtures or equipment without Landlord's prior
written consent if such fixtures or equipment are used in the operation of the
Building, or if the removal of such fixtures or equipment will result in
impairing the structural strength of the Building. Whether or not Tenant is in
default, Tenant will remove such alterations, additions, improvements, trade
fixtures, equipment, and furniture as Landlord has requested in accordance with
Article 14. Tenant will fully repair any damage occasioned by the removal of any
trade fixtures, equipment, furniture, alterations, additions, and improvements.
All trade fixtures, equipment, furniture, inventory, effects, alterations,
additions, and improvements not so removed will be deemed conclusively to have
been abandoned and may be appropriated, sold, stored, destroyed, or otherwise
disposed of by Landlord without written notice to Tenant or any other person and
without obligation to account for them. Tenant will pay Landlord for all
expenses incurred in connection with the removal of such property, including but
not limited to the cost of repairing any damage to the Building or Premises
caused by the removal of such property. Tenant's obligation to observe and
perform this covenant will survive the expiration or other termination of this
Lease.
ARTICLE 17 EMINENT DOMAIN
(a) The term "total taking" means the taking of the fee title
or Landlord's master leasehold estate by right of eminent domain or other
authority of law, or a voluntary transfer under the threat of the exercise of
the right of eminent domain or other authority, to so much of the Premises or a
portion of the Building or Project as is necessary for Tenant's occupancy that
the Premises are not clearly suitable for the Use Permitted. The term "partial
taking" means a taking of only a portion of the Premises of the Building or
Project that does not constitute a total taking.
(b) If a total taking occurs during the Term of this Lease,
this Lease will terminate as of the date of the taking. The phrase "date of the
taking" means the date of taking actual physical possession by the condemning
authority or such earlier date as the condemning authority gives notice that it
is deemed to have taken possession.
(c) If a partial taking occurs during the Term of this Lease,
either Landlord or Tenant may cancel this Lease by written notice given within
thirty (30) days after the date of the taking, and this Lease will terminate as
to the portion of the Premises taken on the date of the taking. If the lease is
not so terminated, this Lease will continue in full force and effect as to the
remainder of the Premises. The Rent payable by Tenant for the balance of the
Term will be abated in the proportion that the leasable area of the Premises
taken bears to the leasable area of
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the Premises immediately prior to such taking, and Landlord will make all
necessary repairs or alterations to make the remaining Premises a complete
architectural unit.
(d) If more than forty percent (40%) of the Common Areas in
the Project dedicated to customer parking are acquired or condemned under power
of eminent domain or other authority of law, or a voluntary transfer under the
threat of an exercise of the right of eminent domain or other authority, then
the Term of this Lease will terminate as of the date of the taking unless
Landlord takes reasonable steps to provide other parking facilities
substantially equal to the previously existing ratio between the common parking
areas and the leasable area of the Project, and such parking facilities are
provided by Landlord within ninety (90) days from the date of the taking. If
Landlord provides such other parking facilities, then this Lease will continue
in full force.
(e) All compensation and damages awarded for the taking of the
Premises, any portion of the Premises, or the whole or any portion of the Common
Areas or Project will belong to Landlord. Tenant will not have any claim or be
entitled to any award for diminution in value of its rights under this Lease or
for the value of any unexpired Term of this Lease; however, Tenant may make its
own claim for any separate award that may be made by the condemnor for the
taking of or injury to Tenant's improvements, or on account of any cost or loss
Tenant may sustain in the removal of Tenant's trade fixtures, equipment and
furnishing, or as a result of any alterations, modifications, or repairs that
may be reasonably required by Tenant to put the remaining portion of the
Premises not so condemned in a suitable condition for the continuance of
Tenant's occupancy.
(f) If this Lease is terminated pursuant to the provisions of
this Article 17, then all rentals and other charges payable by Tenant to
Landlord under this Lease will be paid up to the date of the taking, and any
rentals and other charges paid in advance and allocable to the period after the
date of the taking will be repaid to Tenant by Landlord. Landlord and Tenant
will then be released from all further liability under this Lease.
ARTICLE 18 DAMAGE AND DESTRUCTION
(a) If the Premises or the portion of the Project or Building
necessary for Tenant's occupancy is damaged or destroyed during the Term of this
Lease by any casualty insurable under standard fire and extended coverage
insurance policies, Landlord will repair or rebuild the Premises to
substantially the condition in which the Premises were immediately prior to such
destruction.
(b) Landlord's obligation under this Article 18 will not
exceed the lesser of (i) with respect to the Premises, the scope of building
standard improvements installed by Landlord in the original construction of the
Premises or (ii) the extent of proceeds actually received by Landlord of any
insurance policy maintained by Landlord.
(c) The Rent will be abated proportionately during any period
in which, by reason of any damage or destruction not occasioned by the
negligence or willful misconduct of Tenant or Tenant's employees or invitees,
there is a substantial interference with the operation of the business of
Tenant. Such abatement will be proportional to the measure of business in the
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Premises that Tenant may be required to discontinue. The abatement will continue
for the period commencing with such destruction or damage and ending with the
completion by Landlord of such work, repair, or reconstruction as Landlord is
obligated to do.
(d) If the Premises, or the portion of the Project or Building
necessary for Tenants occupancy, is damaged or destroyed (i) to the extent of
ten percent (10%) or more of the then-replacement value of either, (ii) in the
last three (3) years of the Term of this Lease, (iii) by a cause or casualty
other than those covered by fire and extended coverage insurance, or (iv) to the
extent that it would take, in Landlord's opinion, in excess of 220 days to
complete the requisite repairs, then Landlord may either terminate this Lease or
elect to repair or restore the damage or destruction. If this Lease is not
terminated pursuant to the preceding sentence, this Least will remain in full
force and effect. Landlord and Tenant waive the provisions of any law that would
dictate automatic termination or grant either of them an option to terminate in
the event of damage or destruction. Landlord's election to terminate under this
paragraph will be exercised by written notice to Tenant given within sixty (60)
days after the damage or destruction. Such notice will set forth the effective
date of the termination of this Lease.
(e) Upon the completion of any such work, repair, or
restoration by Landlord, Tenant will repair and restore all other parts of the
Premises, including without limitation non-building standard leasehold
improvements and all trade fixtures, equipment, furnishings, signs, and other
improvements originally installed by Tenant. Tenant's work will be subject to
the requirements of Article 14.
(f) During any period of reconstruction or repair of the
Premises, Tenant will continue the operation of its business in the Premises to
the extent reasonably practicable.
ARTICLE 19 SUBORDINATION
19.1 General. This Lease and Tenant's rights under this Lease are
subject and subordinate to any ground or underlying lease, mortgage, indenture,
deed of trust, or other lien encumbrance (each a "Superior Lien"), together with
any renewals, extensions, modifications, consolidations, and replacements of
such Superior Lien, now or after the Lease Date affecting or placed, charged, or
enforced against the Land, the Building, or all or any portion of the Project or
any interest of Landlord in them or Landlord's interest in this Lease and the
leasehold estate created by this Lease (except to the extent any such instrument
expressly provides that this Lease is superior to such instrument). This
provision will be self-operative and no further instrument of subordination will
be required in order to effect it. Nevertheless, Tenant will execute,
acknowledge and deliver to Landlord, at any time and from time to time, upon
demand by Landlord, such documents as may be requested by Landlord, any ground
or underlying lessor, or any mortgagee, to confirm or effect any such
subordination. If Tenant fails or refuses to execute, acknowledge, and deliver
any such document within twenty (20) days after written demand, Landlord, its
successors, and assigns will be entitled to execute, acknowledge, and deliver
any and all such documents for and on behalf of Tenant as attorney-in-fact for
Tenant. Tenant by this Section 19.1 constitutes and irrevocably appoints
Landlord, its successors, and assigns as Tenant's attorney-in-fact to execute,
acknowledge, and deliver any and all documents described in this Section 19.1
for and on behalf of Tenant as provided in this Section 19.1.
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19.2 Attornment. Tenant agrees that if any holder of any ground or
underlying lease, mortgage, deed of trust, or other encumbrance encumbering any
part of the Project succeeds to Landlord's interest in the Premises, Tenant will
pay to such holder all rents subsequently payable under this Lease. Further,
Tenant agrees that in the event of the enforcement by the trustee or the
beneficiary under or holder or owner of any such mortgage, deed of trust, or
land or ground lease of the remedies provided for by law or by such mortgage,
deed of trust, or land or ground lease, Tenant will, upon request of any person
or party succeeding to the interest of Landlord as a result of such enforcement,
automatically become the tenant of and attorn to such successor in interest
without change in the terms or provisions of this Lease. Such successor in
interest will not be bound by (a) any payment of Rent for more than one month in
advance, except prepayments in the nature of security for the performance by
Tenant of its obligations under this Lease, or (b) any amendment or modification
of this Lease made without the written consent of such trustee, beneficiary,
holder, owner, or such successor in interest. Upon request by such successor in
interest and without cost to Landlord or such successor in interest, Tenant will
execute, acknowledge, and deliver an instrument or instruments confirming the
attornment. If Tenant fails or refuses to execute, acknowledge, and deliver any
such document within twenty (20) days after written demand, such successor in
interest will be entitled to execute, acknowledge, and deliver any and all such
documents for and on behalf of Tenant as attorney-in-fact for Tenant. Tenant by
this Section 19.2 constitutes and irrevocably appoints such successor in
interest as Tenant's attorney-in-fact to execute, acknowledge, and deliver any
and all documents described in this Section 19.2 for and on behalf of Tenant, as
provided in this Section 19.2.
ARTICLE 20 ENTRY BY LANDLORD
Landlord, its agents, employees, and contractors may enter the Premises
at any time in response to an emergency and at reasonable hours and upon
reasonable prior notice to (a) inspect the same, (b) exhibit the same to
prospective purchasers, lenders, or tenants, (c) determine whether Tenant is
complying with all its obligations in this Lease, (d) supply any service that
this Lease obligates Landlord to provide to Tenant, (e) post notices of
nonresponsibility or similar notices, or (f) make repairs required of Landlord
under the terms of this Lease or make repairs to any adjoining space or utility
services or make repairs, alterations, or improvements to any other portion of
the Project; however, all such work will be done as promptly as reasonably
possible and so as to cause as little interference to Tenant as reasonably
possible. Tenant by this Article 20 waives any claim against Landlord, its
agents, employees, or contractors for damages for any injury or inconvenience to
or interference with Tenant's business, any loss of occupancy or quiet enjoyment
of the Premises, or any other loss occasioned by such entry. Landlord will at
all times have and retain a key with which to unlock all of the doors in, on, or
about the Premises (excluding Tenant's vaults, safes, and similar areas
designated in writing by Tenant in advance). Landlord will have the right to use
any and all means Landlord may deem proper to open doors in and to the Premises
in an emergency in order to obtain entry to the Premises. Any entry to the
Premises obtained by Landlord by any means permitted under this Article 20 will
not under any circumstances be construed or deemed to be a forcible or unlawful
entry into or a detainer of the Premises or an eviction, actual or constructive,
of Tenant from the Premises or any portion of the Premises, nor will any such
entry entitle Tenant to damages or an abatement of Monthly Rent, Additional
Rent, or other charges that this Lease requires Tenant to pay.
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ARTICLE 21 INDEMNIFICATION, WAIVER, AND RELEASE
21.1 Indemnification. Tenant and Landlord will neither bold nor attempt
to hold one another or its employees or agents liable for, and Tenant and
Landlord will, to the greatest extent permitted by law, indemnify and hold
harmless one another, its employees, and agents from and against, any and all
demands, claims, causes of action, fines, penalties, damages (including direct,
special, incidental, indirect or consequential damages), liabilities, judgments,
and expenses (including without limitation attorneys' fees) incurred in
connection with or arising from:
(a) the use or occupancy or manner of use or occupancy of the
Premises by Tenant or any person claiming under Tenant;
(b) any activity, work, or thing done, permitted, or suffered
by Tenant or Landlord in or about the Premises or the Project;
(c) any acts, omissions, or negligence of Tenant or Landlord
or any person claiming under Tenant or Landlord or the contractors, agents,
employees, invitees, or visitors of Tenant or any such person;
(d) any breach, violation, or nonperformance by Tenant or
Landlord or any person claiming under Tenant or the employees, agents,
contractors, invitees, or visitors of Tenant or Landlord or any such person of
any term, covenant, or provision of this Lease or any law, ordinance, or
governmental requirement of any kind; or
(e) any injury or damage to the person, property, or business
of Tenant or Landlord or its employees, agents, contractors, invitees, visitors,
or any other person entering upon the Premises or the Project under the express
or implied invitation of Tenant or Landlord.
If any action or proceeding is brought against Landlord, its employees, or
agents by reason of any such claim for which Tenant has indemnified Landlord,
Tenant, upon written notice from Landlord, will defend the same at Tenant's
expense, with counsel reasonably satisfactory to Landlord.
21.2 Waiver and Release. Tenant as a material part of the consideration
to Landlord for this Lease, by this Section 21.2 waives and releases all claims
against Landlord, its employees, and agents with respect to all matters for
which Landlord has disclaimed liability pursuant to the provisions of this
Lease. Tenant agrees that Landlord, its agents, and its employees will not be
liable for any loss, injury, death, or damage (including direct, special,
incidental, indirect or consequential damages) to persons, property, or Tenant's
business occasioned by theft; act of God; public enemy; injunction; riot;
strike; insurrection; war; court order; requisition; order of governmental body
or authority; fire; explosion; failing objects; steam, water, rain or snow; leak
or flow of water (including fluid from the elevator system), rain or snow from
or into part of the Building or from the roof, street, subsurface, or from any
other place, or by dampness, or from the breakage, leakage, interruption,
obstruction, or other defects of the pipes, sprinklers, wires, appliances,
plumbing, electric, air conditioning or lighting fixtures of the Building; or
from construction, repair, or alteration of any other Premises in the Building
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or the Premises; or from any acts or omissions of any other tenant, occupant, or
visitor of the Building; or from any cause beyond Landlord's control.
ARTICLE 22 SECURITY DEPOSIT
Tenant has deposited the Security Deposit with Landlord as security for
the full, faithful, and timely performance of every provision of this Lease to
be performed by Tenant. If Tenant defaults with respect to any provision of this
Lease, including but not limited to the provisions relating to the payment of
Rent, Landlord may use, apply, or retain all or any part of the Security Deposit
for the payment of any Rent, or any other sum in default, or for the payment of
any other amount Landlord may spend or become obligated to spend by reason of
Tenant's default, or to compensate Landlord for any other loss or damage
Landlord may suffer by reason of Tenant's default. If any portion of the
Security Deposit is so used, applied, or retained, Tenant will within five (5)
days after written demand deposit cash with Landlord in an amount sufficient to
restore the Security Deposit to its original amount. Landlord will not be
required to keep the Security Deposit separate from its general funds, and
Tenant will not be entitled to interest on the Security Deposit. The Security
Deposit will not be deemed a limitation on Landlord's damages or a payment of
liquidated damages or a payment of the Rent due for the last mouth of the Term.
If Tenant fully, faithfully, and timely performs every provision of this Lease
to be performed by it, the Security Deposit or any balance of the Security
Deposit will be returned to Tenant within sixty (60) days after the expiration
of the Term. Landlord my deliver the funds deposited under this Lease by Tenant
to the purchaser of the Building in the event the Building is sold, and after
such time Landlord will have no further liability to Tenant with respect to the
Security Deposit.
ARTICLE 23 QUIET ENJOYMENT
Landlord covenants and agrees with Tenant that so long as Tenant pays
the Rent and observes and performs all the terms, covenants, and conditions of
this Lease on Tenant's part to be observed and performed, Tenant may peaceably
and quietly enjoy the Premises subject, nevertheless, to the terms and
conditions of this Lease, and Tenant's possession will not be disturbed by
anyone claiming by, through, or under Landlord.
ARTICLE 24 EFFECT OF SALE
A sale, conveyance, or assignment of the Building or the Project will
operate to release Landlord from liability from and after the effective date of
such sale, conveyance, or assignment upon all of the covenants, terms, and
conditions of this Lease, express or implied, except those liabilities that
arose prior to such effective date, and, after the effective date of such sale,
conveyance, or assignment, Tenant will look solely to Landlord's successor in
interest in and to this Lease. This Lease will not be affected by any such sale,
conveyance, or assignment, and Tenant will attorn to Landlord's successor in
interest to this Lease, so long as such successor in interest assumes Landlord's
obligations under the lease from and after such effective date.
ARTICLE 25 DEFAULT
25.1 Events of Default. The following events are referred to,
collectively, as "events of default" or, individually, as an "event of default":
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(a) Tenant defaults in the due and punctual payment of Rent
and such default continues for five (5) days after Tenant receives written
notice from Landlord;
(b) This Lease or the Premises or any part of the Premises are
taken upon execution or by other process of law directed against Tenant, or are
taken upon or subject to any attachment by any creditor of Tenant or claimant
against Tenant, and said attachment is not discharged or disposed of within
fifteen (15) days after its levy;
(c) Tenant files a petition in bankruptcy or insolvency or for
reorganization or arrangement under the bankruptcy laws of the United States or
under any insolvency act of any state, or admits the material allegations of any
such petition by answer or otherwise, or is dissolved or makes an assignment for
the benefit of creditors;
(d) Involuntary proceedings under any such bankruptcy law or
insolvency act or for the dissolution of Tenant are instituted against Tenant,
or a receiver or trustee is appointed for all or substantially all of the
property of Tenant, and such proceeding is not dismissed or such receivership or
trusteeship vacated within sixty (60) days after such institution or
appointment;
(e) Tenant fails to take possession of the Premises on the
Commencement Date of the Term;
(f) Tenant breaches any of the other agreements, terms,
covenants, or conditions that this Lease requires Tenant to perform, and such
breach continues for a period of thirty (30) days after written notice from
Landlord to Tenant or, if such breach cannot be cured reasonably within such
thirty (30) day period, if Tenant fails to diligently commence to cure such
breach within thirty (30) days after written notice from Landlord and to
complete such cure within a reasonable time thereafter;
(g) Tenant defaults on any other leases or agreements between
Tenant and Landlord; or
(h) Tenant shall repeatedly default in the timely payment of
Rent or any other charges required to be paid, or shall repeatedly default in
keeping, observing or performing any other covenant, agreement, condition or
provision of this Lease, whether or not Tenant shall timely cure any such
payment or other default. For the purposes of this subsection, the occurrence of
similar defaults three (3) times during any twelve (12) month period shall
constitute a repeated default.
Any notice periods provided for under this Section 25.1 shall run concurrently
with any statutory notice periods and any notice given hereunder may be given
simultaneously with or incorporated into any such statutory notice.
25.2 Landlord's Remedies. If any one or more events of default set
forth in Section 25.1 occurs, then Landlord has the right, at its election:
(a) To give Tenant written notice of Landlord's intention to
terminate this Lease on the earliest date permitted by law or on any later date
specified in such notice, in which case Tenant's right to possession of the
Premises will cease and this Lease will be terminated,
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except as to Tenant's liability, as if the expiration of the term fixed in such
notice were the end of the Term;
(b) Without further demand or notice, to reenter and take
possession of the Premises or any part of the Premises, repossess the same,
expel Tenant and those claiming through or under Tenant, and remove the effects
of both or either, using such force for such purposes as may be necessary,
without being liable for prosecution, without being deemed guilty of any manner
of trespass, and without prejudice to any remedies for arrears of Rent or other
amounts payable under this Lease or as a result of any preceding breach of
covenants or conditions; or
(c) Without further demand or notice to cure any event of
default and to charge Tenant for the cost of effecting such cure, including
without limitation reasonable attorneys' fees and interest on the amount so
advanced at the rate set forth in Section 29.21, provided that Landlord will
have no obligation to cure any such event of default of Tenant
Should Landlord elect to reenter as provided in subsection (b), or should
Landlord take possession pursuant to legal proceedings or pursuant to any notice
provided by law, Landlord may, from time to time, without terminating this
Lease, relet the Premises or any part of the Premises in Landlord's or Tenant's
name, but for the account of Tenant, for such term or terms (which may be
greater or less than the period which would otherwise have constituted the
balance of the Term) and on such conditions and upon such other terms (which may
include concessions of free rent and alteration and repair of the Premises) as
Landlord, in its reasonable discretion, may determine, and Landlord may collect
and receive the Rent. Landlord will in no way be responsible or liable for any
failure to relet the Premises, or any part of the Premises, or for any failure
to collect any rent due upon such reletting. No such reentry or taking
possession of the Premises by Landlord will be construed as an election on
Landlord's part to terminate this Lease unless a written notice of such
intention is given to Tenant. No written notice from Landlord under this Section
25 or under a forcible or unlawful entry and detainer statute or similar law
will constitute an election by Landlord to terminate this Lease unless such
notice specifically so states. Landlord reserves the right following any such
reentry or reletting to exercise its right to terminate this Lease by giving
Tenant such written notice, in which event this Lease will terminate as
specified in such notice.
25.3 Certain Damages. In the event that Landlord does not elect to
terminate this Lease as permitted in Section 25.2(a), but on the contrary elects
to take possession as provided in Section 25.2(b), Tenant will pay to Landlord
Monthly Rent and other sums as provided in this Lease that would be payable
under this Lease if such repossession had not occurred plus the value of any
free rent or other inducements, less the net proceeds, if any, of any reletting
of the Premises after deducting all of Landlord's reasonable expenses in
connection with such reletting, including without limitation all repossession
costs, brokerage commissions, attorneys' fees, expenses of employees, alteration
and repair costs, and expenses of preparation for such reletting. If, in
connection with any reletting, the new lease term extends beyond the existing
Term, or the Premises covered by such new lease include other Premises not part
of the Premises, a fair apportionment of the rent received from such reletting
and the expenses incurred in connection with such reletting as provided in this
Section 25.3 will be made in determining the net proceeds from such reletting,
and any rent concessions will be equally apportioned over the
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term of the new lease. Tenant will pay such rent and other sums to Landlord
monthly on the day on which the Monthly Rent would have been payable under this
Lease if possession had not been retaken, and Landlord will be entitled to
receive such Rent and other sums from Tenant on each such day.
25.4 Continuing Liability After Termination. If this Lease is
terminated on account of the occurrence of an event of default, Tenant will
remain liable to Landlord for damages in an amount equal to Rent and other
amounts that 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 subsequent to such termination, after deducting all
of Landlord's expenses in connection with such reletting, including without
limitation the expenses enumerated in Section 25.3. Landlord will be entitled to
collect such damages from Tenant monthly on the day on which Rent and other
amounts would have been payable under this Lease if this Lease had not been
terminated, and Landlord will be entitled to receive such Monthly Rent and other
amounts from Tenant on each such day. Alternatively, at the option of Landlord,
in the event this Lease is so terminated, Landlord will be entitled to recover
against Tenant as damages for loss of the bargain and not as a penalty:
(a) The worth at the time of award of the unpaid Rent that had
been earned at the time of termination;
(b) The worth at the time of award of the amount by which the
unpaid rent that would have been earned after termination until the time of
award exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided;
(c) The worth at the time of award of the amount by which the
unpaid rent for the balance of the Term of this Lease (had the same not been so
terminated by Landlord) after the time of award exceeds the amount of such
rental loss that Tenant proves could be reasonably avoided;
(d) Any other amount necessary to compensate Landlord for all
the detriment proximately caused by Tenant's failure to perform its obligations
under this Lease or which in the ordinary course of things would be likely to
result therefrom.
The "worth at the time of award" of the amounts referred to in clauses (a) and
(b) above is computed by adding interest at the per annum interest rate
described in Section 29.21 on the date on which this Lease is terminated from
the date of termination until the time of the award. The "worth at the time of
award" of the amount referred to in clause (c) above is computed by discounting
such amount at the discount rate of the Chase Manhattan Bank, at the time of
award plus 1%.
25.5 Acceleration. To the fullest extent permitted by law, Landlord may
declare the entire balance of all forms of Rent due under this Lease for the
remainder of the Lease Term to be forthwith due and payable and may collect the
then present value of such Rents (calculated using a discount equal to the yield
then obtainable from the United States Treasury Bill or Note with a maturity
date closest to the date of expiration of the Lease Term) by distress or
otherwise. The accelerated Additional Rent for Operating Expenses shall be
calculated by multiplying the
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highest Additional Rent amount for Operating Expenses payable by Tenant in any
calendar year times the number of calendar years (including any fractional
calendar year) remaining in the Lease Term following the date of default. If
Landlord exercises the remedy provided in this Subsection 25.5 and collects from
Tenant all forms of Rent owed for the remainder of the Lease Term, Landlord
shall account to Tenant, at the date of the expiration of the Term, for amounts
actually collected by Landlord as a result of a reletting, net of the Tenant's
obligations pursuant to Subsection 25.3 and 25.4.
25.6 Bankruptcy. Without limiting any of the other provisions of this
Default section, in the event of the filing of a petition in bankruptcy by or
against Tenant and if the provisions of 11 U.S.C. Section 365 apply to this
Lease, the following shall apply:
Adequate assurance of prompt cure of defaults. "Adequate assurance' that the
trustee or debtor in possession (collectively hereafter, "trustee") will
promptly cure defaults and promptly compensate Landlord for actual pecuniary
loss, within the meaning of 11 U.S.C. Section 365(b)(1) (A) and (B), shall be
deemed to include, without limitation, the following obligations on the part of
the trustee: (I) The trustee shall have timely performed the obligations of
Tenant under this Lease arising on and after the order for relief; and (ii) any
required cure of defaults and compensation of pecuniary loss under 11 U.S.C.
Section 365(b)(1)(A) and (B) shall be completed within a period of time equal to
the amount of time, if any, Tenant was in default on any obligation to pay
monthly installments of Minimum Annual Rent under this Lease at the time the
bankruptcy case commenced ("the cure period"). The aggregate amount of the
required cure of defaults and compensation of pecuniary loss shall be paid in
equal monthly installments during the cure period.
Adequate assurance of future performance. Except in the event the trustee seeks
to assume and assign this Lease, "adequate assurance of future performance"
within the meaning of 11 U.S.C. Section 365(b)(1)(C) shall be deemed to include,
without limitation, the following obligations on the part of the trustee: (i)
Payment of a post-petition security deposit equal to six (6) times the monthly
installments of Minimum Annual Rent under Section 1(d) of this Lease.
Without limiting any of the other provisions of this Default section, if
pursuant to the Bankruptcy Code, Tenant is permitted to assign this Lease in
disregard of the restrictions contained in Article 9, Assignment or Subletting,
Tenant agrees that the meaning of "adequate assurance of future performance" by
the assignee under the Bankruptcy Code shall include, without limitation, at
least the following: (a) the posting of a security deposit in, or increase of
the existing Security Deposit by, a sum equal to six (6) months' installments of
Minimum Annual Rent, Annual Operating Expenses and Additional Rent for Expenses
at the then current rate; (b) that any such assignee of this Lease shall have a
net worth exclusive of good will equal to at least ten (10) times the sum of all
Minimum Annual Rent, Annual Operating Expenses and Additional Rent payable under
this Lease for the calendar year preceding the year in which such assignment is
intended to become effective; (c) that the proposed assignee must have engaged
in the permitted use of the Premises for at least five (5) years prior to any
such proposed assignment; (d) that possession of the Premises by the proposed
assignee shall not adversely affect Landlord's relationship with any of the
remaining tenants in the Building Project, taking into consideration any and all
other "use" clauses and "exclusivity" clauses which may then exist under their
leases with Landlord, or breach any provision in any other lease, mortgage,
financing
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agreement or other agreement relating to the Building Project by which Landlord
is bound; and (e) that the proposed assignee, in form and substance reasonably
acceptable to Landlord, assumes and agrees to be bound by all of the terms and
conditions of this Lease. If Tenant receives or is to receive any valuable
consideration for such an assignment of this Lease, ninety percent (90%) of such
consideration, after deducting therefrom (1) the brokerage commissions, if any,
and other expenses reasonably incurred by Tenant for such assignment and (2) any
portion of such consideration reasonably designated by the assignee as paid for
the purchase of Tenant's property in the Premises, shall be and become the sole
and exclusive property of Landlord and shall be paid over to Landlord directly
by such assignee. If, pursuant to the provisions of the Bankruptcy Code, Tenant
assumes this Lease and proposes to assign it to any person or entity whom shall
have made a bona fide offer to accept an assignment of this Lease on terms
acceptable to Tenant, then notice of such proposed assignment setting forth: (i)
the name and address of such proposed assignee, (ii) all of the terms and
conditions of such proposed assignment, and (iii) the adequate assurance to be
provided Landlord to assure such proposed assignee's future performance under
the Lease, shall be given to Landlord by Tenant no later than twenty (20) days
after receipt by Tenant, but in any event no later than ten (10) days prior to
the date that Tenant shall make application to a court of competent jurisdiction
for authority and approval to enter into such assumption and assignment, and
Landlord shall thereupon have the prior right and option, to be exercised by
notice to Tenant given at any time prior to the effective date of such proposed
assignment, to accept an assignment of this Lease upon the same terms and
conditions and for the same consideration, if any, as the bona fide offer made
by such proposed assignee, less any brokerage commission which may be payable
out of the consideration to be paid by such assignee for the assignment of this
Lease.
For purposes of the Bankruptcy Code, "adequate protection" of Landlord's
interest in the Premises prior to assumption or assignment of this Lease by
Tenant shall include, but not be limited to, the posting of a security deposit
in, or increase of the existing Security Deposit by, a sum equal to three (3)
months' installments of Minimum Annual Rent, Annual Operating Expenses and
Additional Rent for Expenses at the then current rate.
All attorneys' fees incurred by Landlord in connection with any bankruptcy case
or proceedings, including without limitation, contested matters and meetings of
creditors, involving Tenant or incurred by Landlord in connection with any
defaul