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EXHIBIT 10.23
1100 CORPORATION
THE BISYS GROUP, INC.
OFFICE LEASE
INDEX
ARTICLE TITLE PAGE
1 Demised Premises 1
2 Term 1
3 Rent 1
4 Rent Adjustment 1
5 Increases in Annual Operating Costs 1
6 Additional Rent 3
7 Laws and Ordinances 3
8 Furniture; Fixtures; Electrical Equipment 3
9 Alterations 3
10 Damage 3
11 Condemnation 4
12 Use of Demised Premises 4
13 Repairs by Tenant 4
14 Repairs by Landlord 4
15 Roof Rights 4
16 Landlord's Remedies Upon Default 4
17 Services of Landlord 5
18 Insurance 5
19 Property at Tenant's Risk 5
20 Assignment; Subletting 6
21 Signs 6
22 Rules and Regulations 6
23 Parking 6
24 Landlord Access 6
25 Subordination 6
26 Mortgagee Protection 6
27 Construction of Tenant Improvements by Landlord 6
28 Hold-Over 7
29 Estoppel Certificates 7
30 Quiet Enjoyment 7
31 Delay 7
32 Relocation of Tenant 7
33 Modifications Due to Financing 7
34 Attorneys' Fees 7
35 Notices 7
36 Remedies Cumulative; No Waiver 8
37 Modification 8
38 Waiver of Jury Trial 8
39 Headings 8
40 Applicable Law 8
41 No Option 8
42 Gender; Assigns and Successors 8
43 Severability 8
44 Special Stipulations 8
45 Commission 8
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46 Assignment; Sublease
47 Right to Renew
48 ADA
49 Additional Services or Utilities
50 Coordination of the Work
51 Landlord's Waiver
52 Environmental
53 Tenant Remedies
54 Right of First Offer
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OFFICE LEASE
THIS LEASE, made this 9th day of December, 1999, by and between 1100
CORPORATION (hereinafter "Landlord"); and THE BISYS GROUP, INC., a Delaware
corporation (hereinafter "Tenant").
WITNESSETH:
1. DEMISED PREMISES. For and in consideration of the rent hereinafter
reserved and the mutual covenants hereinafter contained, Landlord does hereby
lease and demise unto Tenant, and Tenant does hereby hire, lease and accept,
from Landlord, Suite No. 1200 and 1300 containing approximately 35,034 rentable
square feet of office space (the "Rentable Area") on the 12th and 13th floors of
the building known as 1100 Circle 75 Parkway (the "Building") located in the
Circle 75 Office Park, at 1100 Circle 75 Parkway, Atlanta, Georgia 30339, (the
"Property") all upon the terms and conditions hereafter set forth. That portion
of the Rentable Area which Tenant shall be entitled to occupy is hereinafter
referred to as the "Demised Premises" or "Premises", and is outlined in red on
the floor plan attached hereto as Exhibit A and by this reference made a part
hereof. It is specifically understood that for purposes of calculating any
payments or pro-rations hereunder, the number of rentable square feet set forth
above shall control.
2. TERM. The term of this Lease shall commence on the date hereof (the
"Lease Date") and shall end eighty-four (84) months after the "Rent Commencement
Date", as hereinafter defined. The "Rent Commencement Date" shall be the day
after Landlord substantially completes "Landlord's Work" in accordance with the
provisions of Article 27 below, or the date Tenant actually commences occupancy
of the Demised Premises for operational purposes, whichever is earlier. In the
event the Rent Commencement Date is a date other than the first day of a
calendar month, the term of the Lease shall run for the number of months set
forth above from the first day of the calendar month following the Rent
Commencement Date. Landlord and Tenant hereby agree to execute a Commencement
Agreement specifying the Rent Commencement Date hereof.
For purposes of this Lease, Landlord's Work shall be deemed to be
"Substantially Complete" upon satisfaction of all of the following requirements:
(i) Landlord's general contractor has certified to Tenant that
all of Landlord's Work has been substantially completed in accordance with the
Construction Drawings (as defined in Article 27 below), except for minor items
which are inconsequential and do not affect Tenant's use or occupancy of the
Demised Premises and which are set forth on a "punch list" delivered to Landlord
no later than thirty (30) days after substantial completion of Landlord's Work,
which "punch list" items will be completed by Landlord within sixty (60) days
after Tenant's submission of such "punch list" to Landlord, but only if Tenant
has supplied a punch list to Landlord within the time period set forth above;
and
(ii) Landlord delivers a Certificate of Occupancy for the
Demised Premises.
3. RENT. Commencing with the Rent Commencement Date, Tenant shall pay
as annual rent for the Demised Premises the sum of Six Hundred Forty Eight
Thousand One Hundred Twenty Nine and 00/100 Dollars ($648,129.00) per annum,
payable in equal monthly installments of Fifty Four Thousand Ten and 75/100
Dollars ($54,010.75) each (the "Initial Base Rent"). All such monthly
installments of rent shall be payable to Landlord or its designated agent, in
advance, without previous notice or demand therefor, and, except as otherwise
specifically stated in Article 53 herein, without deduction or setoff, with the
first monthly installment to be due and payable no later than the Rent
Commencement Date and each subsequent monthly installment to be due and payable
on the first day of each and every month following the Rent Commencement Date
during the term hereof. If the Rent Commencement Date is a date other than the
first day of a month, rent for the period commencing with and including the Rent
Commencement Date until the first day of the following month shall be pro-rated
at the rate of one-thirtieth (1/30th) of the fixed monthly rental per day.
Landlord hereby acknowledges receipt of Fifty Four Thousand Ten and 75/100
Dollars ($54,010.75), which shall constitute prepayment of the first month's
rent.
4. RENT ADJUSTMENT.
(a) At the expiration of each Lease Year (as hereinafter
defined), the Initial Base Rent shall be increased by two percent.
(b) For all purposes of this Lease, the term "Lease Year"
shall be defined to mean a period of twelve (12) calendar months. The first
Lease Year shall commence on the Rent Commencement Date (or on the first day of
the first calendar month following the Rent Commencement Date if said date is
other than the first day of a calendar month), and each succeeding Lease Year
shall commence on the anniversary date of the beginning of the first Lease Year.
5. INCREASES IN ANNUAL OPERATING COSTS. Tenant agrees to pay to
Landlord, as additional rent, its Pro-Rata Share (as hereinafter defined) of any
increases in Annual Operating Costs (as hereinafter defined) above the "Budgeted
Annual Operating Cost" of actual Annual Operating Costs for Fiscal Year 2000
(ending September 30, 2000)(the "Base Year"). Within one hundred eighty (180)
days following each September 30 during the term hereof, Landlord shall furnish
to Tenant a statement (the "Annual Statement") in reasonable detail of the
actual Annual Operating Costs for the prior twelve month period ending September
30 of each year (the "Fiscal Year") after the Base Year.
(a) Tenant shall, within fifteen (15) days of its receipt of
said Annual Statement, pay to Landlord its Pro-Rata Share of the difference
between the actual Annual Operating Cost reflected on said Annual Statement and
the Budgeted Annual Operating Cost set forth above for the same period (which
difference is hereinafter referred to as the "Increase"). Thereafter, commencing
October 1, 2001, Tenant shall pay to Landlord monthly during the term hereof, as
additional rent, without notice or demand therefor and without any
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deduction or setoff whatsoever, except as otherwise specifically stated in
Article 53 herein, an amount equal to one-twelfth (1/12th) of its Pro-Rata Share
of the Increase. Tenant's monthly payment set forth above shall be adjusted as
of each succeeding September 30 to the actual Increase, if any, set forth in
each successive Annual Statement, and such adjustment, if any, shall be paid
within thirty (30) days of the date of said Annual Statement. The amount of any
Increase calculated from time to time pursuant to any Annual Statement shall be
used as the basis for calculating Tenant's monthly payment for the next
succeeding twelve (12) month period.
(b) For the purposes of sub-paragraphs (a) of this paragraph
5, the following provisions shall control:
(i) All monthly payments as may be required thereunder for
the period October 1 through the date of the Annual Statement shall be payable
in full on the first day of each of the calendar month next following the date
of said Annual Statement. Failure of the Landlord to provide any Annual
Statement within the said one hundred eighty (180) day period shall not
constitute a waiver by Landlord of its rights to payments due pursuant to this
paragraph, and the obligations hereunder shall survive the expiration or other
termination of this Lease.
(ii) For any applicable Fiscal Year that begins prior to the
Rent Commencement Date or ends after the expiration date of this Lease, the
Increase for that Fiscal Year shall be apportioned on a per diem basis so that
only that portion of such Increase as is attributable to the portion of such
Fiscal Year that occurs during the term of this Lease, shall be payable by
Tenant.
(d) The total square footage of the Building is 269,049, and
based thereon, the Tenant's Pro-Rata Share as used herein shall mean .130.
(e) Annual Operating Costs as used herein shall include all
costs of operation, maintenance and repair of the Building and its
appurtenances, and shall include the following by way of illustration but not
limitation: Real Estate Taxes (as hereinafter defined), personal property taxes,
insurance, and the cost of labor, materials and services for the operation,
maintenance and repair of the Building and its appurtenances (including parking
areas and the Building's pro-rata share of the operating, maintenance and repair
of Parkway landscaping and the public areas, facilities and amenities of the
Circle 75 Office Park), including but not limited to, water and sewer charges,
garbage and waste disposal, license, permit and inspection fees, heat, light,
power and other utilities, air conditioning and ventilating, elevator services,
plumbing service, janitorial and cleaning service, maintenance and service
contracts, landscaping (including upgrades and replacements thereto), watchmen,
guards, and any personnel engaged in the operation, maintenance or repair of the
Building and its appurtenances together with payroll taxes and employee benefits
applicable thereto, advertising and promotion expenses, management expenses,
legal and accounting fees, and a reserve for asphalt and roof repairs of two
cents ($.02) per square foot of rentable area. In addition, Annual Operating
Costs shall include depreciation for capital expenditures made by Landlord to
reduce operating expenses only if Landlord shall have reasonably determined that
the annual reduction in operating expenses shall exceed depreciation therefor.
Depreciation shall be determined by dividing the original cost of such capital
expenditure by the number of years of useful life of the capital item acquired
and the useful life shall be reasonably determined by Landlord in accordance
with generally accepted accounting principles and practices in effect at the
time of acquisition of the capital item. Notwithstanding the foregoing to the
contrary, Annual Operating Costs shall not include:
(i) expenses incurred in leasing or procuring tenants (including
lease commissions, advertising expenses and expenses of
renovating space for tenants);
(ii) interest or amortization payments on any mortgages or deeds of
trust;
(iii) net basic rents under ground leases;
(iv) costs specifically billed to and paid by specific tenants and
not to tenants generally;
(v) legal fees and other expenses incurred by Landlord or agents
in connection with the negotiations of leases;
(vi) allowances, concessions, permits, licenses, inspections, and
other costs and expenses incurred in the initial build-out of
the Building;
(vii) costs incurred due to violations by Landlord of the terms and
conditions of any lease;
(viii) costs incurred for any item to the extent of Landlord's
recovery under a manufacturer's, materialmen's, vendor's or
contractor's warranty, if any;
(ix) costs of acquisition of sculpture, paintings or other objects
of art;
(x) costs of repairs incurred by reason of condemnation to the
extent Landlord receives compensation therefor through
condemnation or similar awards;
(xi) costs relating to maintaining Landlord's existence, either as
a corporation, partnership, trust or other entity;
(xii) any penalties or interest expenses incurred because of
Landlord's failure to timely pay Real Estate Taxes;
(xiii) costs of any repairs or improvements to the Building resulting
from a fire or other casualty, to the extent such repairs are
covered and reimbursed by the insurance which Landlord
maintains hereunder;
(xiv) except as it pertains to directly to the operation, repair,
maintenance and management of this Building, Landlord's
general overhead expenses;
(xv) costs arising from the removal of hazardous materials in,
about or below the Building or the Property due to
governmental regulations enacted prior to the date hereof.
(f) The term "Real Estate Taxes" means all taxes, rates and
assessments, general and special, levied or imposed with respect to the land,
buildings and improvements of which the Demised Premises are a part of,
including all taxes, rates and assessments, general and special, levied or
imposed for schools, public betterment, general or local improvements and
operations and taxes imposed in connection with any special taxing district. The
term "Real Estate Taxes" does not include any assessments or levies on any
additional buildings constructed on the Property or any recording taxes or other
transactional taxes related to the sale or refinancing of the Property, the
Building, and/or this Lease. If the system of real estate taxation shall be
altered or varied and any new tax or levy shall be levied or imposed on said
land, buildings and improvements, and/or Landlord in substitution for real
estate taxes presently levied or imposed on immovables in the jurisdiction where
the Building is located, then any such new tax or levy shall be included within
the term "Real Estate Taxes". Should any governmental taxing authority acting
under any regulation, levy, assess, or impose a tax, excise and/or assessment
however described (other than an income or franchise tax) upon, against, on
account of, or measured by, in whole or in part, the rent
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expressly reserved hereunder, or upon the rent expressly reserved under any
other leases or leasehold interests in the Property, as a substitute (in whole
or in part) or in addition to any existing real estate taxes on land and
buildings and otherwise, such tax or excise on rents shall be included within
the term "Real Estate Taxes". In the event Landlord is required by the taxing
authority to pay real estate taxes in advance, Tenant agrees that Landlord shall
immediately be reimbursed Tenant's Pro-Rata share upon billing Tenant therefor.
Reasonable expenses (consisting of attorneys' fees, consulting fees, expert
witness fees and similar costs) incurred by Landlord in obtaining or attempting
to obtain a reduction of any Real Estate Taxes shall be added to and included in
the amount of any such Real Estate Taxes. Real Estate Taxes which are being
contested by Landlord shall nevertheless be included for purposes of the
computation of the liability of Tenant under this paragraph, provided, however,
that in the event that Tenant shall have paid any amount of increased rent
pursuant to this Paragraph 5 and the Landlord shall thereafter receive a refund
of any portion of any Real Estate Taxes on which such payment shall have been
based, Landlord shall pay to Tenant the appropriate portion of such refund.
Landlord shall have no obligation to contest, object to or litigate the levying
or imposition of any Real Estate Taxes and may settle, compromise, consent to,
waive or otherwise determine in its discretion to abandon any contest with
respect to the amount of any Real Estate Taxes without consent or approval of
the Tenant.
(g) The Annual Statement furnished by Landlord to Tenant shall
include and show the following:
(1) Budgeted Annual Operating Costs (as defined
above);
(2) Annual Operating Costs for the applicable Fiscal
Year, including Landlord's standard detail for the applicable Fiscal Year and
the amount of Increase;
(3) The amount of any added payments due Landlord for
the applicable Fiscal Year, less any credits for amounts paid, if any; and
(4) The amount of the projected monthly payment for
the next Fiscal Year including the amount or revised amount due for any months
prior to the rendition of the Annual Statement.
(h) Landlord agrees to retain the books and records
substantiating the operating expenses incurred in each calendar year for a
period of one (1) year from the date Landlord submits a statement to Tenant.
Tenant, upon written notice to Landlord delivered within one hundred eighty
(180) days of Tenant's receipt of the pertinent Annual Operating Costs
statement, shall have reasonable access during normal business hours in
Landlord's headquarters office to inspect the books and records of Landlord
relating to Annual Operating Costs and/or to have such books and records audited
or reviewed, at Tenant's expense, for the purpose of verifying the Annual
Operating Costs statement. Tenant shall bear all costs relating to such
inspection, including, but not limited to, costs of photocopies. Any discrepancy
in Tenant's Proportionate Share shall be promptly corrected by a payment of any
shortfall to Landlord by Tenant within thirty (30) days after the applicable
audit, or by a credit against the next payment(s) of Annual Operating Costs due
under this Lease. If (i) Tenant has first notified Landlord of any alleged
discrepancies in Tenant's Proportionate Share of Annual Operating Costs and has
used reasonable efforts to resolve such discrepancy with Landlord prior to
commencing an audit, and (ii) Tenant's audit determines that Tenant's was
overcharged by more than an additional three percent (3%) in excess of its
Pro-Rata Share, and (iii) Landlord either agrees with such audit determination
(or it is judicially determined that such audit results were correct), then, in
addition to any overpayment found to be due to Tenant as set forth above,
Landlord shall reimburse Tenant for an additional amount equal to the reasonable
cost of such audit; notwithstanding the foregoing, Landlord shall not be
obligated to reimburse Tenant for any costs or expenses arising out of an audit
if the person or entity performing such audit is being compensated on a
contingent fee basis. Tenant shall keep the results of any audit of Annual
Operating Costs confidential.
6. ADDITIONAL RENT. Any amounts required to be paid by Tenant hereunder
and any charges or expenses incurred by Landlord on behalf of Tenant under the
terms of this Lease shall be considered additional rental payable in the same
manner and upon the same terms and conditions as the rent reserved hereunder.
Any failure on the part of Tenant to pay such additional rental when and as the
same shall become due shall entitle Landlord to the remedies available to it for
non-payment of rent.
7. LAWS AND ORDINANCES. Tenant will, at its own cost, promptly comply
with and carry out all orders, requirements or conditions now or hereafter
imposed upon it by the ordinances, laws and/or regulations of the municipality,
county and/or state in which the Demised Premises are located, whether required
of Landlord or otherwise, which are made necessary or which pertain to the
specific conduct of Tenant's business in the Demised Premises or any alterations
to the Demised Premises made by Tenant in accordance with Article 8 below,
except that Landlord shall comply with any orders affecting structural walls and
columns or to the Building in general unless compliance is made necessary due
only to Tenant's particular business in the Demised Premises or use of the
Demised Premises. Landlord and Tenant will indemnify and save each other
harmless from all penalties, claims, and demands resulting from such party's
failure or negligence in this respect.
8. FURNITURE; FIXTURES; ELECTRICAL EQUIPMENT.
(a) Tenant shall not place a load upon the floor of the Demised
Premises exceeding eighty (80) pounds per square foot without Landlord's prior
written consent. Business machines, mechanical equipment and materials belonging
to Tenant which cause vibration, noise, cold, heat or fumes that may be
transmitted to the Building or to any other leased space therein to such a
degree as to be objectionable to Landlord or to any other tenant in the Building
shall be placed, maintained, isolated, stored and/or vented by Tenant at its
sole expense so as to absorb and prevent such vibration, noise, cold, heat or
fumes. Tenant shall not keep within or about the Demised Premises any dangerous,
inflammable, toxic or explosive material. Tenant shall indemnify Landlord and
hold it harmless against any and all damage, injury, or claims resulting from
the moving of Tenant's equipment, furnishings and/or materials into or out of
the Demised Premises or from the storage or operation of the same. Any and all
damage or injury to the Demised Premises, the Building, or the Property caused
by such moving, storage or operation shall be repaired by Tenant at Tenant's
sole cost.
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(b) Landlord shall at its expense furnish electric facilities to the
Premises and electricity for lighting and small business machinery only (e.g.,
typewriters, dictating machines, adding machines, calculators, small copiers,
postage machines, teletypes, personal computers and any other small office
equipment) (the Building's current electrical system is capable of furnishing a
minimum of five (5) watts of electrical current per usable square foot). Tenant
will not use any electrical equipment which in Landlord's reasonable business
opinion will overload the wiring installations or interfere with the reasonable
use thereof by other users in the Building. Tenant will not without Landlord's
prior written consent in each instance, which consent shall not be unreasonably
withheld, conditioned or delayed, connect any additional items (e.g., electric
heaters, vending equipment, printing, or duplicating machines, computers [other
than personal computers], auxiliary air conditioners, and non-personal computer
related equipment) to the Building's electrical system, or make any alterations
or additions to the system. Should Landlord grant such consent, all additional
circuits, meters or equipment required therefor shall be installed by Landlord
and the costs of installation, equipment and metering device shall be paid by
Tenant within thirty (30) days of receipt of bill and completion of the work.
The consumption of electricity for such additional equipment shall be paid
monthly by Tenant to Landlord at the prevailing utility company rates. Tenant
shall also pay Landlord for maintenance and consumption of electricity for the
existing supporting air conditioning system serving the twelfth floor computer
telephone room and supplying supplemental cooling on the 13th floor in the
Demised Premises if used by Tenant. Landlord and Tenant agree that in the event
Tenant adds additional equipment which in Landlord's opinion produces enough
heat to cause a comfort problem in the Building or any part thereof (which
opinion shall be in writing and shall be rendered when Tenant seeks permission
to install the same), then Landlord may install a supplemental air conditioner,
and Tenant agrees to pay Landlord for such equipment, installation and
consumption or electricity for supplemental air conditioner. Landlord shall not
be liable for any damages directly or indirectly resulting from the
installation, use or interruption of use of any equipment in connection with the
furnishing of services referred to in this paragraph.
9. ALTERATIONS. Tenant shall make no alterations or changes, structural
or otherwise, to any part of the Demised Premises, either exterior or interior,
without Landlord's written consent. which consent shall not be unnecessarily
withheld, conditioned or delayed. Notwithstanding the foregoing, Tenant may make
interior, non-structural alterations to the Premises if (i) the alterations do
not require the issuance of a governmental permit (i.e., are generally cosmetic
or decorative in nature), and (ii) Tenant provides Landlord with detailed plans
and specifications for all such alterations. All alterations made by Tenant
pursuant to the preceding sentence shall be removed by Tenant prior to the
expiration of the term of this Lease. In the event of any such approved or
permitted changes, Tenant shall have all work done at its own expense. Request
for such consent shall be accompanied by plans stating in detail precisely what
is to be done. Tenant shall comply with the building codes, regulations and laws
now or hereafter to be made or enforced in the municipality, county and/or state
in which said premises are located and which pertain to such work. Any
additions, improvements, alterations and/or installations made by Tenant (except
only office furniture and business equipment) shall become and remain a part of
the Building and be and remain Landlord's property upon the termination of
Tenant's occupancy of said premises; provided, however, that if Landlord gives
written notice to Tenant at the time it gives its consent to the applicable
alterations but in any event prior to actual installation thereof to such
effect, it may require Tenant to restore said Demised Premises to their original
condition at Tenant's sole cost and expense. Tenant shall save Landlord harmless
from and against all expenses, liens, claims or damages to either property or
person which may or might arise by reason of the making of any such additions,
improvements, alterations and/or installations. Landlord reserves the right to
change, increase or reduce, from time to time, the number, composition,
dimensions or location of any parking areas (but in no event below that required
by applicable law), signs, the Building name, service areas, walkways, roadways
or other common areas or make alterations or additions to the Building, in its
sole discretion; provided, however, that Landlord will make no such changes that
would materially and adversely affect Tenant's use of the Demised Premises for
the purposes named herein without first obtaining the consent of Tenant, which
consent shall not be unreasonably withheld, conditioned or delayed.
10. DAMAGE.
(a) If the Demised Premises shall be damaged by fire or other
cause, the damage shall be diligently repaired within a reasonable time by and
at the expense of Landlord, and the rent until such repairs shall have been made
shall abate pro-rata according to the part of the Demised Premises which is
unusable by Tenant. Due allowance shall be made for reasonable delay which may
arise by reason of adjustment of fire insurance on the part of Landlord and/or
Tenant, and for personal delay on account of "labor troubles" or any other cause
beyond Landlord's control. If, however, the Demised Premises are rendered wholly
untenantable by fire or other cause and Landlord shall decide not to rebuild the
same, or if the entire Building be so damaged that Landlord shall decide to
demolish it or not to rebuild it, then or in any of such events, Landlord may,
at its option, cancel and terminate this Lease by giving Tenant, within thirty
(30) days from the date of such damage, notice in writing of its intention to
cancel this Lease, whereupon the term of this Lease shall cease and determine
upon the third day after such notice is given, and Tenant shall vacate the
Demised Premises and surrender the same to Landlord. In neither of the certain
contingencies in this paragraph mentioned shall there be any liability on the
part of Landlord to Tenant covering or in respect of any period during which the
occupation of said Demised Premises by Tenant may not be possible because of the
matters hereinabove stated.
(b) Notwithstanding anything to the contrary contained in this Lease,
if the Demised Premises are damaged or destroyed by fire, accident, the elements
or other casualty (a "Casualty") to the extent that it will not be possible to
rebuild the Premises within one hundred eighty (180) days after the date of the
Casualty, Landlord shall notify Tenant within thirty (30) days after such
Casualty of Landlord's good faith estimate of the time needed to undertake
reconstruction of the Demised Premises. If (i) Tenant is not then in default
under this Lease, and (ii) the damage was not caused by Tenant's negligence or
willful misconduct, Tenant shall have the right to terminate this Lease by
giving to Landlord notice of such termination within fifteen (15) days after
Landlord provides notice of such good faith estimate. In the event that Landlord
or Tenant do not exercise a right of termination as provided in this Lease,
Landlord shall commence to repair the damage caused by such Casualty and,
thereafter, shall diligently and continuously pursue completion of such repairs,
within the estimated completion date as set forth in Landlord's notice. If
Landlord fails to substantially complete the repairs within the estimated
completion date, Tenant shall have the right and option, as its sole and
exclusive remedy upon no less than thirty (30) days prior notice to Landlord to
terminate this Lease; provided, however, that any termination of this Lease by
Tenant shall be null and void if Landlord substantially completes repairs within
thirty (30) days after receipt of Tenant's notice of termination.
11. CONDEMNATION. If the Demised Premises or any part thereof shall be
taken by any governmental or quasi-governmental authority pursuant to the power
of eminent domain, or by deed in lieu thereof, Tenant agrees to make no claim
for
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compensation in the proceedings, and hereby assigns to Landlord any rights which
Tenant may have to any portion of any award made as a result of such taking, and
this Lease shall terminate as to the portion of the Demised Premises taken by
the condemning authority and rental shall be adjusted to such date. The
foregoing notwithstanding, Tenant shall be entitled to claim, prove and receive
in the condemnation proceedings such awards as may be allowed for relocation
expenses and for fixtures and other equipment installed by it which shall not,
under the terms of this Lease, be or become the property of Landlord at the
termination hereof, but only if such awards shall be made by the condemnation
court in addition to and stated separately from the award made by it for the
land and the Building or part thereof so taken.
If the nature, location or extent of any proposed condemnation
affecting the Building is such that Landlord elects in good faith to demolish
the Building, then Landlord may terminate this Lease by giving at least sixty
(60) days' written notice of termination to Tenant within one hundred twenty
(120) days after such condemnation and this Lease shall terminate on the date
specified in such notice.
12. USE OF DEMISED PREMISES. The Demised Premises shall be used and
occupied by Tenant solely for the purpose of general office use, and for no
other purpose whatsoever. Tenant shall permit Landlord to transmit heat, air
conditioning and electric current through the Demised Premises at all times at
Landlord's discretion. Notwithstanding the previous sentence, if Landlord makes
any changes in the Demised Premises relating to the transmittal of heat,
air-conditioning and electrical current not otherwise requested by Tenant which
result in a reduction of usable square footage in the Demised Premises, Tenant
shall have the right to have an exact measurement of the actual usual square
footage of the Demised Premises by a licensed architect engaged by Tenant, at
its expense, and if said measurement indicates that the Demised Premises are
larger or smaller than the size recited in this Lease, the parties hereto shall
promptly execute a supplemental instrument adjusting, as applicable, the amounts
payable by Tenant for Base Rent, Annual Operating Costs and Real Estate Taxes,
to conform to the exact measurement. The Premises shall not be used for any
illegal purpose or in violation of any valid regulation of any governmental
body, or in any manner to (i) create any nuisance or trespass; (ii) annoy or
embarrass Landlord or any other tenant of the Property; (iii) vitiate any
insurance; or (iv) alter the classification or increase the rate of insurance on
the property. Landlord specifically agrees that use of the Demised Premises for
general office use as described in this Article 12 shall not result in any
increase in the cost of insurance.
13. REPAIRS BY TENANT. Tenant agrees to maintain the Demised Premises
and the fixtures therein, (including any special heating, ventilating and air
conditioning equipment or other special installations for Tenant's fixtures and
equipment) in good order and condition during the term of this Lease at its sole
cost and expense, and will, at the expiration or other termination of the term
hereof, surrender and deliver up the same and all keys, locks and other fixtures
connected therewith (except only office furniture and business equipment) in
like good order and condition, as the same is now or shall be at the Rent
Commencement Date, ordinary wear and tear and fire or other casualty excepted.
14. REPAIRS BY LANDLORD. Landlord shall have no duty to Tenant to make
any repairs or improvements to the Demised Premises except structural repairs
necessary for safety and tenantability, and then only if not brought about by
any act or neglect of Tenant, its agents, employees or invitees. Landlord shall
specifically repair the roof and replace the same as necessary to keep the
Demised Premises free and clean of leaks and seeping water, and Tenant shall
have such rights as are more specifically described in Article 53 below if
Landlord fails to timely act. Notwithstanding the aforesaid, Landlord shall not
be liable for any damage caused to the person or property of Tenant, its agents,
employees or invitees, due to the Property or the Building or any part or
appurtenances thereof being improperly constructed or being or becoming out of
repair, or arising from the leaking of gas, water or sewer, or steam pipes, or
from electricity, or from any other cause whatsoever, Tenant agrees to report
immediately in writing to Landlord any defective condition in or about the
Demised Premises known to Tenant which Landlord is required to repair, and a
failure to so report shall make Tenant liable to Landlord for any expense,
damage or liability resulting from such defects.
15. ROOF RIGHTS. Except as otherwise provided in this Lease, Landlord
shall have the exclusive right to use all or any portion of the roof of the
Building for any purposes.
16. LANDLORD'S REMEDIES UPON DEFAULT. In the event Tenant shall default
in the payment, when due, of any installment of rent or other charges or money
obligation to be paid by Tenant hereunder (all of which monetary obligations of
Tenant shall bear interest at the highest rate allowable by law, not to exceed
eighteen percent (18%) per annum, from the date due until paid in full) and
fails to cure said default within five (5) days after the same shall become due;
provided, however, that Tenant shall not be in default with respect to the first
two (2) monetary payments received after such five (5) day period in any Lease
Year unless Tenant fails to cure such default within five (5) days after
Tenant's receipt of written notice of such late payment; or if Tenant shall
default in performing any of the covenants, terms or provisions of this Lease
(other than the payment, when due, of any of Tenant's monetary obligations
hereunder) or any of the Rules and Regulations now or hereafter established by
Landlord to govern the operation of the Building and fails to cure such default
within thirty (30) days after written notice thereof from Landlord; provided,
however, that, solely with respect to non-monetary defaults which cannot with
due diligence and best efforts be cured within such thirty (30) day period if,
within such thirty (30) day period Tenant commences and thereafter diligently
pursues the cure of any such non-monetary default, Tenant shall be granted an
additional reasonable period of time to effect a cure; or if Tenant is
adjudicated a bankrupt; or if a permanent receiver is appointed for Tenant's
property; or if, whether voluntarily or involuntarily, Tenant takes advantage of
any debtor relief proceedings under any present or future law, whereby the rent
or any part thereof, is or is proposed to be, reduced or payment thereof
deferred; or if Tenant makes an assignment for the benefit of creditors; or if
Tenant's property or effects should be levied upon or attached under process
against Tenant, and not satisfied or dissolved within thirty (30) days after
written notice from Landlord to Tenant to obtain satisfaction thereof; then, and
in any of said events, Landlord, at its option may pursue any one or more of the
following remedies without any notice or demand whatsoever:
(a) Landlord, at its option, may at once, or at any time thereafter
prior to such default being cured terminate this Lease by written notice to
Tenant, whereupon this Lease shall end concurrently with the receipt by Tenant
of such notice. Upon such termination by Landlord, Tenant will at once surrender
possession of the Demised Premises to Landlord and remove all of Tenant's
effects therefrom, and Landlord may forthwith re-enter the Premises and
repossess himself thereof, and through legal process remove all persons and
effects therefrom, using such force as may be necessary, without being guilty of
trespass, forcible entry, detainer or other tort.
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(b) Landlord may, without terminating this Lease, through legal process
enter upon and take possession of the Demised Premises and expel or remove
Tenant any other person who may be occupying the Premises or any part thereof,
without being liable for prosecution or any claim for damages therefor, and if
Landlord so elects, make such alterations and repairs as in, in Landlord's
judgment, may be necessary to relet the Premises, and any part thereof for such
rent and for such period of time and subject to such terms and conditions as
Landlord may deem advisable and receive the rent therefor. Upon each such
reletting, all rent received by Landlord from such reletting shall be applied
first to the payment of any indebtedness other than rent due hereunder from
Tenant to Landlord, including interest thereon; second, to the payment of any
loss and expenses of such reletting, including brokerage fees, reasonable
attorneys' fees and the cost of such alterations and repairs; third, to the
payment of rent due and unpaid hereunder, together with interest thereon as
herein provided; and the residue, if any, shall be held by Landlord and applied
in payment of future rent as the same may become due and payable hereunder.
Tenant agrees to pay to Landlord, on demand, any deficiency that may arise by
reason of such reletting. Notwithstanding any such reletting without
termination, Landlord may, at any time thereafter, elect to terminate this Lease
for such prior default.
(c) In the event Landlord terminates this Lease in accordance with the
provisions of this Paragraph 16, Landlord may, in addition to any other remedy
it may have, recover from Tenant all damages and expenses Landlord may suffer or
incur by reason of Tenant's default hereunder, including, without limitation,
the cost of recovering the Premises, reasonable attorneys' fees and the worth at
the time of such termination of the excess, if any, of the amount of rent and
charges equivalent to the rent reserved in this Lease for the remainder of the
stated term over the then reasonable rental value of the Premises for the
remainder of the stated term, discounted at the rate of six percent (6%) per
annum from the date of termination or reentry, all of which sums shall become
immediately due and payable by Tenant to Landlord upon demand of Landlord.
(d) If the rent agreed to be paid, including all other sums of money
which under the provisions hereto are declared to be rent, shall be in arrears
in whole or in part for ten (10) or more days after receipt of written notice,
Landlord may at its option (if such arrearage remains unpaid after ten (10)
days' written notice to Tenant) declare the tenancy hereunder converted into a
tenancy from month to month, and upon giving written notice to Tenant of the
exercise of such option, Landlord shall forthwith be entitled to all provisions
of law relating to the summary eviction of monthly tenants in default in rent.
Pursuit of any of the foregoing remedies shall not preclude Landlord
from pursuing any other remedies herein or at law or in equity provided, nor
shall pursuit of any remedy by Landlord constitute a forfeiture or waiver of any
rent due to Landlord hereunder or of any damages accruing to Landlord by reason
of Tenant's violation of any of the covenants and provisions of this Lease.
Anything in this Lease to the contrary notwithstanding, in order to
cover the extra expense involved in handling delinquent payments, Tenant shall
pay a "late charge" of $150.00 when any installment of rent (basic or any other
sum which may be considered additional rental under this Lease) is paid more
than five (5) days after the due date thereof. It is hereby understood that this
charge is for extra expenses incurred by the Landlord in processing the
delinquency.
17. SERVICES OF LANDLORD.
(a) Landlord shall furnish reasonably adequate electric
current as required under this Lease, water and lavatory supplies during normal
business hours, and normal and usual cleaning and janitorial service after
business hours. Landlord further agrees to furnish elevator services and heat
and air conditioning in its judgment sufficient to reasonably cool or heat the
Demised Premises from 8:00 a.m. to 6:00 p.m., Monday through Friday inclusive;
and from 9:00 a.m. to 1:00 p.m., Saturdays (said services not being furnished on
Sundays or legal holidays as observed by the Landlord), provided, however, that
Landlord shall not be liable for failure to furnish or for suspension in delay
in furnishing such services due to breakdown, maintenance, or repair work,
strike, riot, civil commotion, governmental action or any other cause beyond the
reasonable control of Landlord. Notwithstanding the foregoing, in the event that
utility services are unavailable for reasons other than Tenant's negligence or
wrongful acts for a period in excess of three (3) consecutive days, the Rent
hereunder shall abate for each remaining day during which such utility service
remains unavailable.
(b) Landlord shall ensure that the heating, ventilating and
air-conditioning ("HVAC") system serving the Demised Premises shall meet the
following performance criteria:
(1) Summer Conditions: The entire air conditioning system for
all spaces is to maintain a 76 degrees Fahrenheit Dry Bulb temperature, plus or
minus 4 degrees Fahrenheit, and a 50% relative humidity, plus or minus 5%, at 92
degrees Fahrenheit Dry Bulb outdoor temperature;
(2) Winter Conditions: The entire heating system for all
spaces is to maintain a 72 degrees Fahrenheit Dry Bulb temperature, plus or
minus 4 degrees Fahrenheit, at 14 degrees Fahrenheit Dry Bulb outdoor
temperature;
(3) The HVAC system shall at all times provide fresh air in a
quantity of not less than .05 cubic feet per minute per square foot of floor
area.
(c) Landlord shall also furnish hot and cold water at all
times for lavatory, cleaning and drinking purposes.
(d) Landlord shall also furnish a Building-wide security
system including a card access system for after-business-hour entry and security
guard patrols during non-business hours.
18. INSURANCE
(a) Tenant agrees to indemnify and save Landlord harmless from
any and all liabilities, damages, causes of action, suits, claims, judgments,
costs and expenses of any kind (including reasonable attorneys fees): (i)
relating to or arising from or in
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connection with the possession, use, occupation, management, repair, maintenance
or control of the Demised Premises, or any portion thereof; (ii) arising from or
in connection with any act or omission of Tenant or Tenant's agents, employees
or invitees; or (iii) resulting from any default, violation or injury to person
or property or loss of life sustained in or about the Demised Premises
(excluding common areas). To assure such indemnity, Tenant shall carry and keep
in full force and effect at all times during the term of this Lease for the
protection of Landlord and Tenant herein, public liability insurance with limits
of at least One Million Dollars ($1,000,000.00) for each occurrence and Five
Hundred Thousand Dollars ($500,000.00) for each separate injury and property
damage insurance in the amount of One Hundred Thousand Dollars ($100,000.00),
with an insurance company licensed to do business in the State of Georgia and
having a rating of at least A-7 in Best's Key Rating Guide, and deliver to
Landlord a copy of said policy or certificate showing the same to be in full
force and effect.
(b) Said public liability and property damage insurance
policies and any other insurance policies carried by Tenant with respect to the
Demised Premises shall: (i) be issued in form reasonably acceptable to Landlord
by good and solvent insurance companies qualified to do business in the state in
which the Demised Premises is located and reasonably satisfactory to Landlord;
(ii) be issued in the names of Landlord, Landlord's mortgagee or deed of trust
holder (if and as designated in writing by Landlord) and Tenant; (iii) be
written as primary policy coverage and not contributing with or in excess of any
coverage which Landlord may carry; (iv) provide for 10 days' prior written
notice to Landlord of any cancellation or other expiration of such policy or any
defaults thereunder; and (v) contain an express waiver of any right of
subrogation by the insurance company against Landlord. Neither the issuance of
any insurance policy required hereunder, nor the minimum limits specified herein
with respect to Tenant's insurance coverage shall be deemed to limit or restrict
in any way Tenant's liability arising under or out of this Lease.
(c) Landlord shall maintain (i) public liability insurance on
the common areas of the Building in amounts not less than those set forth in
paragraph (a) of this Article 18 and (ii) Property Insurance for full
replacement cost of the Building in an amount sufficient to avoid co-insurance.
(d) Landlord will defend (with counsel selected by Landlord)
and indemnify Tenant, its officers, directors, employees and agents and save it
harmless from and against any and all claims, suits, judgements, actions,
damages, costs, liability and expense of any kind (including reasonable attorney
fees) in connection with loss of life, personal injury and/or damage to property
arising from or out of the common areas of the Building (including the parking
area and any common area outside the Building but on the Property) occasioned by
any negligent act or omission of Landlord, its agents, contractors or employees.
(e)(1) To the extent permitted by law, each of Landlord and
Tenant hereby releases the other, to the extent of all insurance carried (or
required to be carried) by each party under the terms of this Lease, from
liability for any loss or damage caused by fire or other of the extended
casualties insured against; provided, however, that this release shall be in
force and effect only with respect to loss or damage occurring during such time
as the releasing party's insurance policy contain a clause or clauses which
provides that: (i) the insurance company waives subrogation or consents to a
waiver of right of recovery, and (ii) such waiver of subrogation or consent to a
waiver of a right of recovery does not adversely affect or prejudice said policy
or the releasing party's right of full recovery thereunder. Landlord's release
of Tenant under this subparagraph 18 (e) is expressly conditioned upon Tenant's
full cooperation with Landlord's insurance carrier in inspections of the Demised
Premises and Tenant's compliance with all requirements imposed by Landlord's
insurance carrier with respect to any activities in or use of the Demised
Premises which increases the risk of loss to the Building or the Demised
Premises.
(2) If a party advises the other party that a clause of the
type described in paragraph (1) above is (i) not obtainable, or (ii) only
obtainable at additional cost, then such party shall not be obligated to obtain
a waiver; provided, however, that with respect to an inability to obtain a
waiver due to the imposition of additional cost, the party shall promptly notify
the other party of the amount of such additional cost and, if the party desiring
that the other party obtain a waiver agrees in writing to pay the additional
cost of obtaining the waiver, then, upon receipt of such payment, that party
shall obtain a waiver of subrogation for the benefit of the other party, as
described in paragraph (e)(1) above To the extent that Tenant is permitted to
self insure as to its personal property located in the Premises, Tenant will
nevertheless be deemed to be insured for such personal property for the purposes
of this paragraph (e).
19. PROPERTY AT TENANT'S RISK. It is understood and agreed that all
personal property in the Demised Premises, of whatever nature, whether owned by
Tenant or any other person, shall be and remain at Tenant's sole risk and
Landlord shall not assume any liability or be liable for any damage to or loss
of such personal property, arising from the Bursting, overflowing, or leaking of
the roof or of water or sewer, steam pipes, or from heating or plumbing fixtures
or from the handling of electric wires or fixtures or from any other cause
whatsoever.
20. ASSIGNMENT; SUBLETTING. Landlord hereby grants the right to possess
and enjoy the use of the Demised Premises to Tenant, but no estate shall pass
out of Landlord; it being understood and agreed that Tenant has only a usufruct
not subject to levy or sale. Tenant will not assign, transfer, mortgage or
encumber this lease or sublet or rent (or permit occupancy or use of) the
Demised Premises, or any part thereof, without obtaining the prior written
consent of Landlord; nor shall any assignment or transfer of this lease be
effectuated by operation of law or by transfer of any interest in tenant or
otherwise without the prior written consent of Landlord. The consent by Landlord
to any assignment or subletting shall not be construed as a waiver or release of
Tenant from the terms of, or Tenant's liability under, any covenant or
obligation under this lease, nor shall any such assignment or subletting be
construed to relieve Tenant from obtaining the consent in writing of Landlord to
any further assignment or subletting.
Anything in this Lease to the contrary notwithstanding, in order to
cover the extra expense involved in handling Landlord consent of assignment or
subletting, Tenant shall pay a "sublease/assignment fee" of $500.00 when any
sublease or assignment is submitted to the Landlord for its consent. It is
understood that this charge is for extra expenses incurred by the Landlord in
processing the sublease or assignment. SEE SPECIAL STIPULATION NO. 46
21. SIGNS. No sign, advertisement or notice shall be inscribed,
painted, affixed or displayed on the windows or exterior walls of the Demised
Premises or on any public area of the Building, except the directories and the
office doors, and then only in such
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places, numbers, sizes, color and style as are approved by Landlord and which
conform to all applicable laws and/or ordinances. Any and all permitted signs
shall be installed and maintained by Landlord at Tenant's sole expense. Landlord
shall provide signage for Tenant on the Building directory and shall permit
Tenant to install its standard logo on the doors of the Demised Premises.
22. RULES AND REGULATIONS. Tenant shall at all times comply with the
rules and regulations set forth on Exhibit B attached hereto, and with any
additions thereto and modifications thereof adopted from time to time by
Landlord, and each such rule or regulation shall be deemed to be a covenant of
this Lease to be performed and observed by Tenant.
23. PARKING. Landlord grants Tenant at no additional cost the
non-exclusive, unassigned, right to use the parking area or areas designated by
the Landlord from time to time. Tenant hereby agrees to comply with all traffic
and parking rules and regulations imposed by Landlord from time to time.
24. LANDLORD ACCESS. Landlord may enter the Demised Premises at all
reasonable hours and upon reasonable advance notice (which may be by telephone)
to exhibit the same to prospective purchasers, mortgagees or tenants, to inspect
the Premises to see that Tenant is complying with all its obligations hereunder,
to make repairs required of Landlord under the terms hereof or to make repairs
to Landlord's adjoining property. Such entry by Landlord (i) shall, at Tenant's
option, be in the presence of a representative of Tenant, and (ii) shall not
unreasonably interfere with the operation of Tenant's business on the Demised
Premises.
25. SUBORDINATION
(a) This Lease is subject and subordinate to the lien of any mortgage
or deeds to secure debt, which may now or hereafter affect or encumber the
Building or the real property of which the Demised Premises form a part and to
all renewals, modifications, consolidations, replacements or extensions thereof.
This paragraph shall be self-operative and no further instrument of
subordination shall be required. In confirmation of any such subordination,
Tenant shall execute within fifteen (15) days after receipt, any certificate
that Landlord may reasonably so request, provided the same contains appropriate
language of non-disturbance. Tenant covenants and agrees to attorn to Landlord
or to any successor to Landlord's interest in the Demised Premises, whether by
sale, foreclosure or otherwise.
(b) Notwithstanding the foregoing, in the event any such first
mortgagee or the holder of any deed to secure debt shall elect to make the lien
of this Lease prior to the lien of its mortgage or deed to secure debt, then,
upon such party giving Tenant written notice to such effect, this Lease shall be
deemed to be prior in lien to the lien of such mortgage or deed to secure debt,
whether dated prior or subsequent thereto.
(c) Landlord will use reasonable efforts to obtain a non-disturbance
agreement for Tenant's benefit from the lender holding the mortgage lien on the
Property as of the Lease Date (the "Lender") within one hundred fifty (150) days
of the Lease Date. The non-disturbance agreement shall be on the Lender's
approved form, and Tenant shall pay to Landlord, as additional rent, all fees,
costs and expenses charged to Landlord by the Lender in connection with the
Lender's review of this Lease and negotiation or review of the non-disturbance
agreement including, without limitation, the Lender's legal fees.
26. MORTGAGEE PROTECTION. Tenant agrees to give any Mortgagees and/or
Trust Deed Holders, by Certified or Registered Mail or by delivery by a
reputable overnight carrier, a copy of any Notice of Default served upon
Landlord, provided that prior to such notice Tenant has been notified, in
writing, (by way of Notice of Assignment of Rents and Leases, or otherwise) of
the address of such Mortgagees and/or Trust Deed Holders. Tenant further agrees
that if Landlord shall have failed to cure such default within the time provided
for in this Lease, then the Mortgagees and/or Trust Deed Holders shall have an
additional thirty (30) days within which to cure such default or if such default
cannot be cured within that time, then such additional time as may be necessary
if within such thirty (30) days, any Mortgagee and/or Trust Deed Holder has
commenced and is diligently pursuing the remedies necessary to cure such default
(including but not limited to commencement of foreclosure proceedings, if
necessary to effect such cure), in which event this Lease shall not be
terminated while such remedies are being so diligently pursued. Tenant agrees
that in the event of the sale of the Property, by foreclosure or deed in lieu
thereof, the purchaser at such sale shall only be responsible for the return of
any security deposit paid by Tenant to Landlord in connection with this Lease to
the extent that such purchaser actually receives such security deposit.
27. CONSTRUCTION OF TENANT IMPROVEMENTS BY LANDLORD.
(a) Landlord shall, within one hundred twenty five (125) days after the
date the plans are approved by Landlord pursuant to this Article 27, install and
construct in the Demised Premises certain improvements required to make the
Demised Premises suitable for use by Tenant in Tenant's business, which
improvements are more specifically described in the attached Exhibit C. For
purposes of this Article 27, the "Construction Commencement Date" shall mean the
day after Tenant has approved the "Estimate" (as hereinafter defined) in
accordance with Article 27 (c) below.
(b) Tenant shall, within fifteen (15) days from the date hereof,
provide Landlord with schematic plans and specifications (the "Plans") showing
the work which Tenant desires Landlord to perform in the Demised Premises.
Within fifteen (15) days after Tenant submits plans and specifications to
Landlord, Landlord shall advise Tenant that Landlord has either (a) approved the
Plans or (b) disapproved the plans, in which event Landlord shall specify in
writing in what respects the Plans are not acceptable to Landlord and what
revisions to the Plans will be required in order to make the Plans acceptable to
Landlord, in which event Tenant shall promptly revise the Plans in order to
accommodate the revisions required by Landlord. If Landlord does not approve or
disapprove the Plans submitted to it by Tenant within fifteen (15) days after
the Plans have been received by Landlord, the Plans shall be deemed to be
approved by Landlord, and the Demised Premises shall be renovated in accordance
with the Plans submitted by Tenant. Within thirty (30) days after Landlord's
approval of the Plans, Tenant shall provide to Landlord construction drawings
and specifications, consistent with the approved Plans, and sufficient for
Landlord to bid out and construct all improvements desired by Tenant in the
Demised Premises (the "Construction Drawings"). The Plans and Construction
Drawings for Landlord's work shall be subject to Landlord's approval, which
shall not be unreasonably withheld.
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(c) Tenant shall cause the Plans for the design of the Demised Premises
to be performed in a good and professional manner and in accordance with all
applicable laws, including but not limited to the Americans with Disabilities
Act of 1991, as amended. Landlord shall construct the Demised Premises in
accordance with the Plans in a good, professional and lien free manner.
(d) Landlord shall pay all costs and expenses incurred in remodeling
the Demised Premises in accordance with the approved Plans and the Construction
Drawings to the extent that such costs and expenses, including design and
engineering expenses, Landlord's construction management fee and contractor's
fee, do not exceed Five Hundred Twenty Five Thousand Five Hundred Ten Dollars
($525,510.00). Within twenty (20) days after completion and approval of the
Construction Drawings, Landlord shall advise Tenant of the estimated cost of
Landlord's Work (the "Estimate"), and if the Estimate exceeds the sum of Five
Hundred Twenty Five Thousand Five Hundred Ten Dollars ($525,510.00), Tenant
shall either (i) within five (5) days after receipt of the Estimate, revise or
amend the approved Plans and the Construction Drawings in order to reduce the
cost of remodeling the Demised Premises to less than Five Hundred Twenty Five
Thousand Five Hundred Ten Dollars ($525,510.00), or (ii) deposit with Landlord
the amount by which the cost of the Landlord's Work, as reflected in the
Estimate, exceeds Five Hundred Twenty Five Thousand Five Hundred Ten Dollars
($525,510.00). If Tenant fails to revise or amend the Plans and the Construction
Drawings, as aforesaid, Tenant shall be deemed to have exercised the option set
forth in clause (ii) above. Notwithstanding the foregoing if, as a result of
change orders or unexpected conditions, the cost of performing Landlord's Work
exceeds the Estimate, Tenant shall nevertheless pay all such additional amounts
to Landlord in accordance with this Article 27.
(e) Landlord shall construct the Demised Premises in accordance with
the Construction Drawings in a good, professional and lien free manner, and
Landlord shall (subject to delays caused by Tenant or resulting from the
occurrence of events of force majeure) diligently pursue the renovation of the
Demised Premises so that Landlord's Work in the Demised Premises will be
substantially complete within one hundred twenty five (125) days after the
Construction Commencement Date and, if such work is not substantially completed
within such period, Tenant may, as its sole and exclusive remedy, terminate this
Lease on the date falling thirty (30) days after Landlord's receipt of Tenant's
notice of termination; provided, however, that if Landlord substantially
completes Landlord's Work prior to the expiration of such thirty (30) day
period, then Tenant's notice of termination shall be null and void and this
Lease shall remain in full force and effect; provided, further, that if
circumstances beyond Landlord's reasonable control (including, without
limitation, force majeure or Landlord's inability to get appropriate
governmental permits required for such renovation) prevent Landlord from
completing such renovations by such date, then the period for Landlord to
perform such work shall be extended by an amount of time by which Landlord was
unable to perform it work as a result of such delay.
(f) For purposes of this Lease, Landlord's Work shall be deemed to be
"Substantially Complete" upon satisfaction of all of the following requirements:
(i) Landlord's general contractor has certified to Tenant that
all of Landlord's Work has been substantially completed in accordance
with the Construction Drawings, except for minor items which are
inconsequential and do not affect Tenant's use or occupancy of the
Demised Premises and which are set forth on a "punch list" delivered to
Landlord within thirty (30) days after substantial completion of
Landlord's Work, which "punch list" items will be completed by Landlord
within sixty (60) days after Tenant's submission of such "punch list"
to Landlord, but only if Tenant has supplied a punch list to Landlord
within the time period set forth above; and
(ii) The heating, ventilation, air-conditioning, electric,
water, plumbing, lavatory and sprinklers systems in the Demised
Premises are in good working order.
28. HOLD-OVER. If Tenant shall not immediately surrender the Demised
Premises on the day after the end of the term hereby created, then Tenant shall,
by virtue of this agreement, become a Tenant by the month at twice the rental
agreed by said Tenant to be paid as aforesaid, commencing said monthly tenancy
with the first day next after the end of the term above demised; and said
Tenant, as a monthly Tenant, shall be subject to all of the conditions and
covenants of this Lease as though the same had originally been a monthly
tenancy. Each party hereto shall give to the other at least thirty (30) days'
written notice to quit the Demised Premises, except in the event of non-payment
of rent in advance or of the other additional rents provided for herein when
due, or of the breach of any other covenant by the said Tenant, in which event
Tenant shall not be entitled to any notice to quit, the usual thirty (30) days'
notice to quit being expressly waived; provided, however, that in the event that
Tenant shall hold over after expiration of the term hereby created, and if
Landlord shall desire to regain possession of said Premises promptly at the
expiration of the term aforesaid, then at any time prior to the acceptance of
the rent by Landlord from Tenant, as a monthly Tenant hereunder, Landlord, at
its election or option, may re-enter and take possession of the Demised Premises
forthwith, without process, or by any legal action or process in force in the
State in which the Demised Premises is located.
29. ESTOPPEL CERTIFICATES. Tenant agrees, at any time and from time to
time, upon not less than twenty (20) days' prior written notice by Landlord, to
execute, acknowledge and deliver to Landlord or to such person(s) as may be
designated by Landlord, a statement in writing (i) certifying, if true. that
Tenant is in possession of the Demised Premises, has unconditionally accepted
the same and is currently paying the rents reserved hereunder, (ii) certifying
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the Lease is in full force and effect as modified and
stating the modifications), (iii) stating the Rent Commencement Date and the
dates to which the rent and other charges hereunder have been paid by Tenant and
(iv) stating whether or not to the best knowledge of Tenant, Landlord is in
default in the performance of any covenant, agreement or condition contained in
this Lease, and, if so, specifying each such default of which notices to
Landlord should be sent. Any such statement delivered pursuant hereto may be
relied upon by any owner, prospective purchaser, mortgagee or prospective
mortgagee of the Building or of Landlord's interest therein, or any prospective
assignee of any such mortgagee.
30. QUIET ENJOYMENT. Landlord warrants that it has the right to make
this Lease for the term aforesaid and that it will put Tenant into complete and
exclusive possession of the Demised Premises. Landlord covenants that if Tenant
pays the rent and all other charges provided for herein, performs all of its
obligations provided for hereunder and observes all of the other provisions
hereof, Tenant
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shall at all times during the term hereof peaceably and quietly have, hold and
enjoy the Demised Premises, without any interruption or disturbance from
Landlord, or anyone claiming through or under Landlord, subject to the terms
hereof.
31. DELAY. In the event Landlord for any reason is unable to deliver
possession of the Demised Premises to Tenant on or before the Rent Commencement
Date, at Landlord's option, this Lease shall remain in full force and effect and
Tenant shall have no claim against Landlord by reason of any such delay but no
rent shall be payable during the pendency of any such delay, or upon written
notice to Tenant, Landlord may terminate this Lease and, except for the return
of any security deposit or prepaid rent, Landlord shall have no further
obligation or liability to Tenant. In the event that Landlord does not so
terminate this Lease, at such time as Landlord tenders possession of the Demised
Premises to Tenant in writing, Tenant shall commence payment of rent pursuant to
Paragraph 3 hereof, and the expiration date of the term of this Lease shall be
extended for a period equal to the period of such delay. In the event of any
such delay, Tenant shall execute a commencement agreement specifying the date on
which possession of the Demised Premises was tendered by Landlord.
32. RELOCATION OF TENANT. Intentionally deleted.
33. MODIFICATIONS DUE TO FINANCING. In the event that any mortgagee of
the Building or the land upon which the Building is located or of Landlord's
interest therein requires, as a condition of such financing, that modifications
to this Lease be obtained, and provided that such modifications (i) do not
affect Tenant's use of the Demised Premises as herein permitted; (ii) do not
increase the rent or other sums required to be paid by Tenant hereunder; (iii)
are made prior to a date which in one hundred twenty (120) days after the Lease
Date hereof; and (iv) do not increase the burdens, obligations or liabilities of
Tenant and do not decrease the burdens, obligations or liabilities of Landlord
or the benefits to Tenant under this Lease; then Landlord may submit to Tenant a
written amendment to this lease incorporating such required changes. Tenant
shall execute such reasonable amendment within twenty (20) days after the same
has been submitted to Tenant. Landlord shall reimburse Tenant for its reasonable
cost incurred reviewing the amendment, including reasonable attorneys' fees.
34. ATTORNEYS' FEES. If any rent owing under this lease is collected by
or through an Attorney at Law, Tenant agrees to pay any costs or expenses,
including attorneys fees, incurred by Landlord. Tenant waives all homestead
rights and exemptions which he may have under any law as against any obligation
owing under this lease and assigns same to Landlord.
35. NOTICES. All notices required or desired to be given hereunder by
either party to the other shall be sent, postage prepaid, by certified or
registered mail or by overnight mail by any recognized overnight courier. All
rents and other monetary obligations arising hereunder, and all notices to the
respective parties shall be addressed and sent as follows:
If to Landlord:
NOTICES AND CORRESPONDENCE WITH A COPY TO: RENT AND OTHER PAYMENTS
- -------------------------- --------------- -----------------------
1100 Corporation Company Franklin Property Company c/o Franklin Property
c/o Franklin Property Company 900 Circle 75 Parkway P.O. Box 64772
8401 Connecticut Avenue Suite 100 Baltimore, Maryland 21264
Chevy Chase, Maryland 20815 Atlanta, Georgia 30339
If to Tenant: WITH A COPY TO:
The Bisys Group, Inc. SCARINCI & HOLLENBECK
1100 Circle 75 Parkway 500 Plaza Drive, P.O. Box 3189
Suite 1200 Secacus, NJ 07096-3189
Atlanta, GA 30339 Attn: Victor E. Kinon, Esq.
36. REMEDIES CUMULATIVE; NO WAIVER. All rights and remedies given
herein and/or by law or in equity to Landlord are separate, distinct and
cumulative, and no one of them, whether exercised by Landlord or not, shall be
deemed to be in exclusion of any of the others. No failure of Landlord to
exercise any power given Landlord hereunder, or to insist upon strict compliance
by Tenant with his obligations hereunder, and no custom or practice of the
parties at variance with the terms hereof shall constitute a waiver of
Landlord's right to demand exact compliance with the terms hereof.
37. MODIFICATION. This writing is intended by the parties as the final
expression of their agreement and as a complete and exclusive statement of the
terms thereof, all negotiations, considerations and representations between the
parties having been incorporated herein. No course of prior dealings between the
parties or their affiliates shall be relevant or admissible to supplement,
explain or vary any of the terms of this Lease. Acceptance of, or acquiescence
in, a course of performance rendered under this or any prior agreement between
the parties or their affiliates shall not be relevance or admissible to
determine the meaning of any of the terms of this lease. No representations,
understandings or agreements have been made or relied upon in the making of this
Lease other than those specifically set forth herein. This Lease can only be
modified by a written agreement signed by all of the parties hereto or their
duly authorized agents.
38. WAIVER OF JURY TRIAL. Landlord and Tenant each hereby waives all
right to trial by jury in any claim, action, proceeding or counterclaim by
either party against the other on any matters arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant and/or
Tenant's use or occupancy of the Demised Premises.
39. HEADINGS. Captions and headings are for convenience and reference
only.
40. APPLICABLE LAW. This Lease shall be construed under the laws of the
State in which the Demised Premises is located.
41. NO OPTION. The submission of this Lease for examination does not
constitute a reservation of or option for the Demised Premises, and this Lease
becomes effective only upon execution and delivery thereof by Landlord.
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42. GENDER; ASSIGNS AND SUCCESSORS. Feminine or neuter pronouns may be
substituted for those of the masculine form, and the plural may be substituted
for the singular number, in any place or places herein in which the context may
require such substitution or substitutions. The Term "Landlord" as used in this
Lease, means only the owner for the time being of the Landlord's interest in
this Lease; and, in the event of the sale, assignment or transfer by such owner
of the Landlord's interest in this Lease, such owner shall thereupon be released
and discharged of all covenants and obligations of Landlord hereunder thereafter
accruing. Except as provided in the preceding sentence, all of the covenants,
agreements, terms, conditions, provisions and undertakings in this Lease shall
inure to the benefit of, and shall extend to and be binding upon, the parties
hereto and their respective heirs, executors, legal representatives, successors
and assigns, to the same extent as if they were in every case named and
expressed.
43. SEVERABILITY. If any term, covenant or condition of this Lease or
the application thereof to any person or circumstance shall to any extent be
held invalid or unenforceable, the remainder of this lease or the application or
such term, covenant or condition to persons or circumstances other than those as
to which it is held invalid or unenforceable, shall not be affected thereby and
each term, covenant and condition of this Lease shall be valid and enforced to
the fullest extent permitted by law.
44 SPECIAL STIPULATIONS. If any of the following stipulations
supplement or conflict with any of the foregoing provisions hereof, the
following provisions shall control:
45. COMMISSION. Pursuant to Georgia Real Estate regulation 520-1-.08,
Landlord and Tenant acknowledge and agree that Franklin Property Company has
acted as agent for the Landlord in this transaction and is to be paid a
commission by the Landlord pursuant to a separate agreement. Franklin Property
Company has not acted as agent for the Tenant in this transaction. CB Richard
Ellis, Inc. has acted as agent for the Tenant in this transaction and is to be
paid a commission by the Landlord pursuant to a separate agreement. CB Richard
Ellis, Inc. has not acted as agent for the Landlord in this transaction.
46. ASSIGNMENT; SUBLEASE. Notwithstanding anything contained
herein to the contrary Landlord will not unreasonably withhold its consent to
any assignment of this Lease or sublease of the Demised Premises, provided;
however, that Landlord shall have the following options:
(a) Upon receipt from Tenant of written request for Landlord's consent
to such an assignment or sublease, Landlord may cancel this Lease as of
the date the requested subletting or assignment is to be effective.
This option shall be exercised, if at all, within thirty (30) days
following receipt by Landlord of the request for consent including
financial information on the proposed Tenant and such other information
concerning the proposed Tenant as the Landlord may request, by delivery
to Tenant of written notice of Landlord's intention to exercise this
option. In the event that Landlord elects to cancel this Lease pursuant
to this paragraph, Landlord shall so notify Tenant in writing and
Tenant shall have ten (10) business days from and after date of said
notice to withdraw its request for such assignment or subletting.
(b) If the proposed assignment or sublease relates to the entire
Demised Premises, Landlord may lease the whole of the Demised Premises
directly to Tenant's prospective Tenant, in which event,
notwithstanding the last sentence of Paragraph 20 hereof, Tenant shall
be released from all liability with respect to the Demised Premises so
leased.
(c) Upon the Landlord granting its consent to any proposed assignment
or sublease, after Tenant pays all applicable out-of-pocket expenses
arising from such assignment or transfer, all rental amounts and any
additional payments arising hereunder and fifty percent (50%) of the
remaining rental amounts and additional payments arising under the
assignment or sublease in excess of all rentals contained in this
Lease, shall be payable to Landlord.
Notwithstanding any provisions in Paragraph 20 of the Lease, and
further not subject to the provisions of paragraphs (a), (b) and (c) immediately
above, Tenant may enter into an assignment of this Lease without Landlord's
consent, but with notice to Landlord, for the use and occupation of the Premises
solely for the purpose set forth in Article 12 to (i) Tenant's parent or
subsidiary corporation or to a corporation under common ownership with and
controlled by the same persons who control Tenant, or (ii) any party which
acquires substantially all of the assets of Tenant, or (iii) to a corporation
into which Tenant merges or consolidates, or (iv) in connection with an initial
public offering of stock in Tenant which results in Tenant being listed on a
national securities exchange; provided, however, that in each such event, (1)
such assignee shall have sufficient financial capabilities so as to meet all
obligations of this Lease, in the sole but reasonable business judgment of
Landlord; (2) such assignee shall possess qualifications for conducting the
business at the Premises to the satisfaction of Landlord; (3) such assignee
shall assume in writing all of Tenant's obligations hereunder; and (4) Tenant
continues to remain liable under this Lease for the performance of all of the
terms contained herein including but not limited to, the payment of Base Rent
and all Additional Rent due under this Lease. The liability of any Guarantor of
this Lease shall not be affected as a result of any assignment permitted under
this subparagraph (g). Notwithstanding any provisions of clause (i) of this
paragraph to the contrary, no assignment or other transfer of this Lease will be
permitted under this paragraph without Landlord's consent, if such assignment or
transfer would result in an assignment or transfer of this Lease or the
ownership interests in any assignee or transferee to an entity not affiliated
with Tenant through common ownership and control. It is the intention of the
parties that the provisions of this paragraph are included herein for the
purpose of providing Tenant with flexibility in the manner of operating its
business, but the provisions of clause (i) are not intended to permit, and do
not permit, an assignment or other transfer of this Lease to an entity outside
the ownership family to which Tenant belongs as a means of defeating the other
provisions of Article 20 or this Article 46 which require Landlord's consent to
a Transfer.
47. RIGHT TO RENEW. Tenant shall have the right to renew the term of
this Lease for one additional term of five (5) years following expiration of the
original term, provided that this Lease is in full force and effect, that Tenant
or its permitted successors and/or assigns is/are in possession and occupying
the Demised Premises, and that Tenant shall not have been or presently be in
default (beyond any applicable grace period granted in this Lease for curing
same) in the performance or observance of any of the terms, provisions,
covenants and /or conditions of the Lease during the original term. Such right
of renewal must be exercised by delivery to Landlord of
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an unequivocal written notice, served by registered or certified U. S. mail, of
Tenant's intention to renew at least twelve (12) months prior to the expiration
of the original term. The renewal term shall be on the same terms, covenants and
conditions as the original term except:
(a) The Initial Base Rent to be paid by the Tenant during the renewal
term (hereinafter referred to as "Renewal Base Rent") shall be the then
current market rate for comparable space within the 1100 Building.
Should Landlord and Tenant be unable to agree upon the market lease
rate for comparable space then both Landlord and Tenant shall each
select an Appraiser who is a member of the Appraisal Institute (M.A.I.)
to determine the market lease rate. Should these appraisers be unable
to agree, then they shall select a third M.A.I. appraiser, whose
decision shall be binding. The cost of appraisals shall be shared
equally by the Landlord and the Tenant. In no event shall the Initial
Base Rent for the renewal term be less than the Initial Base Rent in
the final lease year of the original term of the lease.
(b) At the expiration of each twelve (12) month period following the
beginning of renewal term, the Renewal Base Rent shall be increased by
two percent.
(c) The increases in Annual Operating Costs shall continue to be
calculated on the basis of the Budgeted Annual Operating Cost set forth
in paragraph 5 hereof, however, the "Base Year" shall be revised to be
the first "Fiscal Year" (as defined in Article 5 above) of the renewal
term.
48. ADA. Landlord agrees that the Building, including all common areas
such as hallways, elevators, restrooms, sidewalks and parking lots will comply
with the Americans with Disabilities Act of 1990 and the regulations promulgated
thereunder. Landlord further agrees that, if it is determined that the building
does not comply with the Americans with Disabilities Act, it will be solely
liable for such failure and that it will, among other things, take all
reasonable actions necessary to bring the building into compliance. Tenant
agrees that its design and furnishing of the leased premises will comply with
the Americans with Disabilities Act. Tenant agrees that if it is determined that
the leased premises does not comply, it will be solely liable for such failure
and that it will, among other things, take all reasonable actions necessary to
bring the leased premises into compliance.
49. ADDITIONAL SERVICES OR UTILITIES. Subject to the terms and
conditions of this Article 49, Landlord shall, at Tenant's request, furnish
additional quantities of any of the services or utilities specified in the
Lease. Tenant shall deliver to Landlord a written request for such additional
services or utilities prior to 2:00 p.m. on Monday through Friday (except
National Holidays) for service on such days, and prior to 2:00 p.m. on the last
full business day prior to a Saturday, Sunday or national Holiday. Tenant shall
pay to Landlord the sum of Thirty Five Dollars ($35.00) per hour per floor as a
charge for such additional services or utilities, which charge shall be deemed
Additional Rent hereunder. The aforesaid sum may be adjusted from time to time
by Landlord based upon increases in the actual costs of such services and
utilities. If Tenant shall fail to make any such payments as and when due in
accordance with the terms of this Lease, Landlord may, upon notice to Tenant and
in addition to any other rights or remedies available to Landlord under this
Lease, thereafter discontinue providing any or all of the additional services or
utilities.
50. COORDINATION OF THE WORK. Tenant may, upon reasonable prior notice
to Landlord, at Tenant's risk and upon satisfaction of the requirements of
Article 18, enter into the Premises to perform work therein prior to the date
that Landlord has completed Landlord's Work as described in Article 27 above.
Tenant shall use best efforts to coordinate its work with work being done by
Landlord and Landlord's contractors so as to avoid any interference with or
delays to Landlord's Work, and Landlord and Tenant agree to reasonably cooperate
with each other to stage and coordinate their respective construction work. If
Landlord determines in its reasonable discretion that Tenant has delayed or
interfered with Landlord's Work, then Landlord may require that Tenant cease any
construction activity which is causing, or which may cause, any delay or
interference.
51. LANDLORD'S WAIVER. Landlord will, upon receipt of written request
from Tenant, execute an agreement, on Landlord's form, subordinating any
Landlord liens it may have on Tenant's inventory, trade fixtures and other
personal property as a result of this Lease to a lien on such personal property
held by any bona fide, third party lender; provided, however, that,
notwithstanding anything herein contained or any decision of any court to the
contrary, the term "trade fixtures" shall not include any air-conditioning,
heating, lighting, electrical and plumbing equipment installed by Tenant in the
Premises, nor any wiring or other apparatus related thereto. Notwithstanding the
aforesaid, Landlord whereby waives any statutory or common law lien or right of
distraint against any and all of Tenant's work product, business records and
client files.
52. ENVIRONMENTAL.
(a) Landlord represents that, to the best of Landlord's
knowledge, the Demised Premises, the Building and the Property are in compliance
with all environmental laws in existence on the Lease Date, and that no
hazardous materials are located within the Demised Premises. No hazardous
materials shall be stored or used in the Demised Premises except as required for
the operation of Tenant's business, as permitted under this Lease, and any such
hazardous materials shall be stored and handled in strict compliance with
applicable laws. Landlord shall use diligent efforts to insure that any
hazardous materials used by other tenants of the Building shall be stored and
handled in strict compliance with applicable laws and shall use commercially
reasonable efforts to cause compliance by other tenants and other third parties
with environmental laws which affect the Building, the Property or the Demised
Premises. Tenant shall not be liable for any environmental contamination of the
Demised Premises or the Building or the Property unless such contamination was
caused by the act or omission of Tenant or its agents, contractors or employees.
(b) Landlord shall defend, indemnify, and hold Tenant and
Tenant's agents, officers, directors, employees, and contractors harmless
against and from any and all injuries, costs, expenses, liabilities, losses,
damages, injunctions, suits, actions, fines, penalties, and demands of any kind
or nature (including reasonable attorney fees) occasioned by or arising out of
or relating to any environmental pollution, damage, condition or problem arising
from the presence of any hazardous substances, asbestos or other toxic waste as
defined in any federal, state, or municipal governmental or quasi-governmental
laws, rules, regulations, or ordinances in or about the Demised Premises or the
Building or Property in violation of law that are (i) existing in the Demised
Premises or the Building
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or Property prior to Tenant's occupancy of the Demised Premises or (ii) caused
by the acts, omissions or negligence of Landlord, its agents, or employees and
not caused by Tenant's acts, omissions or use of the Demised Premises.
(c) Tenant shall defend, indemnify, and hold Landlord and
Landlord's agents, officers, directors, employees, and contractors harmless
against and from any and all injuries, costs, expenses, liabilities, losses,
damages, injunctions, suits, actions, fines, penalties, and demands of any kind
or nature (including reasonable attorneys fees) occasioned by or arising out of
or relating to any environmental pollution, damage, condition or problem arising
from the presence of any hazardous substances, asbestos or other toxic waste as
defined in any federal, state, or municipal governmental or quasi-governmental
laws, rules, regulations, or ordinances in or about the Demised Premises or the
Building or Property in violation of law that are existing in the Demised
Premises and caused by the acts, omissions or negligence of Tenant, its agents,
or employees and not caused by Landlord's actions.
53. TENANT REMEDIES.
(a) If Landlord shall fail to maintain and repair the Demised
Premises in accordance with the provisions of this Lease and such failure
continues for a period in excess of thirty (30) days after Landlord receives
Tenant's written notice of such default, then Tenant may, at its option, perform
any such maintenance or repairs and the reasonable costs incurred by Tenant in
performing such work shall be reimbursed to Tenant by Landlord within thirty
days after Landlord's receipt of (i) Tenant's invoice for such costs, and (ii)
copies of paid invoices for all such work, and (iii) lien waivers from all
contractors, subcontractors involved in the performance of such work; provided,
however, that if any such default of Landlord cannot with due diligence and
commercially reasonable efforts be cured by Landlord within the thirty (30) day
period after receipt of Tenant's notice, the period for cure by Landlord shall
be extended if, within such thirty (30) day period Landlord commences and
thereafter diligently pursues the cure of any such default. Tenant shall defend,
indemnify and save Landlord harmless from and against any and all claims,
actions, damages, liability and expense in connection with loss of life,
personal injury and/or damage to or interference with property or the premises
of other tenants arising from or out of any exercise of any rights granted to
Tenant under this Article 53.
(b) If Landlord fails to reimburse Tenant for any amounts due
to Tenant in accordance with this Article Tenant may, in any Lease Year in which
any such amount is claimed to be owed, offset against Base Rent an amount (the
"Offset Maximum") equal to the lesser of (i) the amount claimed or (ii) one (1)
month's Base Rent at the then current rate. If (a) Tenant obtains a final money
judgement against Landlord (i.e. all appeals have been exhausted) as a result of
Landlord committing a default under the Lease and failing to cure such default
after proper written notice as provided for in this Lease; and (b) Landlord
fails to pay any such judgement within ten (10) days after the entry of such
final judgement, and (c) the holder of any mortgage encumbering the Building
fails to diligently pursue to cure such default after proper written notice from
Tenant, then and only then, shall Tenant have the right to offset against Base
Rent an amount in excess of the Offset Maximum.
IN WITNESS WHEREOF, the parties hereto have executed this Lease under
seal on the day and year first above written.
ATTEST: LANDLORD: 1100 CORPORATION
____________________________ By: /s/ Philip D. Caraci
----------------------------------
Philip D. Caraci, President
ATTEST: TENANT: THE BISYS GROUP, INC.
____________________________ By: /s/ Dennis R. Sheehan
----------------------------------
Name: Dennis R. Sheehan
--------------------------------
Title: Executive Vice President
-------------------------------
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