ONE PARKWAY CENTER
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), dated and effective as of
_______________ (the "Effective Date"), made by and between ATLANTA PARKWAY
INVESTMENT GROUP, INC., a Delaware corporation (the "Landlord") and MATRIA
HEALTHCARE, INC., a Delaware corporation (the "Tenant"), successor-by-merger to
Healthdyne, Inc., a Georgia corporation.
W I T N E S S E T H
I.
DEFINITIONS
Landlord and Tenant covenant and agree that for purposes of this Lease,
the following terms as indicated by the initial capitalization thereof, shall
have the meanings specified below for each:
1.1 Base Rental.
-----------
(a) The Base Rental, for the Premises (as hereinafter defined), as escalated
pursuant to the Prior Lease through the Effective Date, to be paid by Tenant to
Landlord from the Effective Date through and including February 28, 2003, shall
be payable as follows:
Square Resulting Annual Resulting Annual
Premises Footage $ / RSF Base Rental Base Rental
-------- ------- ------- ----------- -----------
Suite 210 3,322 $23.43 $77,834.46 $6,486.21
Suite 215 3,464 $24.14 $83,620.96 $6,968.41
Suite 635 4,804 $22.50 $108,090.00 $9,007.50
Remainder 99,341 $20.77 $2,063,312.57 $171,942.71
TOTALS: 110,931 $2,332,857.99 $194,404.83
Base Rental shall be payable in advance on the first day of every calendar
month. Base Rental for the remainder of the Term shall be as set forth in
Paragraph 3 of the Special Stipulations attached hereto and made a part hereof.
1.2 Commitment Deposit. [Intentionally Deleted.]
------------------
1.3 Premises. Terms used in defining Premises are:
--------
(a) The term "Building" shall mean 1850 Parkway Place located in the City
of Marietta, Cobb County, Georgia.
(b) The term "Premises" shall mean the following portions of the Building
on the floors indicated and being known as the Suites described below,
as is more particularly outlined on the floor plans attached hereto as
Exhibit "A".
1.4 Premises. The term "Premises" shall mean:
--------
Square Feet of
Floor/Suite Rentable Area
----------- --------------
12 (all) 20,211
11 (all) 20,265
10 (all) 20,265
Floor/Suite Square Feet of
----------- Rentable Area
--------------
9/Suite 900 9,806
7/Suite 735 1,876
7/Suite 700 5,827
6/Suite 620 13,144
6/Suite 600 2,263
3/Suite 320 4,706
3/Suite 321 978
6/Suite 635 4,804
2/Suite 215 3,464
2/Suite 210 3,322
=========== =======
Total 110,931
1.5 Rentable Area of the Premises. The term "Rentable Area of the Premises"
-----------------------------
shall mean 110,931 square feet.
1.6 Security Deposit. Prior to the execution of this Lease, Tenant has paid
----------------
to Landlord the sum of Thirty-Two Thousand and no/100 Dollars
($32,000.00), as a Security Deposit.
1.7 Tenant's Percentage Share of Increases in Operating Expenses. Terms
--------------------------------------------------------------
used in defining Tenant's Percentage Share of Increases in Operating
Expenses are:
(a) The Rentable Area of the Building is 226,099 square feet.
(b) The term "Tenant's Percentage Share" means forty-nine and six hundred and
thirty ten thousandths percent (49.0630%). Landlord and Tenant acknowledge that
Tenant's Percentage Share has been obtained by dividing the Rentable Area of the
Premises by the Rentable Area of the Building, and multiplying such quotient by
100.
(c) The term "Base Year" for the Premises shall be as follows:
Premises Base Year
-------- ---------
Suites 210 and 215 2000
Remainder 1997
(d) The term "Operating Expenses" as used in this Lease shall mean the following
costs, expenses, and taxes:
(i) Costs and expenses paid or incurred by Landlord for the maintenance and
repair of the Building and the personal property used in connection therewith,
including but not limited to (A) the heating, ventilating, and air conditioning
equipment, (B) plumbing and electrical systems and equipments, (C) light bulbs
and broken glass, including replacement thereof, and (D) elevators and
escalators;
(ii) Cleaning and janitorial costs and expenses, including window cleaning
expenses, for the Building;
(iii) Landscaping and grounds maintenance costs and expenses;
(iv) Utility costs and expenses including, but not limited to, electricity,
gas, steam, other fuels and forms of power or energy, water charges,
sewer and waste disposal;
(v) Costs and expenses of redecorating, painting, and carpeting the common
areas of the Building; provided, however, that, except as specified
in items (vi) and (x) hereof, the cost of structural changes to the
Building which should be capitalized in accordance with generally
accepted accounting principles shall not be allocated or charged to the
Premises;
(vi) Costs of all repairs, alterations, additions, changes, replacements,
and other items required by any law or governmental regulation,
regardless of whether such costs, when incurred, are classified as
capital expenditures, imposed after the date of this Lease;
(vii) Cost of wages and salaries of all persons engaged in the operation,
maintenance and repair of the Building, and so-called fringe benefits,
including social security taxes, unemployment insurance taxes, costs
for providing coverage for disability benefits, cost of any pensions,
hospitalization, welfare or retirement plans, or any other similar or
like expense incurred under the provisions of any collective
bargaining agreement, costs of uniforms, and all other costs or
expenses that the Landlord pays to or on behalf of the employees
engaged in the operation, maintenance and repair of the Building;
(viii) Charges of any independent contractor who, under contract with
the Landlord or its manager or representative, does any of the work of
operating, maintaining, or repairing the Building or of providing any
of the services and materials described in this Paragraph 1.6(d);
(ix) [Intentionally Deleted]
(x) Amortization, with interest, of capital expenditures for capital
improvements made by Landlord after completion of the Building where
such capital improvements are for the purpose of, or result in,
reducing Operating Expenses;
(xi) Landlord's insurance costs and expenses for all types of insurance
carried by Landlord with respect to the Building;
(xii) Security service costs and expenses;
(xiii) Reasonable management fees and expenses not to exceed the costs in the
Atlanta area for similar buildings;
(xiv) Such other expenses paid by Landlord, from time to time, in connection
with the operation and maintenance of the Building as are typically
incurred by an operator and manager of a building comparable to
the Building, except that all costs of special services rendered to
particular tenants of the Building, which are paid by such tenants,
shall not be included in Operating Expenses; and
(xv) The following taxes: (A) personal property taxes (attributable to the
year in which paid) imposed upon the furniture, fixtures, machinery,
equipment, apparatus, systems, and appurtenances used in connection
with the Building for the operation thereof, and (B) real estate taxes,
assessments, sewer rents, rates, and charges, transit taxes, taxes
based upon the receipt of rent and any other federal, state, or local
not including income or franchise taxes or any other taxes imposed upon
or measured by Landlord's income or profits, unless the same shall be
imposed in lieu of real estate taxes) which may now or hereafter be
levied or assessed against the Building and the land underlying the
Building or the rents derived from the Building (in the case of special
taxes or assessments which may be payable in installments, only
the amount of each installment paid during a calendar year shall be
included in the taxes for that year).
(e) The term "Base Operating Expenses" shall mean the Operating Expenses paid
or incurred by Landlord in the Base Year. If the Building was not
ninety-five percent (95%) occupied throughout the Base Year, then the Base
Operating Expenses shall be an amount which fairly reflects what the
Operating Expenses would have been had the Building been ninety-five
percent (95%) occupied throughout the Base Year.
(f) Expenses shall not include any penalties, fines, late charges, interest or
any transfer, inheritance, profit or capital tax or levy, or any license
fee of Landlord; nor shall such Expenses include repairs, restoration or
other work occasioned by fire, windstorm or other casualty for which
Landlord is reimbursed by insurance, expenses incurred in leasing or
procuring tenants, leasing commissions, advertising expenses, expense for
renovating space for new or existing tenants, legal expenses incident to
enforcement by Landlord of the terms of any lease, interest or principal
payments on any mortgage or other indebtedness of Landlord, general
percentage overhead of Landlord, and wages or other compensation for
employees above the grade of general business manager for the Building.
(g) The annual statement for Operating Expenses shall contain a computation of
Tenant's annual pro rata share of said Expenses and a certification as to
the total floor area/gross leasable area of the Building.
(h) Tenant shall be entitled to request such additional information as may be
reasonably required in order to enable Tenant to confirm the adequacy and
accuracy of the Operating Expenses and the calculation of Tenant's pro rata
share thereof.
(i) Concerning the adjustment of Operating Expenses based upon a ninety-five
percent (95%) occupancy level as set forth in subsection (b) of Paragraph
4.3, in no event shall the aggregate payments under this or similar
provisions by all tenants in the building exceed the Operating Expenses
actually incurred by the Landlord.
1.8 Lease Term. The Lease Term commenced on the date as provided in the Prior
Lease (which shall be referred to herein as the "Commencement Date") and
shall end at midnight on February 28, 2010 (which shall be referred to
herein as the "Expiration Date"). Any partial months occurring at the
beginning and/or the end of the Lease Term shall be added to, and shall be
a part of, such Lease Term.
1.9 Notice Addresses.
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As to Landlord: With a Copy to:
Atlanta Parkway Investment Group, Inc. Jones Lang LaSalle Americas, Inc.
c/o CB/Richard Ellis Investors, L.L.C. Two Parkway Center
601 108th Avenue N.E. 1800 Parkway Place, Suite 235
Suite 1900 Marietta, Georgia 30067
Bellevue, Washington 98004
Attn: Paul C. Chapman
As to Tenant:
Matria Healthcare, Inc.
Attn: General Counsel
One Parkway Center
1850 Parkway Place, Suite 1200
Marietta, Georgia 30067
1.10 Prior Lease. The Prior Lease as defined in the Special Stipulations
------------- attached hereto and by this reference made a part hereof.
1.11 New Space. As defined in the Special Stipulations attached hereto and
--- ------ by this reference made a part hereof.
1.12 Contraction Date. As defined in the Special Stipulations attached hereto
----------------- and by this reference made a part hereof.
II.
TERM
2.1 Premises. Landlord, in consideration of the covenants and agreements to be
performed by Tenant, and upon and subject to the terms and conditions of this
Lease, does hereby rent and lease unto Tenant, and Tenant does hereby rent and
lease the Premises from Landlord for the Lease Term. This Lease shall create the
relationship of landlord and tenant between Landlord and Tenant; no estate shall
pass out of Landlord, and Tenant has only a usufruct which is not subject to
levy and sale.
2.2 Term. Tenant takes and accepts the Premises from Landlord in its present
condition and as suited for the use intended by Tenant, except for such
improvements as may be expressly provided for in the Tenant Improvement
Agreement referenced in Paragraph 4 of the Special Stipulations attached hereto
and incorporated herein by this reference.
2.3 Removal of Tenant's Personal Property. Before the termination of this Lease,
Tenant shall remove from the Premises all its personal property which this Lease
allows Tenant to remove and peaceably surrender all portions of the Premises and
the keys thereto to Landlord in the same condition as each portion of the
Premises existed at the time such portion was first occupied by Tenant under the
Prior Lease or this Lease, only natural wear and tear, fire and casualty and
acts of God excepted. Tenant shall have no right to remove any fixtures,
improvements, or attached equipment from the Premises at the termination of this
Lease, and said items shall be deemed the property of Landlord unless such items
were installed by or at the request of Tenant and the Premises are restored to
their original condition. Such property of Tenant as it fails to remove either
from the Premises or the Building after the termination of this Lease shall be
considered as abandoned by Tenant and may be disposed of by Landlord in any
manner whatsoever without accounting to Tenant for same or being liable in any
way to Tenant for such disposition.
2.4 Holding Over. In no event shall there be any renewal of this Lease by
operation of law, and if Tenant remains in possession of the Premises after the
termination of this Lease and without a new lease executed by Landlord and
Tenant, Tenant shall be deemed to be occupying the premises as a Tenant at
sufferance at an amount equal to two hundred percent (200%) of the Base Rental
and additional rent provided for in this Lease and otherwise subject to all the
covenants and provisions of this Lease insofar as the same are applicable to a
month-to-month tenancy; provided, however, that during the first sixty (60) days
of any such holdover, the aforesaid "two hundred percent (200%)" shall not be
applicable and, in lieu thereof, the rate shall be "one hundred fifty percent
(150%)" for such sixty (60) day period only.
2.5 Tenant Acceptance Agreement. [Intentionally Deleted]
---------------------------
III.
ASSIGNMENT AND SUBLETTING
3.1 Assignment and Subletting Procedures.
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(a) Tenant shall not, without the Landlord's prior written consent, (i) assign,
convey, mortgage, pledge, encumber, or otherwise transfer (whether voluntarily,
by operation of law, or otherwise) this Lease or any interest under it; (ii)
allow any transfer thereof or any lien upon Tenant's interest by operation of
law; (iii) sublet the Premises or any part thereof; and (iv) permit the use or
occupancy of the Premises or any part thereof by anyone other than Tenant, and
any attempt to consummate any of the foregoing without Landlord's consent shall
be void.
(b) Notwithstanding anything herein to the contrary, if at any time or from time
to time during the Lease Term, Tenant desires to sublet the Premises or assign
the Lease with respect to all or part of the Premises, Tenant shall notify
Landlord in writing (hereinafter referred to in this Paragraph 3.1(b) as the
"Notice") of the terms of the proposed subletting or assignment, the identity of
the proposed assignee or sublessee, the area proposed to be sublet or covered by
the assignment, and such other information as Landlord may request to evaluate
Tenant's request to assign or sublet. Landlord shall then have the option either
(i) to sublet from Tenant such space (hereinafter referred to as "Sublet Space")
as provided in Paragraph 3.1(c) below; or (ii) to review such proposed
assignment or sublease for approval as set forth in Paragraph 3.1(d) below. The
option to sublet or to review, as the case may be, shall be exercisable by
Landlord in writing within a period of thirty (30) calendar days after receipt
of the Notice.
(c) In the event Landlord exercises the option to sublet the Sublet Space
provided under Paragraph 3.1(b)(i) above, then (i) Landlord shall sublet the
Sublet Space at the same Base Rental and additional rent as Tenant would have
received pursuant to the assignment or subletting set forth in said notice; and
(ii) the term of the subletting from the Tenant to Landlord shall be the term
set forth in the Notice (which shall not be longer than the then current Lease
Term unless Landlord expressly agrees in writing that any extension or renewal
option contained in this Lease will apply to such Sublet Space) and shall be on
such terms and conditions as are contained in this Lease to the extent
applicable, except that the Landlord shall have the right to further sublet the
Sublet Space.
(d) If Landlord fails to exercise either its option to sublet or its option to
terminate the Lease as set forth above within the said thirty (30) day period or
elects to review the proposed assignment or sublease for approval, Tenant shall
submit to Landlord within twenty (20) calendar days after said period a copy of
the proposed assignment or sublease and such additional information concerning
the proposed assignee or sublessee, as may be requested by Landlord for
Landlord's review. Landlord's approval of a proposed assignment or sublease
pursuant to this subparagraph 3.1(d) shall not be unreasonably withheld or
delayed so long as all other requirements of this Paragraph 3.1, including this
subparagraph 3.1(d), are satisfied. Landlord shall have the right to withhold
approval of any assignment or subletting (and Landlord shall be deemed to have
acted reasonably in doing so) in the event Landlord determines in its sole and
absolute discretion that such assignee or subtenant shall be detrimental to the
integrity of the tenant base in the Building; that the business of such assignee
or subtenant shall not be compatible with the businesses of other tenants in the
Building; that the business of such assignee or subtenant would materially
interfere with the operation of the Building or other tenants located therein;
that such assignment or subletting would adversely affect the marketability of
the remaining unoccupied portions of the Building; that such assignment or
subletting would cause a violation by Landlord of its obligations under any
other lease covering any portion of the Building; or that the use of the
Premises by the proposed assignee or subtenant is not of a kind or quality which
is typically located in first class buildings in metropolitan Atlanta, Georgia.
Landlord shall have the right to withhold approval of any assignment or
subletting (and Landlord shall be deemed to have acted reasonably in doing so)
in the event the proposed assignee or sublessee is then either (i) a tenant or
occupant of the Building or Two Parkway Center located adjacent thereto, or (ii)
a party with whom Landlord is then in negotiations for space in the Building or
in Two Parkway Center. Further, Landlord shall have the right to withhold its
approval of any assignment or subletting in the event Landlord determines that
the net worth of such assignee or subtenant is an amount less than the greater
of Tenant's net worth as of the date hereof or as of the date of such assignment
or sublease. In no event whatsoever shall Tenant assign or sublet, or list,
advertise or otherwise publicize in any way the availability of, all or any part
of the Premises (for an assignment or sublet) at a rental rate which is less
than the rate for which Landlord is then offering any other space in the
Building. If Landlord consents to the terms of the proposed assignment or
sublease and the proposed assignee or sublessee, but a fully executed
counterpart of such assignment or sublease is not delivered to Landlord within
sixty (60) calendar days after the date of Landlord's written approval, then
Landlord's approval of the proposed assignment or sublease shall be deemed null
and void and Tenant shall subsequently comply with all the conditions of this
Paragraph 3.1 as if the Notice and options hereinabove referred to had not been
given and received.
(e) Notwithstanding the giving by Landlord of its consent to any assignment or
sublease with respect to the Premises, no assignee or sublessee may exercise any
expansion option, right of first refusal option, or renewal option under this
Lease except in accordance with a separate written agreement entered into
directly between such assignee or sublessee and Landlord.
(f) Tenant agrees to pay to Landlord on demand one-half (1/2) of reasonable
outside attorney's fees incurred by Landlord, plus, to Landlord, a $500.00
review fee, in connection with any request by Tenant for Landlord to consent to
any assignment or subletting by Tenant.
(g) As a condition to any assignment or subletting of all or any portion of the
Premises, that there not be an event of default under the Lease in existence at
the time of Tenant's election to so assign or sublet or as the effective date of
such assignment or subletting.
(h) If, with the consent of the Landlord, this Lease is assigned or the Premises
or any part thereof is sublet or occupied by anybody other than Tenant, Landlord
may, after default by Tenant, collect rent from the assignee, subtenant or
occupant, and apply the net amount collected to the Base Rental and additional
rent herein reserved, but no such assignment, subletting, occupancy, or
collection shall be deemed (i) a waiver of any of Tenant's covenants contained
in this Lease, (ii) the acceptance by Landlord of the assignee, subtenant, or
occupant as Tenant, or (iii) a release of Tenant from further performance by
Tenant of its covenants under this Lease.
IV.
RENT, RENT ADJUSTMENT, AND DEPOSITS
4.1 Base Rental. Tenant shall pay the Base Rental to Landlord as annual rent
during the Lease Term without prior demand or setoff. The Base Rental shall be
paid in equal monthly installments in advance on the first day of every calendar
month during the Lease Term. A prorated monthly installment, based on a thirty
(30) day month, shall be paid in advance (i) on the Commencement Date for any
fraction of a month if the Lease Term begins on any day other than the first day
of any month and (ii) on the first day of the final month of the Lease Term for
any fraction of a month if the Lease Term shall terminate on any day other than
the last day of any month.
4.2 Base Rental Adjustment During the Lease Term. As of the Effective Date of
this Lease and continuing until the Contraction Date (as defined in the Special
Stipulations attached hereto), the Base Rental for Suites 210 and 215 shall be
increased at the end of each calendar year, including at the end of the calendar
year 2002, by an amount equal to the product computed by multiplying the then in
force Base Rental for Suite 210 and 215 for the immediately preceding calendar
year times 1.03. The amounts by which the Base Rental is increased pursuant to
this Paragraph 4.2(a) shall be deemed to thereafter be a part of "Base Rental"
for all purposes whatsoever under this Lease. After the Contraction Date, Base
Rental for the New Space (as defined in the Special Stipulations) shall be
increased as provided in Paragraph 3 of the Special Stipulations.
4.3 Reimbursement for Increases in Operating Expenses.
-------------------------------------------------
(a) For each calendar year during the Lease Term, including the calendar year
2002 (each such calendar year being hereinafter in this Paragraph 4.3 referred
to as an "Adjustment Year"), Tenant shall pay to Landlord, as additional rent,
an amount equal to Tenant's Percentage Share of the total dollar increase, if
any, in Operating Expenses paid or incurred by Landlord in such Adjustment Year
over the Base Operating Expenses.
(b) During December of the year prior to the Adjustment Year, or as soon
thereafter as practicable, Landlord shall give Tenant written notice of its
estimate of any amount payable by Tenant under this Paragraph 4.3 for the
Adjustment Year. On or before the first day of each month during the Adjustment
Year, Tenant shall pay to Landlord 1/12th of such estimated amount, provided
that if such notice is not given in December Tenant shall continue to pay the
monthly installment amount, if any, which was paid or payable in December until
the month after such notice is given, in which event the estimated amount shall
be paid in equal monthly installments over the remainder of the Adjustment Year.
If at any time or times it appears to Landlord that the amount payable by Tenant
under this Paragraph 4.3 for the Adjustment Year will vary from Landlord's
estimate by more than five percent (5%), Landlord may, by notice to Tenant,
revise its estimate for such year and subsequent payments by Tenant for such
year shall be based on such revised estimate; provided, however, the Landlord
shall have no obligation to revise its estimate during an Adjustment Year.
Within ninety (90) days after the close of each Adjustment Year or as soon after
such ninety (90) day period as practicable, Landlord shall deliver to Tenant a
statement of Tenant's actual share of the increase, if any, in Operating
Expenses for such Adjustment Year prepared and certified by Landlord or its
agents. Within thirty (30) days after Tenant's receipt of such statement, Tenant
shall be entitled to request such additional information as may be reasonably
required in order to permit Tenant to confirm the adequacy and accuracy of such
calculation. If Tenant owes an amount that is less than the estimated payments
for such Adjustment Year previously made by Tenant, Landlord shall apply such
excess to the amounts of Base Rental next coming due, without interest. If
Tenant owes an amount that is more than the estimated payments for such
Adjustment Year previously made by Tenant, Tenant shall pay the deficiency to
Landlord within forty-five (45) days after delivery of the statements subject to
Tenant's right to verify the statement. In order to achieve a fair and equitable
allocation of Operating Expenses under this Paragraph 4.3, in the event less
than ninety-five percent (95%) of the Rentable Area of the Building shall have
been occupied by tenants continuously throughout an Adjustment Year of the Lease
Term, then Operating Expenses for such Adjustment Year shall be adjusted and be
deemed to be the amount of Operating Expenses which would have been incurred if
ninety-five percent (95%) of the Building were so occupied during said
Adjustment Year.
(c) In the event that this Lease terminates before the end of a calendar year,
then Landlord shall deliver to Tenant, within ninety (90) days after the close
of the Adjustment Year or as soon thereafter as practicable, a statement of
Tenant's Percentage Share of the increase, if any, in the actual Operating
Expenses (as prorated for said Adjustment Year based on the termination date of
the Lease) certified by an independent certified public accountant designated by
Landlord (which can be the certified public accountant employed by Landlord for
this project). If Tenant owes an amount that is less than the estimated payments
for such partial Adjustment Year previously made by Tenant after the Expiration
Date, Landlord shall refund such excess to Tenant, without interest. If Tenant
owes an amount that is more than the estimated payments for such partial
Adjustment Year previously made by Tenant after the Expiration Date, Tenant
shall pay the deficiency to Landlord within forty-five (45) days after delivery
of such statement and verification by Tenant as aforesaid. The termination of
this Lease shall not affect the obligations of Landlord and Tenant pursuant to
this Paragraph 4.3 to be performed after such termination and the failure to pay
any additional rents as provided under this Paragraph 4.3 shall entitle Landlord
to all remedies provided herein and at law or in equity on account of Tenant's
failure to pay rent.
4.4 Commitment Deposit. [Intentionally Deleted.]
------------------
4.5 Security Deposit. Landlord acknowledges that it has received from Tenant the
Security Deposit, which amount shall be security for the full and faithful
performance and observance by Tenant of its covenants and obligations under the
Lease, as amended hereby. No interest shall be payable on the Security Deposit,
and it is agreed and acknowledged by Tenant that the Security Deposit is not an
advance payment of rent or a measure of Landlord's damages in the case of
default by Tenant. Upon the occurrence of an event of default under this Lease,
as amended hereby, Landlord may use, apply, or retain the whole or any part of
the Security Deposit to the extent required for the payment of any Base Rental
and additional rent or any other sums to which Tenant is in default or for the
payment of any other damage, injury, expense, or liability resulting from any
event of default. Following any such application of the Security Deposit, Tenant
shall pay to Landlord on demand the amount necessary to restore the Security
Deposit to its original amount. In the event that Tenant shall fully and
faithfully comply with all of its covenants and obligations under this Lease, as
amended hereby, the Security Deposit shall be returned to Tenant within thirty
(30) days after the Expiration Date (or any permitted extensions thereof) and
after delivery of possession of the Premises to Landlord in accordance with the
terms hereof. In the event of a sale of the Building or a lease of the Building,
subject to this Lease and provided that Landlord shall have obtained the
agreement of the new landlord to be responsible for the return of the Security
Deposit, Landlord shall be released from all liability for the return of the
Security Deposit and Tenant shall look to the new landlord for the return of the
Security Deposit. This provision shall apply to every transfer or assignment
made of the Security Deposit to a new landlord.
4.6 Payments. Tenant shall pay to Landlord all Base Rental, additional rent, and
all other charges due and owing by Tenant under this Lease without deduction or
setoff, in legal tender, and at Landlord's address or as otherwise directed from
time to time by Landlord's notice.
V.
PREPARATION, MAINTENANCE, AND REPAIR OF PREMISES
------------------------------------------------
5.1 Preparation of the Premises.
---------------------------
(a) Tenant acknowledges that it is in possession of, and has accepted, the
Premises demised under the Lease and acknowledges that all work to be
performed by Landlord in the Premises as required by the terms of the Prior
Lease has been satisfactorily completed. Tenant further certifies to
Landlord that all conditions of the Prior Lease required of Landlord as of
this date have been fulfilled and there are no defenses or setoffs against
the enforcement of the Lease by Landlord.
(b) Tenant shall continue to be responsible for and shall pay from time to
time, as additional rent, any increase in ad valorem taxes against the
Building caused by any improvements to the Premises in excess of the "Base
Building Condition" and "Landlord's Allowance for Tenant Improvement
Costs," as such terms were used in the Prior Lease, and Tenant shall also
be responsible for and shall pay from time to time, as additional rent, any
increase in ad valorem taxes against the Building caused by any
improvements to the Premises in excess of the "Base Building Condition" and
"Landlord's Allowance for Tenant Improvement Costs," as such terms are set
forth in the Tenant Improvement Agreement attached hereto as Exhibit "B".
5.2 Repairs by Tenant. Tenant shall at its own expense keep the Premises in
good repair and condition and tenantable condition and indemnify Landlord
against any loss, damage, or expense arising by reason of any failure of
Tenant to keep the Premises in good repair and tenantable condition or due
to any act or neglect of Tenant, its agents, employees, contractors,
invitees, licensees, tenants, or assignees. The maintenance and repair
obligations of Tenant hereunder shall include, not by way of limitation,
but by way of illustration, all partitions, ceilings, floor and wall
coverings. If Tenant fails to perform, or cause to be performed, such
maintenance and repairs, then at the option of Landlord, in its sole
discretion, any such maintenance or repair may be performed or caused to be
performed by Landlord and the cost and expense thereof charged to Tenant,
and Tenant shall pay the amount thereof to Landlord on demand as additional
rent. Notwithstanding anything in Section 5.2 to the contrary, Tenant shall
have no responsibility to repair structural items, glass windows,
electrical or plumbing facilities unless such repairs are necessary due to
acts of Tenant, Tenant's agents, contractors, employees or invitees.
5.3 Repairs and Maintenance. Landlord shall maintain the Building in a state of
repair typical for comparable office buildings in the greater metropolitan
Atlanta area.
5.4 [Intentionally Deleted]
5.5 Alterations by Tenant. Tenant shall make no alterations or additions of any
kind in or to the Premises without first obtaining Landlord's written
consent. All such work, including additions, fixtures, and leasehold
improvements (but excluding moveable office furniture and equipment and
other personal property of Tenant) made or placed in or upon the Premises
by either Tenant or Landlord shall be and become the Landlord's property at
the termination of this Lease by lapse of time or otherwise, all without
compensation or payment to Tenant, and shall remain upon and in the
Premises; but said property shall be and remain the Tenant's property
during the Lease Term.
5.6 Discharge of Liens. Tenant shall discharge of record by bond or otherwise
within ten (10) days following the filing thereof any mechanic's or similar
lien filed against the Premises or the Building for work or materials
claimed to have been furnished to or for the benefit of Tenant and/or the
Premises; provided, however, that Tenant shall have no responsibility with
respect to any mechanic's or similar lien filed against the Premises or the
Building for work or materials furnished by or at Landlord's request.
5.7 Damage and Destruction.
----------------------
(a) If the Building or Premises are rendered partially or wholly unfit for
occupancy by fire, the elements, act of God or other casualty, and if such
damage cannot, in Landlord's reasonable estimation, be materially restored
within ninety (90) days of such damage, then Landlord may, at its sole
option, terminate this Lease as of the date of such fire or casualty and
the Lease Term shall end on such date as if that date had been originally
fixed in this Lease for the expiration of the Lease Term. Landlord shall
exercise its option provided herein by written notice to Tenant within
sixty (60) days of such fire or other casualty. For purposes hereof, the
Building or Premises shall be deemed "materially restored" if they are in
such condition as would not prevent or materially interfere with Tenant's
use of the Premises for the purpose for which it was then being used.
(b) If this Lease is not terminated pursuant to Subparagraph (a) above, then
Landlord shall proceed with all due diligence to repair and restore the
Building or Premises, as the case may be (except that Landlord may elect
not to rebuild, and thus terminate this Lease, if such damage occurs during
the last two (2) years of the Lease Term exclusive of any option which is
unexercised at the date of such damage). In the event that Landlord shall
fail to complete such repairs and material restoration within one hundred
fifty (150) days after the casualty, Tenant may, at its option and as its
sole remedy, terminate this Lease by delivering written notice to Landlord,
whereupon this Lease shall end on the date such notice is received as if
the date of such notice were the date originally fixed in this Lease for
the expiration of the term hereof; provided, however, that if construction
is delayed because of changes, deletions, or additions in construction
requested by Tenant, or because of strikes, lockouts, casualties, acts of
God or intervention of other supernatural forces, war, material or labor
shortages, governmental regulation or control, or other causes beyond the
reasonable control of Landlord, the period for restoration, repair or
rebuilding shall be extended for the amount of time Landlord is so delayed.
In no event shall Landlord be required to rebuild, repair, or replace any
part of the partitions, fixtures, additions, or other property and
improvements which may have been placed in or about the Premises by Tenant.
(c) If this Lease shall not be terminated by Landlord pursuant to this
Paragraph 5.7 and if the Premises are unfit for occupancy in whole or in
part following such damage, the rent and all additional rent and other
charges payable during the period in which the Premises are unfit for
occupancy shall abate in proportion to the number of square feet of
Rentable Area of the Premises rendered unusable by such damage; provided,
however, that no such abatement shall be made under the provisions of this
Subparagraph (c) in the event such damage shall have been caused through
the negligence or willful misconduct of Tenant, its agents, employees,
contractors, invitees, licensees, tenants, or assignees.
(d) In the event of any damage or destruction to the Building or the Premises,
Tenant shall, upon notice from Landlord, remove forthwith, at its sole cost
and expense, such portion or all of the property belonging to Tenant (other
than partitions, fixtures, additions, and similar improvements) from such
portion or all of the Building or the Premises as Landlord shall request.
(e) Any insurance which may be carried by Landlord or Tenant against loss or
damage to the Building or Premises shall be for the sole benefit of the
party carrying such insurance and under its sole control except that
Landlord's insurance may be subject to control by the holder or holders of
any indebtedness secured by a mortgage or deed to secure debt covering any
interest of Landlord in the Premises or the Building.
(f) Notwithstanding anything herein to the contrary, in the event the holder of
any indebtedness secured by a mortgage or deed to secure debt covering the
Premises or Building requires that any insurance proceeds be paid to it,
then Landlord shall have the right to terminate this Lease by delivering
written notice of termination to Tenant within fifteen (15) days after such
requirement is made by any such person, whereupon the Lease shall end on
the date of such damage as if the date of such damage were the date
originally fixed in this Lease for the expiration of the Lease Term.
(g) If any such casualty stated in this Paragraph 5.7 occurs, Landlord shall
not be liable to Tenant for inconvenience, annoyance, loss of profits,
expenses, or any other type of injury or damage resulting from the repair
of any such damage, or from any repair, modification, arranging, or
rearranging of any portion of the Premises or any part or all of the
Building, or for termination of this Lease as provided in this Paragraph
5.7.
5.8 Eminent Domain.
---------------
(a) If all or any part of the Building or Premises should be taken for any
public or quasi-public use under governmental law, ordinance, or regulation, or
by right of eminent domain, or by private purchase in lieu thereof, and the
taking would materially prevent or interfere with the use of the Premises for
the purpose for which it is then being used, this Lease shall terminate
effective when the physical taking shall occur.
(b) All compensation awarded or paid upon a total or partial taking of the
Premises or the Building shall belong to and be the property of Landlord without
participation by Tenant. Nothing herein shall be construed to preclude Tenant
from prosecuting any claim directly against the condemning authority solely for
loss of business, damage to, and cost of removal of trade fixtures, furniture
and other personal property belonging to Tenant; provided, however, that no such
claim shall diminish or adversely affect Landlord's award.
(c) Notwithstanding anything to the contrary contained in this Paragraph 5.8, if
during the Lease Term the use or occupancy of any part of the Building or
Premises shall be taken or appropriated temporarily for any public or
quasi-public use under any governmental law, ordinance, or regulation, or by
right of eminent domain, this Lease shall be and remain unaffected by such
taking or appropriation, and Tenant shall continue to pay in full all rent
payable hereunder by Tenant during the term of this Lease; in the event of any
such temporary appropriation or taking, Tenant shall be entitled to receive that
portion of any award which represents compensation for the loss of use or
occupancy of the Premises during the term of this Lease, and Landlord shall be
entitled to receive that portion of any award which represents the cost of
restoration and compensation for the loss of use or occupancy of the Premises
after the end of the term of this Lease and of the Building.
5.9 Reports of Defects. Tenant shall report to Landlord immediately, in writing,
any damage to or defective condition in or about the Building or Premises known
to Tenant.
5.10 Landlord's Right to Enter Premises. Tenant shall not change the locks on
any entrance to the Premises. Upon Tenant's written request to Landlord,
Landlord will make a reasonable change of locks on behalf of Tenant and at
Tenant's sole cost and expense. Landlord and its agents, employees, and
contractors shall have the right to enter the Premises at such times as Landlord
deems reasonably necessary to make necessary repairs, additions, alterations,
and improvements to the Building, including, without limitation, the erection,
use, and maintenance of pipes and conduits and to show the Premises to
prospective tenants and purchasers of the Building. Landlord shall also be
allowed to take into and through the Premises any and all needed materials that
may be required to make such repairs, additions, alterations, and improvements,
all without being liable to Tenant in any manner whatsoever. During such time as
work is being carried on in or about the Premises, provided such work is carried
out in a manner so as not to interfere unreasonably with the conduct of Tenant's
business therein, the rent provided herein shall in no way abate, and Tenant
waives any claim and cause of action against Landlord for damages by reason of
loss or interruption to Tenant's business and profits therefrom because of the
prosecution of any such work or any part thereof. In the event of emergency, or
if otherwise necessary to prevent injury to persons or damage to property, such
entry to the Premises may be made by force without any liability whatsoever on
the part of Landlord for damage resulting from such forcible entry; provided,
however, nothing in this paragraph shall relieve Landlord of any liability for
harm caused by the negligence or willful acts of Landlord, or its employees,
agents or contractors.
VI.
USE AND SERVICES
----------------
6.1 Use. Tenant shall use the Premises for general office purposes and no other
purpose. Tenant shall not use the Premises for any illegal purpose, nor violate
any statute, regulation, rule, or order of any governmental body in its use
thereof, nor create or allow to exist any nuisances or trespasses, nor do any
act in or about the Premises or bring anything onto or into the Premises which
will in any way increase the rate of insurance on the Premises, nor deface or
injure the Premises or overload the floor of the Premises or conduct its
business with greater than one (1) employee per 150 square feet of Rentable Area
of the Premises.
6.2 Services. Provided Tenant shall not be in default under this Lease,
Landlord agrees to provide to Tenant, the -------- following services:
(a) General cleaning and janitorial service required as a result of normal,
prudent use of the Premises and only on Mondays through Fridays, inclusive,
with New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas Day, and any other generally recognized
business holiday in Atlanta, Georgia (herein collectively called the
"Holidays") excepted;
(b) Heating and air-conditioning service daily on Mondays through Fridays,
inclusive, with Holidays excepted, from 8:00 a.m. to 6:00 p.m. and on
Saturdays, if not a Holiday, from 8:00 a.m. to 1:00 p.m. Landlord reserves
the right to prohibit the use of heat-generating machines and equipment
unless and until arrangements are made by Tenant, acceptable to Landlord,
to obtain and install in the Premises, at Tenant's cost, supplementary
air-conditioning equipment, and the cost of operating and maintenance of
such equipment shall be paid by Tenant on the Base Rental payment dates at
such rates as are established from time to time by Landlord. Should Tenant
desire either heating or air conditioning at times when such services are
not furnished by Landlord under the terms of this Lease, Landlord may
elect, entirely at its option, to furnish such services as requested by
Tenant upon not less than forty-eight (48) hours notice from Tenant, at
Tenant's expense and at such hourly charge as is from time to time
determined by Landlord, which charges Tenant shall promptly pay on being
billed by Landlord. Payments for such additional services shall be deemed
additional rent due from Tenant;
(c) Elevator service daily on Mondays through Fridays, inclusive, with Holidays
excepted, from 8:00 a.m. to 6:00 p.m. and on Saturdays, if not a Holiday,
from 8:00 a.m. to 1:00 p.m. At least one elevator shall be operative at all
other hours;
(d) Electric current for lighting and reasonable facilities for furnishing
usual and normal electric power for office space. Tenant shall not, without
Landlord's prior written consent, use any equipment, including, without
limitation, electronic data processing machines, punch card machines,
duplicating machines, computers or any other machines which use electric
current in excess of 110 volts 20 amperes, or which will increase the
amount of electricity ordinarily furnished for the use of the Premises in
accordance with the standards for the Building as general office space or
which requires "dedicated" circuits or other special distribution circuits.
If Tenant requires such additional electric power or such special circuits
and such power of circuits are furnished by Landlord, Tenant shall pay, on
demand, the cost of installation and maintenance of the facilities required
to provide such additional electrical power or circuits and the cost of all
such electric current consumed plus any expense of Landlord in keeping
accounts of such electric current consumed, including the cost of
installation of additional meters. Payments for such additional electrical
power shall be deemed additional rent due from Tenant.
6.3 Telephone Service.
-----------------
(a) Tenant acknowledges and agrees that securing and arranging for telephone
service to the Premises is the sole responsibility of Tenant and that
Landlord has no responsibility or obligation to provide or arrange such
telephone service, nor to permit installation of any facilities or
equipment in the Building outside the Premises in connection with providing
telephone service to the Premises.
(b) Tenant acknowledges and agrees that Landlord has entered into a "Management
and Operation Agreement" (the "Fairchild Agreement") with Fairchild
Communication Services, Inc. or its assignees (Fairfield, or its assignees,
is hereinafter referred to as "Fairchild"), whereby Fairchild agrees to
provide a branch exchange, and associated common equipment and software for
the Building, which, at the option of Tenant, may be utilized by Tenant
pursuant to separate agreement(s) between Fairchild and Tenant. Tenant
acknowledges and agrees that Landlord is in no way responsible for or
liable for the acts or omissions of Fairchild under or in connection with
either the Fairchild Agreement, any agreement(s) between Tenant and
Fairchild, or otherwise. Tenant acknowledges and agrees that any cessation
or interruption of services or breach of the Fairchild Agreement or of any
agreement between Fairchild and Tenant, or both, shall not constitute a
default by Landlord under this Lease nor a constructive eviction by
Landlord, and Tenant shall not be entitled to any abatement or reduction of
payments due under this Lease to Landlord by reason of any of such
occurrences or for any other claim arising out of or in connection with the
Fairchild Agreement, the agreement(s) between Tenant and Fairchild, or any
acts or omissions of Fairchild. Tenant agrees that it shall not be deemed a
party nor a beneficiary of the Fairchild Agreement between Landlord and
Fairchild and accordingly, Landlord shall have the right, at its option, to
modify or terminate said Agreement. Any exercise by Landlord of remedies
against Fairchild for Fairchild's default under the Fairchild Agreement
shall be solely at Landlord's option and exercised only on behalf of
Landlord.
Landlord agrees that should the arrangement between Landlord and Fairchild
be terminated for any reason or should Fairchild be in default in its
separate agreement between Fairchild and Tenant and, if applicable, any
other tenant in the Building, Landlord will utilize its best efforts to
secure or arrange for alternate telephone service.
VII.
COMPLIANCE WITH LAWS
--------------------
7.1 Compliance with Laws. Tenant shall comply, at its own expense, with all
statutes, regulations, ordinances, and orders of any governmental body,
department or agency thereof which apply to or result from Tenant's use or
occupancy of the Premises and shall abide by and observe the Rules and
Regulations attached to this Lease as Exhibit "D" and also such other rules
and regulations of uniform application for the use, occupancy, or operation
of the Building as may hereafter be established in writing by Landlord.
7.2 Rent Control. [Intentionally Deleted.]
------------
7.3 Building Alterations. If, in order to maintain the Building as an office
building or otherwise, Landlord shall be required by any governmental
authority to repair, alter, remove, construct, reconstruct, or improve any
part or all of the Building or Premises, Tenant's obligations under this
Lease will not be affected and Tenant waives all claims for injury, damage
or abatement of rent because of such repair, alterations, removal,
construction, reconstruction, or improvement, or lack thereof (except for
damages (exclusive of consequential damages and lost profits) or harm
caused by the willful act or gross negligence of Landlord, its agents,
servants or employees); provided, however, that if such action by Landlord
shall render the Premises partially or wholly unfit for occupancy and if,
in Landlord's reasonable estimation, it cannot complete such acts within
ninety (90) days, then at the option of the Landlord, to be exercised by
giving written notice to Tenant within sixty (60) days following the date
of notice to Landlord by such governmental authority, this Lease shall
terminate on the date of such election and Tenant shall immediately
surrender the Premises to Landlord. In such event, Tenant shall continue to
owe and pay rent and other charges up to but not beyond the time of such
surrender. If Landlord shall elect not to terminate this Lease as provided
above, Landlord and Tenant shall have the same respective rights and
obligations as provided above in Paragraphs 5.7(b) and (c), and the
provisions of Paragraph 5.7(g) shall apply regardless of whether or not
Landlord elects to terminate this Lease. Landlord reserves the right at all
times and from time to time during the Lease Term to redesign, reconstruct
and rearrange the appearance and location of all common areas, passage
ways, lobbies, entrances and access ways of and to the Building.
VIII.
INSURANCE, LIABILITY AND INDEMNIFICATION
----------------------------------------
8.1 Insurance.
---------
(a) Tenant shall carry fire and extended coverage insurance insuring Tenant's
interest in its improvements and betterments to the Premises and any and
all furniture, equipment, supplies, and other property owned, leased, held,
or possessed by it and contained therein, such insurance coverage to be in
an amount equal to the full insurable value of such improvements and
property.
(b) Tenant shall carry policies of insurance as follows: workers' compensation
in form and amounts as required by the state of Georgia; employers
liability in an amount of not less than $1,000,000 bodily injury by
accident, each accident, $1,000,000 bodily injury by disease, policy limit,
and $1,000,000 bodily injury by disease, each employee; and commercial
general liability, which shall include but not be limited to bodily injury,
property damages, personal injury, and broad form contractual coverage in
an amount of not less than $3,000,000 per occurrence and in the aggregate
combined single limit. Said commercial general liability insurance policy
shall name the Landlord and its agent as additional insureds, and shall, as
regards to this contract, be considered to be primary and noncontributory.
All policies shall be with insurers licensed to do business in the state of
Georgia and shall carry an A.M. Best rating of not less than A - XII (A
minus 12). Certificates of Insurance evidencing the required insurance
shall be issued no later than 10 days prior to the Commencement Date of
this Lease and no later than 10 days prior to each renewal. Certificates
shall provide that thirty (30) days written notice of cancellation or
nonrenewal be given to the Landlord. The certificate evidencing commercial
general liability coverage shall note that the Landlord and its agent are
additional insureds. The certificate of insurance evidencing the insurance
required by subparagraph 8.1(a) shall be in the form of ACCORD Form 27.
(c) Tenant shall reimburse Landlord within thirty (30) days after demand for
the costs incurred by Landlord for additional insurance premiums as to the
Building containing the Premises which is caused by the nature of Tenant's
use or occupancy of the Premises or its manner of use or occupancy of the
Premises or both.
8.2 Waiver of Subrogation. Anything to the contrary in this Lease
notwithstanding, Landlord and Tenant each hereby releases the other from
any and all liability or responsibility to the other or anyone claiming
through or under them by way of subrogation or otherwise for any loss or
damage to property caused by fire or any other perils insured in policies
of insurance covering such property, even if such loss or damage shall have
been caused by the fault or negligence of the other party, or anyone for
whom such party may be responsible, including, without limitation, any
other tenants or occupants of the remainder of the Building; provided,
however, that this release shall be applicable and in force and effect only
to the extent that such release shall be lawful at that time and in any
event only with respect to loss or damage occurring during such time as the
releasor's policies shall contain a clause or endorsement to the effect
that any such release shall not adversely affect or impair said policies or
prejudice the right of the releasor to recover thereunder and then only to
the extent of the insurance proceeds payable under such policies. Landlord
and Tenant each agrees that it will request its insurance carriers to
include in its policies such a clause of endorsement. If extra cost shall
be charged therefor, each party shall advise the other thereof and of the
amount of the extra cost, and the other party, at its election, may pay the
same, but shall not be obligated to do so. If such other party fails to pay
such extra costs, the release provisions of this Paragraph shall be
inoperative against such other party to the extent necessary to avoid
invalidation of such releasor's insurance.
8.3 Indemnity. Notwithstanding any other provision of this Lease to the
contrary, no indemnity of Tenant is required for the negligence or willful
acts of Landlord or its agents, servants or contractors. Except as
otherwise provided in Section 8.2 hereof, Tenant and Landlord indemnify and
shall hold harmless from and defend the other against any and all claims or
liability for any injury or death to any person or damage to any property
whatsoever:
(a) either (i) occurring in, on, or about the Premises, or (ii) occurring in,
on, or about any facilities (including, without limitation, elevators,
stairways, passageways or hallways) when such injury, death or damage shall
be caused in part or in whole by the act, neglect or fault of, or omission
of any duty with respect to the same by the indemnifying party, its agents,
employees, contractors, invitees, licensees, tenants, or assignees;
(b) [Intentionally Deleted.]
(c) arising from any breach or default on the part of the indemnifying party in
the performance of any covenant or agreement on the part of said party to
be performed pursuant to the terms of this Lease; or
(d) otherwise arising from any act or neglect of the indemnifying party, or any
of its agents, employees, contractors, invitees, licensees, tenants or
assignees; and from and against all costs, expenses, counsel fees, and
court costs incurred or assessed in connection with any or all of the
foregoing. The provisions of this Lease with respect to any claims or
liability occurring or caused prior to any expiration or termination of
this Lease shall survive such expiration or termination.
8.4 Liability of Landlord. Anything to the contrary herein notwithstanding,
Landlord shall not be liable to Tenant or to any persons, firm,
corporation, or other business association claiming by, through, or under
Tenant (except for the willful acts or gross negligence of Landlord, its
agents or employees) for failure to furnish or for delay in furnishing any
service provided for in this Lease, and no such failure or delay operate to
relieve Tenant from the prompt and punctual performance of each and all the
covenants to be performed herein by Tenant; nor for any latent defects in
the Premises or Building; nor for defects in the cooling, heating,
electric, water, elevator, or other apparatus or systems or for water
discharged from sprinkler systems, if any, or from water pipes and plumbing
facilities in the Building; nor for the theft, mysterious disappearance, or
loss of any property of Tenant whether from the Premises or any part of the
Building; and nor from interference, disturbance, or acts to or omitted
against Tenant by third parties, including, without limitation other
tenants of the Building. In any event, Landlord shall not be liable to
Tenant or any persons, firms, corporations or other business association
claiming by, through or under Tenant for consequential damages or lost
profits resulting from any of the events hereinabove described in this
Section 8.4. Nothing herein shall modify or diminish Landlord's obligations
under Section 10.19 of this Lease.
8.5 Limitation of Liability. Landlord's obligations and liability with respect
to this Lease shall be limited solely to Landlord's interest in the
Building, as such interest is constituted from time to time, and neither
Landlord nor any officer, director, employee, shareholder, or partner of
Landlord, or of any partner of Landlord, shall have any personal liability
whatsoever with respect to this Lease.
IX.
DEFAULT AND RELATED REQUIREMENTS
--------------------------------
9.1 Default and Remedies.
--------------------
(a) The occurrence of any of the following shall constitute "events of
default":
(i) The Base Rental (including any additional rent) or any other sum of money
payable under this Lease, or both, is not paid when due and after five (5)
days written notice from Landlord to Tenant;
(ii) The Premises are deserted, vacated, or not used regularly or consistently
as would normally be expected for similar premises put to general office
use, even though the Tenant continues to pay the stipulated monthly Base
Rental;
(iii)Tenant's interest in the Lease or the Premises shall be subjected to any
attachment, levy, or sale pursuant to any order or decree entered against
Tenant in any legal proceeding and such order or decree shall not be
vacated within fifteen (15) days of entry thereof; or
(iv) Tenant breaches or fails to comply with any term, provision, condition, or
covenant of this Lease, other than the payment of Base Rental and other
charges, or with any of the Rules and Regulations now or hereafter
established from time to time by Landlord to govern the operation of the
Building, and the same continues for thirty (30) days after written notice
from Landlord specifying such default;
(b) Upon the occurrence of an event of default, Landlord shall have the option
to do and perform any one or more of the following in addition to, and not
in limitation of, any other remedy or right permitted it by law or in
equity or by this Lease:
(i) Landlord, with or without terminating this Lease, may immediately or at any
time thereafter reenter the Premises and correct or repair any condition
which shall constitute a failure on Tenant's part to keep, observe,
perform, satisfy, or abide by any term, condition, covenant, agreement, or
obligation of this Lease or of the Rules and Regulations now in effect or
hereafter adopted or of any notice given Tenant by Landlord pursuant to the
terms of this Lease, and Tenant shall fully reimburse and compensate
Landlord on demand;
(ii) Landlord, with or without terminating this Lease, may immediately or at any
time thereafter demand in writing that Tenant vacate the Premises and
thereupon Tenant shall vacate the Premises and remove therefrom all
property thereon belonging to or placed on the Premises by, at the
direction of, or with consent of Tenant within ten (10) days of receipt by
Tenant of such notice from Landlord, whereupon Landlord shall have the
right to reenter and take possession of the Premises. Any such demand,
reentry and taking possession of the Premises by Landlord shall not of
itself constitute an acceptance by Landlord of a surrender of this Lease or
of the Premises by Tenant and shall not of itself constitute a termination
of this Lease by Landlord;
(iii)[Intentionally Deleted.]
(iv) Landlord, with or without terminating this Lease, may immediately or at any
time thereafter relet the Premises or any part thereof for such time or
times, at such rental or rentals and upon such other terms and conditions
as Landlord may deem advisable, and Landlord may make any alterations or
repairs to the Premises which it may deem necessary or proper to facilitate
such reletting; and Tenant shall pay all costs of such reletting,
including, but not limited to, the cost of any such alterations and repairs
to the Premises, attorneys' fees, and brokerage commissions; and if this
Lease shall not have been terminated, Tenant shall continue to pay all rent
and all other charges due under this Lease up to and including the date of
beginning of payment of rent by any subsequent tenant of part or all of the
Premises, and thereafter, Tenant shall pay monthly during the remainder of
the term of this Lease the differences, if any, between the rent and other
charges collected from any such subsequent tenant or tenants and the rent
and other charges reserved in this Lease, but Tenant shall not be entitled
to receive any excess of any such rents collected over the rents reserved
herein;
(v) Landlord may immediately or at any time thereafter terminate this Lease,
and this Lease shall be deemed to have been terminated upon receipt by
Tenant of written notice of such termination; upon such termination
Landlord shall recover from Tenant all damages Landlord may suffer by
reason of such termination, including, without limitation, unamortized sums
expended by Landlord for construction of "Tenant Improvements" (as such
term is defined in the Prior Lease) which are not utilized by future
tenants, all arrearage in rentals, costs, charges, additional rentals, and
reimbursements, the cost (including court costs and attorneys' fees) of
recovering possession of the Premises, the cost of any alteration of or
repair to the Premises which is necessary or proper to prepare the same for
reletting. Such election shall be made by Landlord by serving written
notice upon Tenant of its choice of one of the two said alternatives within
thirty (30) days of the notice of termination.
(c) If Landlord reenters the Premises or terminates this Lease pursuant to any
of the provisions of this Lease, Tenant hereby waives all claims for
damages which may be caused by such reentry or termination by Landlord.
Tenant shall and does hereby indemnify and hold Landlord harmless from any
costs (including court costs and attorneys' fees), suffered by Landlord by
reason of such reentry or termination. No such reentry or termination shall
be considered or construed to be a forcible entry.
(d) No course of dealing between Landlord and Tenant or any failure or delay on
the part of Landlord in exercising any rights of Landlord under this
Paragraph 9.1 or under any other provisions of this Lease shall operate as
a waiver of any rights of Landlord hereunder or under any other provisions
of this Lease, nor shall any waiver of a default on one occasion operate as
a waiver of any subsequent default or of any other default. No express
waiver shall affect any condition, covenant, rule, or regulation other than
the one specific in such waiver and that one only for the time and in the
manner specifically stated.
(e) The exercise by Landlord of any one or more of the rights and remedies
provided in this Lease shall not prevent the subsequent exercise by
Landlord of any one or more of the other rights and remedies herein
provided. All remedies provided for in this Lease are cumulative and may,
at the election of Landlord be exercised alternatively, successively, or in
any other manner except where such remedies are mutually exclusive as a
matter of law and except as otherwise provided hereunder are in addition to
any other rights provided for or allowed by law or in equity.
9.2 Insolvency or Bankruptcy. The appointment of a receiver to take possession
of all or substantially all of the assets of Tenant, or an assignment of
Tenant for the benefit of creditors, or any action taken or suffered by
Tenant under any insolvency, bankruptcy, or reorganization act, shall, at
Landlord's option, constitute a breach of this Lease by Tenant. Upon the
happening of any such event or at any time thereafter, this Lease shall
terminate five (5) days after written notice of termination from Landlord
to Tenant. In no event shall this Lease be assigned or assignable by
operation of law or by voluntary or involuntary bankruptcy proceedings or
otherwise, and in no event shall this Lease or any rights or privileges
hereunder be an asset of Tenant under any bankruptcy, insolvency, or
reorganization proceedings.
9.3 Late Payments. Tenant shall pay, as a late charge in the event any
installment of Base Rental, additional rent, or other charge to be paid by
Tenant hereunder is not paid when due, the greater of One Hundred and
No/100 ($100.00) Dollars or an amount equal to five percent (5%) of the
amount due for each and every thirty (30) day period that said amount
remains unpaid (but in no event shall the amount of such late charge exceed
an amount based upon the highest legally permissible rate chargeable at any
time by Landlord under the circumstances). Should Tenant make a partial
payment of past due amounts, the amount of such partial payment shall be
applied first to reduce all accrued and unpaid late charges in inverse
order of their maturity, and then to reduce all other past due amounts in
inverse order of their maturity.
9.4 Attorneys' Fees. If any rent or other debt owing by Tenant to Landlord
hereunder is collected by or through an attorney-at-law, Tenant agrees to
pay an additional amount equal to fifteen (15%) percent of the amount owing
under this Lease as attorneys' fees.
9.5 Waiver of Homestead. Tenant hereby waives and renounces all homestead or
exemption rights which Tenant may have under or by virtue of the
Constitutions and Laws of the United States, the State of Georgia, and any
other state as against any debt or sum Tenant may owe Landlord under this
Lease and hereby transfers, conveys, and assigns to Landlord all homestead
or exemption rights which may be set apart in any bankruptcy proceeding, to
pay any debt or sum owing by Tenant to Landlord hereunder.
9.6 No Waiver of Rights. No failure or delay of Landlord to exercise any right
or power given it herein or to insist upon strict compliance by Tenant of
any obligation imposed on it herein and no custom or practice of either
party hereto at variance with any term hereof shall constitute a waiver or
a modification of the terms hereof by Landlord or any right it has herein
to demand strict compliance with the terms hereof by Tenant. No person has
or shall have any authority to waive any provision of this Lease unless
such waiver is expressly made in writing and signed by an authorized
officer of Landlord.
X.
MISCELLANEOUS PROVISIONS
------------------------
10.1 Broker. Tenant represents and warrants to Landlord that (except with
respect to The Eidson Group, LLC who has represented Tenant and whose
commission is to be paid by Landlord pursuant to separate agreement) no
broker, agent, commissioned salesman, or other person has represented
Tenant in the negotiations for and procurement of this Agreement and of the
Premises, and that no commissions, fees, or compensation of any kind are
due and payable in connection herewith to any broker, agent, commissioned
salesman, or other person. With respect to the broker(s) or other person(s)
or firm(s) excluded above from Tenant's representation and warranty of no
broker, Landlord agrees to pay to such broker all commissions, fees, or
compensation of any kind which are due and payable to such broker in
connection with this Agreement. Tenant agrees to indemnify and hold
Landlord harmless from any and all claims, suits, or judgments (including,
without limitation, reasonable attorneys' fees and court costs incurred in
connection with any such claims, suits, or judgments) for any fees,
commissions or compensation of any kind which arise out of or are in any
way connected with any claimed agency relationship with Tenant. This
Paragraph shall not apply to commissions due with respect to the Prior
Lease (including all amendments), which commissions shall continue to be
governed by the terms of the Prior Lease.
10.2 Addresses and Notices.
---------------------
(a) Except for legal process which may also be served as by law provided or as
provided below, all notices required or desired to be given with respect to
this Lease shall be in writing and shall be deposited, postage prepaid, in
the United States mail, certified, return receipt requested, properly
addressed to the addresses specified for Landlord and Tenant in Paragraph
1.8 hereof. In the event of a change of address by either party, such party
shall give written notice thereof in accordance with the foregoing. Notices
as hereinabove provided shall be deemed given when received, refused or
rejected.
(b) [Intentionally Deleted.]
10.3 Entire Agreement and Exhibits. Except as specifically provided in the
Special Stipulations attached hereto, this Lease constitutes and contains
the sole and entire agreement of Landlord and Tenant and no prior or
contemporaneous oral or written representation or agreement between the
parties and affecting the Premises shall have legal effect. The content of
each and every exhibit which is referenced in this Lease as being attached
hereto is incorporated into this Lease as fully as if set forth in the body
of this Lease. Landlord hereby disclaims any warranties and representations
as to the Building or Premises, whether express or implied.
10.4 Subordination and Attornment.
----------------------------
(a) Except as provided in subparagraph (c) below with respect to mortgage
subordination, this Lease and all rights of Tenant hereunder are and shall
be subject and subordinate to the lien of any first mortgage, deed to
secure debt, deed of trust, or other instrument in the nature thereof which
may now or hereafter affect Landlord's interest in the Premises and to any
other instrument encumbering the Landlord's interest in the Premises and to
any modifications, renewals, consolidations, extensions, or replacements
thereof.
(b) Subparagraph (a) above shall be self-operative, and no further instrument
of subordination shall be required by the holder of any such instrument. In
confirmation of such subordination, Tenant shall, upon reasonable demand,
at any time or times, execute, acknowledge, and deliver to Landlord or the
holder of any such mortgage, deed to secure debt, deed of trust, or other
such instrument, without expense, any and all instruments that may be
requested by such holder to evidence the subordination of this Lease and
all rights hereunder to the lien of any such mortgage, deed to secure debt,
deed of trust, or other instrument, and each such renewal, modification,
consolidation, replacement, and extension thereof.
(c) Tenant shall, upon reasonable demand, at any time or times, execute,
acknowledge, and deliver to Landlord or to the holder of any mortgage, deed
to secure debt, deed of trust, or other instrument affecting or encumbering
the Landlord's interest in the Premises, without expense, any and all
instruments that may be necessary to make this Lease superior to the lien
of any such mortgage, deed to secure debt, deed of trust or other
instrument, and each renewal, modification, consolidation, replacement, and
extension thereof.
(d) If the holder of any mortgage, deed to secure debt, deed of trust or other
instrument affecting or encumbering Landlord's interest in the Premises,
shall hereafter succeed to the rights of Landlord under this Lease, whether
through possession or foreclosure action or delivery of a new lease, Tenant
shall, at the option of such holder, subject to receipt by Tenant of a
satisfactory nondisturbance agreement which shall not impose rights of
offset for past defaults of Landlord, attorn to and recognize such
successor as Tenant's landlord under this Lease and shall promptly execute
and deliver any instrument that may be necessary to evidence such
attornment. Upon such attornment, this Lease shall continue in full force
and effect as a direct lease between such successor landlord and Tenant,
subject to all of the terms, covenants, and conditions of this Lease.
10.5 Estoppel Certificate. At any time and from time to time, Tenant, on or
before the date specified in a request therefore made by Landlord,
which date shall not be earlier than ten (10) days from the making of
such request, shall execute, acknowledge, and deliver to Landlord a
certificate evidencing whether or not (i) this Lease is in full force
and effect, (ii) this Lease has been amended in any way, (iii) there
are any existing defaults on the part of Landlord hereunder to the
knowledge of Tenant and specifying the nature of such defaults, if
any, and (iv) the date to which rent, and other amounts due hereunder,
if any, have been paid. Each certificate delivered pursuant to this
Paragraph may be relied on by any prospective purchaser or transferee
of Landlord's interest hereunder or of any part of Landlord's property
or by any mortgagee of Landlord's interest hereunder or of any part of
Landlord's property or by an assignee of any such mortgagee.
10.6 Severability. If any clause or provision of this Lease is or becomes
illegal, invalid, or unenforceable because of present or future laws
or any rule or regulation of any governmental body or entity,
effective during its term, the intention of the parties hereto is that
the remaining parts of this Lease shall not be affected thereby,
unless such invalidity is, in the sole determination of Landlord,
essential to the rights of both parties in which event Landlord has
the right to terminate this Lease on written notice to Tenant.
10.7 Captions. The captions used in this Lease are for convenience only and
do not in any way limit or amplify the terms and provisions hereof.
10.8 Successors and Assigns. The words "Landlord" and "Tenant" as used
herein shall include the respective contracting party, whether
singular or plural, and whether an individual, masculine or feminine,
or a partnership, joint venture, business trust, or corporation. The
provisions of this Lease shall inure to the benefit of and be binding
upon Landlord and Tenant, and their respective successors, heirs,
legal representatives, and assigns, subject, however, in the case of
Tenant to the provisions of Paragraph 3.1 hereof. It is understood and
agreed that the term "Landlord," as used in this Lease means only the
owner(s), or the lessee(s), from time to time of the Building and/or
the land underlying the Building so that in the event of any sale or
sales of the Building and/or the land underlying the Building, or of
any lease thereof, the Landlord named herein shall be and hereby is
entirely freed and relieved of all covenants and obligations of
Landlord hereunder accruing thereafter to the extent of such sale or
lease, and it shall be deemed without further agreement that the
purchaser, or the lessee, as the case may be, has assumed and agreed,
to the same extent, to carry out any and all covenants and obligations
of Landlord hereunder during the period such party has possession of
all or such portion of the Building and/or the land underlying the
Building which it has purchased or leased. Should all of the land
underlying the Building and the entire Building be severed as to
ownership by sale and/or lease, then, unless the Tenant is otherwise
notified to the contrary in writing, either the owner of the entire
Building or the lessee of the entire Building, as the case may be,
that has the right to lease space in the Building to tenants shall be
deemed the "Landlord." Tenant shall be bound to any succeeding
landlord for all the terms, covenants, and conditions hereof and shall
execute any attornment agreement not in conflict herewith at the
request of any succeeding landlord.
10.9 Applicable Law. The laws of the State of Georgia shall govern the
interpretation, validity, performance, and enforcement of this Lease.
10.10 Time is of the Essence. Time is of the essence of this Lease;
provided, however, that failure of Landlord to provide Tenant with any
notification regarding adjustments to Base Rental or any other charges
provided for hereunder, within the time periods prescribed in this
Lease shall not relieve Tenant of its obligation to make such
contributions. Unless specifically provided otherwise, all references
to terms of days or months shall be construed as references to
calendar days or months, respectively.
10.11 Execution. This Lease may be executed in any number of counterparts,
each of which shall be deemed an original and any of which shall be
deemed to be complete in itself and may be introduced into evidence or
used for any purpose without the production of the other counterparts.
No modification or amendment of this Lease shall be binding upon the
parties unless such modification or amendment is in writing and signed
by Landlord and Tenant.
10.12 Force Majeure. Landlord and Tenant shall be excused for the period of
any delay and shall not be deemed in default with respect to the
performance of any of the terms, covenants, and conditions of this
Lease when prevented from so doing by a cause or causes beyond said
party's control, which shall include, without limitation, all labor
disputes, governmental regulations or controls, fire or other
casualty, inability to obtain any material or services, acts of God or
other supernatural forces, or any other cause not within the
reasonable control of said party. This paragraph shall not excuse
either party for the payment of monetary obligations set forth herein.
10.13 Multiple Tenants. [Intentionally Deleted.]
----------------
10.14 Authorized Signatory. If Tenant signs as a corporation, each of the
persons (of which there must be at least two) executing this Lease on
behalf of Tenant does hereby covenant and warrant that Tenant is a
duly authorized and existing corporation, that Tenant has and is
qualified to do business in Georgia, that the corporation has full
right and authority to enter into this Lease, that each and both of
the persons executing this Lease on behalf of the corporation are
authorized to do so, and that such execution is fully binding on the
corporation. If Tenant signs as a partnership, joint venture, or sole
proprietorship (each being herein called "Entity") each of the persons
executing on behalf of Tenant does hereby covenant and warrant that
Tenant is a duly authorized and existing Entity, that Tenant has full
right and authority to enter into this Lease, that all persons
executing this Lease on behalf of the Entity are authorized to do so,
and that such execution is fully binding on the Entity and its
partners, joint venturers, or principal, as the case may be.
10.15 No Recordation of Lease. This Lease is not in recordable form, and
each party agrees not to record or permit the recording of this Lease.
10.16 Special Stipulations. The Special Stipulations, if any, attached
hereto and initialed and dated by Landlord and Tenant are hereby
incorporated herein and made a part hereof and in the event they
conflict with any of the foregoing provisions, the Special
Stipulations shall control.
10.17 Acknowledgment. By execution of this Lease, Tenant and Landlord agree
to accept, honor, and be bound by all the terms, conditions, and
agreements contained herein.
10.18 Submission of Lease. The submission of this Lease for examination
does not constitute an offer to lease nor a reservation of space even
if said Lease is executed by Landlord, and this Lease shall be
effective only upon execution hereof by Landlord and Tenant and
delivery of a counterpart hereof to Landlord and Landlord's acceptance
and final approval thereof.
10.19 Quiet Enjoyment. Landlord warrants that Tenant, subject to the
payment of rent and performance of its obligations, and
notwithstanding any other provision, shall and may for the Term
hereof, reasonably and quietly hold and enjoy the Premises in
accordance with and subject to the terms of this Lease.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have duly executed this
instrument in duplicate, individually, or through their respective authorized
officers, agents, or attorneys-in-fact, as the case may be, causing their
respective seals to be affixed hereto, the day and year set forth below their
respective executions, the latest of which is and shall be deemed to be the date
of this Lease.
"TENANT"*
MATRIA HEALTHCARE, INC., a Delaware corporation
By:
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Print Name:
-----------------------------------------------
Title:
-----------------------------------------------
Date:
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Attest:
Print Name:
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Title:
-----------------------------------------------
Date:
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[CORPORATE SEAL]
"LANDLORD"
ATLANTA PARKWAY INVESTMENT GROUP,
INC., a Delaware corporation
By:_______________________________________
Paul C. Chapman, Executive Vice President
Date:
-----------------------------------------------
*Note - If Tenant is a corporation, lease must be signed by an authorized
officer of the corporation and attested by a secretary or assistant secretary of
the corporation who must also affix the corporate seal.
EXHIBIT "A"
Premises
EXHIBIT B
TENANT IMPROVEMENT AGREEMENT
WHEREAS, the undersigned Landlord and Tenant have executed, sealed, and
delivered a certain Lease Agreement (the "Lease") to which this Agreement is
attached, and into which this Agreement is fully incorporated by reference, as
Exhibit B;
WHEREAS, said Lease provides for the letting of space (the "Premises")
within 1850 Parkway Place located at Parkway Center, Marietta, Georgia (the
"Building");
WHEREAS, the terms "Landlord" and "Tenant," "Premises," "New Space,"
and "Building" as used herein shall have the same meanings ascribed thereto as
set forth in the Lease; and
WHEREAS, Landlord and Tenant desire to set forth herein their
respective agreements regarding the improvement of the New Space;
NOW THEREFORE, in consideration of the premises, the execution and
delivery of the Lease by the parties hereto, the mutual covenants contained
herein, and other good and valuable considerations, the receipt and sufficiency
of which are hereby acknowledged, Landlord and Tenant, intending to be legally
bound, hereby agree as follows:
Section 1. Tenant Improvements.
-------------------
Section 1.01 Definition.
----------
The term "Tenant Improvements" shall mean all improvements to be
constructed or installed in or on the New Space, including the Conference Room
(as relocated), in accordance with the Drawings and Specifications, as
hereinafter defined.
Section 1.02 Base Building Condition.
-----------------------
The term "Base Building Condition" shall mean the condition of the New
Space prior to commencement of the work of constructing and installing the
Tenant Improvements.
Section 2. Drawings and Specifications.
---------------------------
Section 2.01 Definition.
----------
The term "Drawings and Specifications" shall mean (i) the initial
drawings, specifications, and finish schedules utilized for pricing of the
Tenant Improvements which shall be approved by Landlord and Tenant (the "Pricing
Plans"), together with (ii) final construction drawings, specifications, finish
schedules and the like necessary to commence construction of the Tenant
Improvements consistent with the Pricing Plans, which are to be prepared by
Landlord's architect ("Landlord's Architect") and approved by Landlord and
Tenant (the "Construction Drawings"), such approvals not to be unreasonably
withheld or delayed; provided, however, that Landlord shall have the right, in
its sole discretion, to approve any of the improvements or work contemplated by
the proposed Pricing Plans which are structural in nature or affect the
structural integrity, security or life safety systems of the Building or would
require modification of the base Building systems. Landlord and Tenant agree to
respond, each to the other, within five (5) business days after receipt of a
request for approval of Pricing Plans as aforesaid and failure to so respond
within such period shall be deemed to be the approval of such party to such
request provided that written notice of this five (5) day requirement is
prominently communicated with any such request. The Drawings and Specifications,
including any changes or modifications thereto, shall be subject to Landlord's
approval, as aforesaid, shall conform with the plans for the Building and shall
comply with all applicable laws. In the event, for any reason, Landlord and
Tenant are unable to agree upon the Pricing Plans on or before April 1, 2003,
with respect to the "Conference Room" (as defined in the Special Stipulations
attached hereto), then Landlord shall have no further obligation under this
Tenant Improvement Agreement with respect to the Conference Room and the Lease
shall remain in full force and effect in accordance with its terms except that
Landlord shall have no further obligations under Section 3.02 hereof with
respect to the Conference Room. It is understood that the Tenant Improvements to
be constructed within the Conference Room shall be a similar size, finish and
quality to the "Existing Conference Room" (as defined in the Special
Stipulations) on the 3rd floor of the Building. In the event, for any reason,
Landlord and Tenant are unable to agree upon the Pricing Plans on or before
September 30, 2003, with respect to the New Space (other than the Conference
Room), then Landlord shall have no further obligation under this Tenant
Improvement Agreement with respect to such New Space (other than the Conference
Room) and the Lease shall remain in full force and effect in accordance with
their terms except that Landlord shall have no further obligation under Section
3.02 hereof with respect to such New Space (other than the Conference Room).
(a) Tenant desires to use Landlord's architect to prepare
final working drawings, specifications, finish schedules, and the like necessary
to commence construction of the Tenant Improvements. The cost of preparing the
Drawings and Specifications (including only one further set of revisions to same
if so requested by Tenant) as set forth in this Section 2.01, as well as fees
and expenses for construction management, shall be a part of the Tenant
Improvement Costs. The cost of any further revisions to such drawings,
specifications and finish schedules shall be part of Tenant's Costs under
Section 3.03, below.
(b) As soon as reasonably possible following Landlord's and
Tenant's reaching agreement on the Pricing Plans with respect to any portion of
the New Space, Landlord shall cause Landlord's Architect to prepare the
Construction Drawings. During the preparation of the Construction Drawings,
Tenant shall supply Landlord's Architect, within two (2) business days following
written request therefore, with any information necessary for the completion of
the Construction Drawings. Upon completion of the Construction Drawings,
Landlord shall deliver the Construction Drawings to Tenant for approval, which
approval may not be withheld by Tenant so long as the Construction Drawings are
substantially in accordance with the Pricing Plans. Tenant's approval or
disapproval must be provided, in writing, within three (3) business days of
Tenant's receipt of the Construction Drawings. If Tenant validly disapproves the
Construction Drawings, Landlord will cause Landlord's Architect to revise the
Construction Drawings and will resubmit the Construction Drawings to Tenant for
approval or disapproval, which must be provided by Tenant within two (2)
business days. If Landlord and Tenant have a dispute about whether the
Construction Documents are substantially in accordance with the Pricing Plans,
the parties agree to submit the dispute to an independent third-party architect
for resolution. The parties agree that the decision of the third-party architect
shall be final and binding on the parties.
(c) On or before the fifteenth (15th) day following approval
of the Construction Drawings pertaining to any portion of the New Space by
Tenant, Landlord shall obtain from Landlord's Contractor a price schedule for
the Tenant Improvements provided for by such Construction Drawings and shall
submit the same to Tenant for its approval. If Tenant disapproves such price
schedule, Tenant agrees to work promptly with Tenant's Architect and Landlord's
Contractor to alter the Drawings and Specifications as necessary to cause the
price quotation based thereon to be acceptable to Tenant. The aggregate cost for
the Tenant Improvements for all of the New Space, once approved by Tenant, shall
hereinafter be referred to as "Tenant Improvement Costs". Upon determination of
the Tenant Improvement Costs with respect to any portion of the New Space,
Tenant shall be deemed to have given final approval to the Drawings and
Specifications with respect to such portion of the New Space and Landlord shall
be deemed to have been authorized to proceed, through Landlord's Contractor,
with the work of constructing and installing the Tenant Improvements in
accordance with such Drawings and Specifications.
Section 3. Payment of Costs.
----------------
Section 3.01 Landlord's Costs for Drawings.
-----------------------------
The cost of preparing the drawings, specifications, and finish
schedules, as provided in Section 2.01 above, shall be part of the Tenant
Improvement Costs.
Section 3.02 Landlord's Allowance for Tenant Improvement Costs.
-------------------------------------------------
(a) Landlord shall pay the Tenant Improvement Costs up to, but
not exceeding $16.00 per square foot of Rentable Area in the New Space exclusive
of the Conference Room, or $1,098,992.00 based upon 68,687 square feet of
Rentable Area in the New Space exclusive of the Conference Room which contains
3,872 square feet (the "Landlord's Allowance for Tenant Improvement Costs"). A
minimum of $549,496.00 (based on $8.00 per square foot of rentable area in the
New Space exclusive of the Conference Room) of the Landlord's Allowance for
Tenant Improvement Costs must be expended on permanent and semi-permanent
finishes and improvements to the New Space exclusive of the Conference Room,
space planning, architectural design, construction drawings preparation,
construction-related fees, and permits. The remainder of Landlord's Allowance
for Tenant Improvement Costs may be utilized by Tenant for cabling and wiring of
the New Space, moving expenses incurred by Tenant in connection with the
contraction and expansion of the Premises as contemplated by this Lease, and any
unused portion may be utilized by Tenant as a credit against Base Rental due
under the Lease after such time as Landlord has completed construction of the
Tenant Improvements; provided, however, that the maximum amount that may be
utilized by Tenant as a credit against Base Rental hereunder shall be the sum of
$4.00 per square foot of rentable area in the New Space exclusive of the
Conference Room, or $274,748.00 based on 68,687 square feet of rentable area in
the New Space exclusive of the Conference Room. For purposes of applying the
credit against Base Rental referenced in the previous sentence, Tenant shall be
entitled to apply such credit to the Base Rental next coming due for the first
month or months immediately after the month in which Landlord and Tenant have
executed the Tenant Acceptance Agreement with respect to the New Space as
contemplated by this Lease. Any such amounts utilized by Tenant as a credit
against Base Rental shall be considered "Excused Rent" pursuant to Paragraph 6
of the Special Stipulations of this Lease. The remainder of Landlord's Allowance
for Tenant Improvement Costs not utilized by Tenant pursuant to this Section
1.04(b) shall be retained by Landlord. All improvements made from concrete slab
to concrete deck shall be deducted from this allowance.
(b) Anything to the contrary herein notwithstanding, all costs
incurred by Landlord in connection with constructing any Tenant Improvements
within the Conference Room in accordance with this Agreement and Paragraph 5(a)
of the Special Stipulations attached hereto, shall be paid by Landlord and shall
not be deducted from Landlord's Allowance for Tenant Improvement Costs.
Section 3.03 Tenant's Costs.
--------------
The aggregate of all costs described in the following subparagraphs (a)
through (c) of this Section 3.03 are hereinafter referred to collectively as
"Tenants Costs".
(a) The Tenant Improvement Costs over and above the Landlord's Allowance
for Tenant Improvement Costs;
(b) Fees for architects, engineers, interior designers, and other
professionals and design specialists incurred by Tenant in connection
with the Tenant Improvements other than fees payable to DMA, Inc. by
Tenant in connection with the preparation of the portion of the
drawings and Specifications which, pursuant to Section 1.03 above, are
Tenant's responsibility and except for fees of engineers engaged by
Tenant in connection with the design of Tenant's data room;
(c) The cost of making any and all changes in and to the Drawings
and Specifications and any and all increased costs in the Tenant
Improvement Costs resulting therefrom; and in the event the aggregate
of Tenant Costs, as defined above, exceeds Landlord's Allowance
for Tenant Improvement Costs, as specified in Section 3.02 above,
then Tenant shall promptly pay the excess to Landlord as additional
rent, as set forth in Section 3.04.
Section 3.04 Payment Schedule for Tenant's Costs.
-----------------------------------
Tenant shall pay to Landlord the Tenant's Costs within thirty (30) calendar
days after Tenant's receipt of invoices for the work of constructing and
installing the Tenant Improvements from Landlord.
Section 3.05 Changes in Drawings and Specifications.
--------------------------------------
If at any time after the Tenant Improvement Costs are determined Tenant
desires to make changes in the Drawings and Specifications, Tenant shall submit
to Landlord for approval working drawings, specifications, and finish schedules
for any and all such desired changes. The process of finalizing such drawings
and the like shall be as set forth in Section 2 above. Once any and all changes
and modifications are approved, Landlord shall promptly submit the same to
Landlord's Contractor for pricing. The procedure for determining an approved
cost for such changes shall be as set forth in Section 2 above. Once a cost for
such changes has been approved, all references in this Agreement to "Drawings
and Specifications" shall be to the Drawings and Specifications adopted pursuant
to the procedures of Section 2 above, as changed and modified pursuant to this
Section 3.05, and all references to "Tenant Improvement Costs" shall be deemed
to include the aggregate approved cost for the changes as determined in this
Section 3.05. Once the changes and the costs therefore have been approved,
Tenant shall be deemed to have given full authorization to Landlord to proceed
with the work of constructing and installing the Tenant Improvements in
accordance with the Drawings and Specifications, as changed and modified.
Landlord, at its option, can require Tenant to pay in lump sum to Landlord any
and all increases in the Tenant Improvement Costs which result from approved
changes to the Drawings and Specifications. Any delays in completing the Tenant
Improvements which result from either changes in the Drawings and Specifications
made by Tenant or from the unavailability of materials specified by Tenant,
shall not operate to delay or extend the Commencement Date under the Lease nor
the payment of the Base Rental or other charges due under the Lease.
Section 3.06 Failure to Pay Tenant's Costs.
-----------------------------
Failure by Tenant to pay Tenant's Costs in accordance with this Section 3
will constitute a failure by Tenant to pay rent when due under the Lease and
shall therefore constitute an event of default by Tenant under the Lease, and
Landlord shall have all of the remedies available to it under this Lease and at
law or in equity for nonpayment of rent.
Section 3.07 Landlord's Disbursement Obligations.
----------------------------------
Landlord agrees to pay the Tenant Improvement Costs as and when the same
become due and payable, subject to Tenant's obligations to reimburse Landlord
for Tenant's Costs as provided in Section 3.04. Landlord shall be entitled to
rely on the accuracy of any and all invoices and fee statements for labor and
materials performed on or furnished to the Tenth Amendment Expansion Space in
connection with the Tenant Improvements, and to rely, to the extent submitted,
on any and all certifications as to Tenant Improvement Costs submitted by
Landlord's Contractor and/or Landlord's Architect. Notwithstanding the
foregoing, the within release and indemnification of Landlord by Tenant shall
not release any other third parties, nor shall it waive any and all rights which
Tenant may have against other third parties in connection with the payment or
nonpayment of Tenant Improvement Costs.
Section 4. Finish Work in Addition to Tenant Improvements.
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All work in or about the New Space which is not within the scope of the
work necessary to construct and install the Tenant Improvements, such as
delivering and installing furniture, telephone equipment, and wiring, and office
equipment and computer wiring, shall be furnished and installed by Tenant
entirely at Tenant's expense. Tenant shall adopt a schedule for performing such
additional work consistent with the schedule of Landlord's Contractor and shall
see that such work is conducted in such a manner as to maintain harmonious labor
relations and as not to interfere unreasonably with or to delay the work of
constructing or installing the Tenant Improvements. Landlord shall give access
and entry to the New Space to Tenant and its contract parties performing such
additional work and reasonable opportunity and time to enable Tenant and such
contract parties to perform and complete such work. All of such additional work
and Tenant's use (and the use by its contract parties) of the New Space for such
purposes shall be entirely in accordance with the Lease, including without
limitation this Agreement.
Section 5. Time is of the Essence.
----------------------
Time is of the essence of this Agreement. Unless specifically provided
otherwise, all references to days or months shall be construed as references to
calendar days or months, respectively.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement in duplicate, individually or through their respective authorized
officers, partners, agents or attorneys-in-fact, as the case may be, and sealed
this Agreement or caused their respective seals to be affixed hereto, the day
and year set forth below their respective executions, the latest of which is and
shall be deemed to be the date of this Agreement.
"Tenant"
MATRIA HEALTHCARE, INC.
By:
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Print Name:
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Title:
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Date:
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Attest:
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Print Name:
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Title:
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Date:
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[CORPORATE SEAL]
"Landlord"
ATLANTA PARKWAY INVESTMENT
GROUP, INC., a Delaware corporation
By:__________________________________
Paul C. Chapman,
Executive Vice President
Date:_________________________________
EXHIBIT C
TENANT ACCEPTANCE AGREEMENT
---------------------------
This Agreement, made between Atlanta Parkway Investment Group, Inc., a
Delaware corporation, (hereinafter referred to as "Landlord"), and Matria
Healthcare, Inc., a Delaware corporation (hereinafter referred to as "Tenant").
WHEREAS, Landlord and Tenant entered into a Lease Agreement dated
_________, 2002 (hereinafter referred to as the "Lease") for 110,931 rentable
square feet in the building know as One Parkway Center, Suites 210, 215, 320,
321, 600, 620, 700, 735, 900, and all of the tenth (10th), eleventh (11th), and
twelfth (12th) floors, hereinafter referred to as the Premises.
NOW, THEREFORE, pursuant to the provisions of the Amendment, Landlord and
Tenant mutually agree as follows:
(a) The Expiration Date of the Lease Term is ____________, 20__.
(b) Tenant is in possession of, and has accepted, the New Space demised by
the Lease (being approximately 72,559 square feet of rentable area), and
acknowledges that all the work to be performed by the Landlord in the New Space
as required by the terms of the Amendment has been satisfactorily completed.
Tenant further certifies that all conditions of the Lease and the Amendment
required of Landlord as of this date have been fulfilled and there are no
defenses or set-offs against the enforcement of the Lease and the Amendment by
Landlord.
IN WITNESS WHEREOF, the parties hereto have signed and sealed this
Agreement, as of the ____ day of _______________, 200__.
"Tenant"
MATRIA HEALTHCARE, INC.
By:
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Print Name:
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Title:
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Date:
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Attest:
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Print Name:
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Title:
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Date:
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[CORPORATE SEAL]
"Landlord"
ATLANTA PARKWAY INVESTMENT GROUP,
INC., a Delaware corporation
By:_____________________________
Paul C. Chapman,
Executive Vice President
EXHIBIT D
RULES AND REGULATIONS
---------------------
1. The sidewalks, and public portions of the Building, such as entrances,
passages, courts, elevators, vestibules, stairways, corridors or halls, and the
streets, alleys or ways surrounding or in the vicinity of the Building shall not
be obstructed, even temporarily, or encumbered by Tenant or used for any purpose
other than ingress and egress to and from the Premises.
2. No awnings or other projections shall be attached to the outside walls of the
Building. No curtains, blinds, shades, louvered openings or screens shall be
attached to or hung in, or used in connection with, any window or door of the
Premises, without the prior written consent of Landlord, unless installed by
Landlord.
3. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Tenant on any part of the outside of the
Premises or Building or on corridor walls, or within 24 inches of the surface of
exterior windows. Signs on entrance door or doors shall conform to building
standard signs as established by Landlord. Signs on doors shall, at Tenant's
expense, be inscribed, painted or affixed for each tenant by sign makers
approved by Landlord. In the event of the violation of the foregoing by Tenant,
Landlord may remove same without any liability, and may charge the expense
incurred by such removal to Tenant.
4. The sashes, sash doors, skylights, windows, heating, ventilating and air
conditioning vents and doors that reflect or admit light and air into the halls,
passageways or other public places in the Building shall not be covered or
obstructed by Tenant.
5. No show cases or other articles shall be put in front of or affixed to any
part of the exterior of the Building, nor placed in the public halls, corridors,
or vestibules without the prior written consent of Landlord.
6. The water and wash closets and other plumbing fixtures shall not be used for
any purposes other than those for which they were constructed, and no sweepings,
rubbish, rugs, or other substances shall be thrown therein. All damages
resulting from any misuse of the fixtures shall be borne by Tenant.
7. Tenant shall not in any way deface any part of the Premises or the Building.
Tenant shall not lay linoleum, or other similar floor covering, so that the same
shall come in direct contact with the floor of the Premises, and, if linoleum or
other similar floor covering is desired to be used, an interlining of builder's
deadening felt shall be first affixed to the floor, by a paste or other
material, soluble in water, the use of cement or other similar adhesive material
being expressly prohibited.
8. No bicycles, vehicles, or animals of any kind shall be brought into or kept
in or about the Premises. No cooking shall be done or permitted by Tenant on the
Premises except in conformity to law and then only in the utility kitchen, if
any, as set forth in Tenant's layout, which is to be primarily used by Tenant's
employees for heating beverages and light snacks. Tenant shall not cause or
permit any unusual or objectionable odors to be produced upon or permeate from
the Premises.
9. No space in the Building shall be used for manufacturing, distribution,
or for the storage of merchandise or for the sale of merchandise, goods, or
property of any kind at auction.
10. Tenant shall not make, or permit to be made, any unseemly or disturbing
noises or disturb or interfere with occupants of the Building or neighboring
buildings or premises or those having business with them, whether by the use of
any musical instrument, radio, talking machine, unmusical noise, whistling,
singing, or in any other way. Tenant shall not throw anything out of the doors,
windows or skylights or down the passageways.
11. Neither Tenant, nor any of Tenant's servants, employees, agents, visitors,
or licensees, shall at any time bring or keep upon the Premises any inflammable,
combustible or explosive fluid, or chemical substance, other than reasonable
amounts of cleaning fluids or solvents required in the normal operation of
Tenant's business offices.
12. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by Tenant, nor shall any changes be made in existing locks or
the mechanism thereof, without the prior written approval of Landlord and unless
and until a duplicate key is delivered to Landlord. Tenant shall upon the
termination of its tenancy, restore to Landlord all keys, either furnished to,
or otherwise procured by, Tenant, and in the event of the loss of any keys so
furnished, Tenant shall pay to Landlord the cost thereof.
13. Tenant shall not overload any floor. Tenant shall obtain Landlord's consent
before bringing any safes, freight, furniture, or bulky articles into the
Building and Landlord can specify to Tenant the location for the placement of
such articles. All removals, or the carrying in or out of any safes, freight,
furniture, or bulky matters of any description must take place during the hours
which Landlord or its agent may determine from time to time. Landlord reserves
the right to inspect all freight to be brought into the Building and to exclude
from the Building all freight which violates any of these Rules and Regulations
or the Lease of which these Rules and Regulations are a part.
14. Tenant shall not occupy or permit any portion of the Premises to be
occupied, without Landlord's expressed prior written consent, as an office for a
public stenographer or typist, or for the possession, storage, manufacture or
sale of liquor, narcotics, dope, tobacco in any form, or as a barber or manicure
shop, or as a public employment bureau or agency, or for a public finance
(personal loan) business. Tenant shall not engage or pay any employees on the
Premises, except those actually working for Tenant on said premises, nor
advertise for laborers giving an address at the Building.
15. Tenant agrees to employ such janitorial contractor as Landlord may from time
to time designate, for any waxing, polishing, and other maintenance work of the
Premises and of the Tenant's furniture, fixtures and equipment. Tenant agrees
that it shall not employ any other cleaning and maintenance contractor, nor any
individual, firm or organization for such purpose without Landlord's prior
written consent.
16. Landlord shall have the right to prohibit any advertising by Tenant which,
in Landlord's opinion, tends to impair the reputation of the Building or its
desirability as a building for offices, and upon written notice from Landlord,
Tenant shall refrain from or discontinue such advertising.
17. Landlord reserves the right to exclude from the Building at all times other
than business hours all persons who do not present a pass to the Building signed
by Tenant. Tenant shall be responsible for all persons for whom it issues such
pass and shall be liable to Landlord for all acts of such persons.
18. At the option of Landlord, Tenant agrees to purchase from Landlord or its
agents all lamps and bulbs used in the Premises and to pay for the cost of
installation thereof.
19. The premises shall not be used for lodging or sleeping or for any
immoral or illegal purpose.
20. The requirements of Tenant will be attended to only upon application at the
office of the Building. Building employees shall not perform any work or do
anything outside of their regular duties, unless under special instructions from
the office of Landlord.
21. Canvassing, soliciting, and peddling in the Building are prohibited and
Tenant shall cooperate to prevent the same.
22. There shall not be used in any space, or in the public halls of any
building, either by Tenant or by its jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards. No hand trucks shall be used in passenger elevators.
23. In order to obtain maximum effectiveness of the cooling system, Tenant shall
lower and/or close the blinds or drapes when sun's rays fall directly on windows
of premises. Tenant shall not remove the standard blinds installed in the
premises.
24. All paneling or other wood products not considered furniture shall be of
fire-retardant materials. Before installation of any such materials,
certification of the materials' fire-retardant characteristics shall be
submitted to landlord or its agents, in a manner satisfactory to Landlord.
25. Tenant shall not install any vending machines in the Building or
premises without Landlord's consent.
26. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular Tenant or Tenants, but no such waiver by Landlord
shall be construed as a waiver of such Rules and Regulations in favor of any
other Tenant or Tenants, nor prevent Landlord from thereafter enforcing any such
Rules and Regulations against any or all Tenants of the Building.
27. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be for safety and security,
for care and cleanliness of the Building and for the preservation of good order
therein. Tenant agrees to abide by all such Rules and Regulations hereinabove
stated and any additional rules and regulations which are adopted.
Whenever the above rules conflict with any of the rights or obligations of
Tenant pursuant to the provisions of the Paragraphs of this Lease, the
provisions of the Paragraphs shall govern.
SPECIAL STIPULATIONS
THESE SPECIAL STIPULATIONS are attached to and made a part of that
certain ONE PARKWAY CENTER LEASE AGREEMENT between ATLANTA PARKWAY INVESTMENT
GROUP, INC., as Landlord, and MATRIA HEALTHCARE, INC., as Tenant, which is
hereby incorporated herein by this reference (the "Lease"). In the event of
conflict between the below special stipulations and the Lease, the special
stipulations shall govern and control. Capitalized terms used herein and not
defined shall have the meanings ascribed to them in the Lease.
1. Prior Lease. This Lease constitutes an amendment and a restatement
in its entirety of that certain Lease Agreement between LaSalle Fund III and
Healthdyne, Inc., dated May 19, 1988, as amended by instruments dated August 23,
1990, November 15, 1991, August 28, 1992, January 19, 1993, March 5, 1993,
August 16, 1993, February 7, 1994, June 1, 1996, July 1, 1996, October 30, 1998,
August 8, 2000, and by instrument dated of even date with this Lease (said Lease
Agreement, as so amended, is herein referred to as the "Prior Lease"). This
Lease has been entered into by Landlord and Tenant as a convenience to said
parties in order to consolidate all the terms and provisions of the Prior Lease
into one document. Landlord and Tenant have each reviewed this Lease and
confirm, each to the other, that this Lease contains all of the terms and
provisions of the Prior Lease which are in effect as of the date hereof except
to the extent modified by this Lease. Accordingly, from and after the date
hereof, Landlord and Tenant agree to be bound by the terms and provisions of
this Lease for the period commencing on the date hereof, and not by the terms
and provisions of the Prior Lease. Notwithstanding the foregoing, nothing
contained herein is intended to release either Landlord or Tenant from any
liability or obligation (including any warranty, representation, certification,
statement or acknowledgment) which were made or had accrued under the Prior
Lease (including indemnification obligations regarding brokerage) for any period
prior to the date hereof, the effective date of this Lease. Further, anything to
the contrary in this Lease notwithstanding, the execution and delivery of this
Lease by Landlord shall not under any circumstances be deemed an assumption by
Landlord of any obligations or liabilities of any predecessor landlords to
Tenant (or any of its predecessor tenants) under or arising out of the Prior
Lease. In addition to the foregoing, Landlord and Tenant acknowledge that they
have entered into that certain Antenna License Agreement, dated as of March 5,
1997, which has been amended by First Amendment to Antenna License Agreement,
dated of even date herewith, and that such Agreement, as amended, shall survive
the execution and delivery of this Lease.
2. Contraction and Expansion of Premises. Effective as of March 1, 2003
(the "Contraction Date"), the Premises shall be contracted and expanded to
consist solely of the space described below consisting of approximately 72,559
rentable square feet (the "New Space"), which New Space is more particularly
depicted on the floor plan attached hereto as Exhibit "A-1" which is
incorporated herein and by this reference made a part hereof. Landlord and
Tenant acknowledge that the space being added, as a result of this Agreement, to
the Premises effective on the Contraction Date is the conference room space on
the 9th floor, consisting of 3,872 square feet or Rentable Area (the "Conference
Room"), subject, however, to the terms and provisions of Paragraph 4(a), below,
whereby the parties have agreed that, prior to March 10, 2003, the exact
location of the Conference Room and the exact square footage thereof may change
and be located on either of the 1st, 6th, or 9th floors of the Building.
Landlord and Tenant further acknowledge that, pursuant to the terms and
provisions of Paragraph 4(b) below, the parties have agreed that, prior to March
1, 2003, the parties will agree on the exact amount of contraction to be
effected on the tenth floor of the Building (presently estimated to result in
Tenant retaining approximately 2,994 square feet of Rentable Area). The exact
square footage of such reduction may change and the location of such space on
the tenth floor may change. Accordingly, effective on the Contraction Date and
subject to the foregoing, the Premises shall consist of the following:
Square Feet of
Floor/Suite Rentable Area
- ----------- --------------
12 (all) 20,211
11 (all) 20,265
10/Suite 1000 2,994 (Subject to Paragraph
4(b))
9/Suite 900 9,806
6/Suite 600 15,411
Conf. / Suite 920 3,872 (Subject to Paragraph
===== 4(a))
Total 72,559
As of the Contraction Date, the term "Rentable Area of the Premises," as defined
in Section 1.4 of the Lease, shall mean 72,559 square feet of Rentable Area, the
term "Premises" shall mean the 72,559 square feet of space as more particularly
described above, and the "Tenant's Percentage Share," as defined in Section
1.6(b) of the Lease, for all purposes under the Lease shall mean 32.0917%.
Tenant acknowledges that its right to possess any of the Premises which are not
part of the New Space shall terminate on the Contraction Date and, accordingly,
Tenant agrees to remove all of its personal property from said premises and to
surrender the Premises to Landlord in the condition as required by the terms and
provisions of the Lease had the Lease terminated in accordance with its terms
with respect to such surrendered space.
3. Base Rental for the New Space; Adjustments and Reimbursements.
Effective on the Contraction Date (that is, March 1, 2003), the Base Rental for
the New Space (72,559 square feet) shall be as follows for the period of time
indicated, subject to increase as hereinafter provided:
Period $/ Resulting Annual Resulting Monthly Base
Effective RSF Base Rental Rental
3/1/03 - 2/28/10 $19.00 $1,378,621.00 $114,885.00
Base Rental for the New Space shall be due and payable in equal monthly
installments payable on or before the first day of each month during time period
specified above. Effective on the Contraction Date, the "Base Year" for purposes
of Paragraphs 1.6(c) and 4.3 of the Lease for the New Space shall be the year
2003. Commencing on January 1, 2004, the amount of the annual Base Rental
specified in this Paragraph with respect to the New Space shall be increased at
the end of each calendar year during the Lease Term for the following calendar
year effective January 1 of said year by an amount equal to the product computed
by multiplying the then in force annual Base Rental for the New Space for the
immediately preceding calendar year times 1.03, such first rental increase to be
reflected in the monthly Base Rental for the New Space due on January 1, 2004,
and to be in the annual amount of $1,419,980.00. The amounts by which the Base
Rental is increased pursuant to this Paragraph shall be deemed to thereafter be
a part of "Base Rental" for all purposes whatsoever under this Lease and a part
of the rent and consideration for this Lease and to be payable in a like manner
to the initial amount of Base Rental for the New Space specified herein.
4. Conference Room and Data Center.
-------------------------------
(a) Conference Room. For purposes hereof, the term "Existing
Conference Room" shall mean that certain 5,684 square feet of Rentable Area
located in Suite 320 on the 3rd floor of the Building consisting of a conference
room, travel department and training department. Landlord and Tenant acknowledge
that, as of the signing of this Lease, the exact location in the New Space of
the approximately 3,872 square feet of rentable area to serve as a replacement
conference room for the Existing Conference Room has not yet been finalized. The
parties acknowledge that such new conference room (herein, as finally agreed to
by the parties hereto, being referred to as the "Conference Room") shall be
located on either the first, sixth or ninth floors of the Building. In the event
such Conference Room is finally located on the ninth floor, then the Rentable
Area therein shall be 3,872 square feet. Landlord agrees that, in the event
Landlord has not leased to a new tenant Suite 110, consisting of approximately
4,232 square feet) on the first floor of the Building by March 1, 2003, Tenant
shall have the right to include all (but not less than all) of such 4,232 square
feet of Rentable Area as the Conference Room. The final location of such
conference room (unless Tenant has elected to take such 4,232 square feet in
Suite 110, as aforesaid) shall be determined by Landlord not later than March
10, 2003. Landlord shall consult with Tenant in determining such final location
and the amount of square feet to be included within the Conference Room, it
being understood that the Rentable Area shall be 4,800 square feet if located on
the sixth floor. In the event Landlord notifies Tenant that Landlord has leased
such Suite 110, then Tenant's right thereafter to elect the first floor as the
location of the Conference Room shall terminate and Landlord shall promptly
thereafter make such determination of the location of the Conference Room as
provided above. Upon such determination, Landlord and Tenant shall amend this
Lease to reflect the exact location thereof and the amount of square footage of
Rentable Area located therein and to provide for a change in the Base Rental
based upon the final square footage of Rentable Area in the New Space as a
result of the adjustment in the square feet of Rentable Area in the Conference
Room as may be made pursuant to this Paragraph 4(a). Such amendment shall also
reflect an amendment to Exhibit "B" (Tenant Improvement Agreement) to this Lease
to reflect changes in various allowances based upon the final square footage of
the New Space and the Conference Room, including, if such amendment is made
effective after the Contraction Date, an adjustment in the amount of Base Rental
due under Paragraph 2 of the Special Stipulations to reflect an abatement of
Base Rental and all other additional rent due hereunder with respect to the
Conference Room for the period starting on March 1, 2002 and ending on the date
such Conference Room has been completed and is ready for occupancy by Tenant.
(b) Data Center. Landlord and Tenant acknowledge as of the
date hereof, Tenant has installed a data center in approximately 2,079 square
feet of Rentable Area on the tenth floor of the Building and that Tenant intends
to enlarge such data center to approximately 2,994 square feet and that such
enlargement shall generally be in the location between the current location and
the window wall of the Building on that floor as shown on Exhibit "A-1" hereto.
On or before March 1, 2003, Landlord and Tenant covenant and agree to amend this
Lease to provide for the exact location of such new data center on the tenth
floor of the Building and provide the exact square footage of Rentable Area
located therein and to provide for an adjustment in Base Rental due hereunder
based upon the final square footage of the New Space. Such amendment shall also
reflect an amendment to Exhibit "B" (Tenant Improvement Agreement) to this Lease
to reflect changes in the various allowances based on the final square footage
of the data center to be included in the New Space in accordance with this
Paragraph 4(b). In the event, for any reason, Landlord and Tenant are unable to
reach such agreement and enter such amendment by such date, then Paragraph 2,
above, shall remain in effect as stated and the space to be leased on the tenth
floor effective on the Contraction Date shall conclusively deemed to be the
2,994 square feet of Rentable Area shown on Exhibit "A-1" to this Lease.
5. Possession; Tenant Improvements.
-------------------------------
(a) Tenant agrees to take and accept the New Space from
Landlord in its present as-is condition and as suited for the use intended by
Tenant, except for such improvements as may be expressly provided for in the
Tenant Improvement Agreement attached hereto and made a part hereto as Exhibit
"B" (the "Tenant Improvement Agreement"). Provided Tenant is not in default
under the Lease, Landlord agrees to construct or install in the New Space the
"Tenant Improvements," as defined in and to be constructed or installed pursuant
to the provisions of said Tenant Improvement Agreement. It is understood that
such "Tenant Improvements" shall consist of painting, wall cover, mill work and
other finish items with respect to the portion of the Premises which remain
after the Contraction Date and, with respect to the Conference Room only, shall
consist of customary tenant improvements and shall be similar in size, finish
and quality to the Existing Conference Room. Tenant agrees to comply with all
the terms and provisions of the Tenant Improvement Agreement, including, without
limitation, the obligation to pay, as additional rent, all amounts due Landlord
under Paragraph 3 thereof according to the payment provisions contained in said
Paragraph 3. No delay in delivery of the Tenant Improvements shall render the
Lease void or voidable, nor shall Landlord be liable to Tenant for any loss or
damages resulting there from. No such delay shall operate to relieve Tenant of
Tenant's obligations to Landlord as provided in the Lease, including, without
limitation, the obligation to pay Base Rental. Notwithstanding the foregoing,
the Base Rental payable with respect to any portion of the Tenant Improvements
to be constructed in the Conference Room which is not completed by June 1, 2003,
shall abate (provided Tenant is not in default under the Lease) until the date
on which said Tenant Improvements are substantially complete; provided, however,
that Tenant shall not be entitled to any such rent abatement if and to the
extent that any delay in completing the Tenant Improvements in such Conference
Room is attributable to Tenant, its employees or agents, or any such party's
failure to comply with the provisions hereof.
(b) Tenant acknowledges that a portion of the Tenant
Improvements are to be constructed during Tenant's occupancy of the New Space.
With respect to those portions of the New Space located within the Premises,
Tenant agrees to provide access to such space to Landlord in order to allow
Landlord to undertake the Tenant Improvements and, in connection therewith,
there shall not be any abatement of Base Rental or other sums due Landlord under
the Lease as a result of Tenant's inability to use all or any portion of the New
Space during the period of such construction.
(c) It shall be a condition to Landlord's obligation to fund
any of the "Landlord's Allowance for Tenant Improvement Costs", as defined in
the Tenant Improvement Agreement, that the cost for any such improvements to be
paid for from the Landlord's Allowance for Tenant Improvement Costs shall not
exceed the aggregate sum of $16.00 per rentable square foot of the portion of
the New Space (exclusive of the Conference Room) as to which such improvements
are to be made, it being the intent of the parties hereto that Landlord's
Allowance for Tenant Improvement Costs shall be utilized by Tenant on a pro-rata
basis throughout the New Space (exclusive of the Conference Room) and not
utilized in such a fashion as to cause any portion or portions of the New Space
(exclusive of the Conference Room) to be improved to a materially greater extent
than other portions. Tenant's rights under this Paragraph 5 and under the Tenant
Improvement Agreement to have Landlord build out the Tenant Improvements is
personal to Tenant and shall become null and void upon the occurrence of an
assignment of the Lease or a sublet of all or any portion of the Premises.
Further, as a condition to Tenant's rights under this Paragraph 5 and the Tenant
Improvement Agreement, Tenant shall be in occupancy of substantially all of the
New Space.
(d) Upon request of Landlord, within twenty (20) days after
the New Space has been substantially completed in accordance with the Tenant
Improvement Agreement, Tenant will execute and deliver to Landlord a Tenant
Acceptance Agreement in the form attached to the Lease as Exhibit "C". The
parties hereto acknowledge and agree that all of such Tenant Improvements are to
be completed and paid for no later than March 1, 2004. Accordingly, if and to
the extent any portion of the funds to be paid by Landlord pursuant to the
Tenant Improvement Agreement have not been disbursed by March 1, 2004 (other
than as a result of the default of Landlord), such unused funds shall be
retained by Landlord and shall no longer be available for use by Tenant in
accordance with the Tenant Improvement Agreement.
(e) At Landlord's expense, Landlord shall renovate the
restrooms located on the 12th floor of the Building to a finish similar to the
restrooms located on the other floors on the Building, such renovation to be
completed on or about the date required for completion of the Tenant
Improvements contemplated above in the New Space.
6. Excused Rent. Provided Tenant is not then in default under this
Lease, Landlord shall conditionally excuse the payment of all of the Base Rental
due with respect to the Premises for the five (5) month period commencing on the
Contraction Date and ending on July 31, 2003. The sum of (i) aggregate amounts
of Base Rental excused pursuant to the preceding sentence; (ii) the aggregate
amounts of Base Rental excused pursuant to that certain Twelfth Amendment to
Lease Agreement between Landlord and Tenant, dated of even date herewith (which
provides for the excuse of payment of portions of Base Rental for the months of
November and December 2002); and (iii) all credits applied by Tenant against the
payment of Base Rental pursuant to Section 3.02(a) of the Tenant Improvement
Agreement attached to this Lease as Exhibit B, are herein referred to,
collectively, as the "Excused Rent". Upon any default by Tenant of any of its
obligations under this Lease which require the payment of money or a default by
Tenant under Paragraph 3.1 of this Lease (any such default is hereinafter
referred to an "Excused Rent Default"), all provisions of this Lease pertaining
to the excuse of payment by Landlord of any Excused Rent shall have no further
force and effect and all of such Excused Rent which has been excused for periods
prior to the date the Excused Rent Default occurs shall immediately thereafter
become due and payable to Landlord in full. Landlord shall waive any rights to
payment of Excused Rent if no Excused Rent Default has occurred as of the
Expiration Date of this Lease. This Paragraph shall not be deemed to excuse
payment of any additional rent or other charges due under this Lease except for
the payment of Base Rental payable for the specific periods and in the specific
amounts hereinabove described.
7. Prior Renewal and Expansion Rights. Landlord and Tenant acknowledge
and agree that any rights or options of Tenant to expand or enlarge the Premises
provided in the Prior Lease have lapsed or have been deleted from the Lease by
prior amendment and shall have no further force or effect, including, without
limitation, Tenant's rights of first offer contained in Paragraph 7 of the
Amendment to Lease Agreement dated August 23, 1990, and Paragraph 4 of the Third
Amendment to Lease Agreement dated August 28, 1992. Further, any rights or
options of Tenant to renew or extend the Term of this Lease provided in the
Prior Lease have lapsed or have been deleted from the Lease by prior amendment
and shall have no further force or effect, including, without limitation,
Tenant's renewal option contained in Paragraph 6 of the Amendment to Lease
Agreement dated August 23, 1990.
8. Renewal Option. Provided this Lease is then in full force and
effect, that Tenant is not in default under this Lease and has not assigned or
sublet any portion of the Premises either at the time of the exercise of this
renewal option or at the time of the commencement of the Renewal Term, Tenant
shall have the right to renew the Lease for one (1) renewal term of five (5)
years (the "Renewal Term") upon the following terms and conditions:
(a) The option for the Renewal Term shall be exercised in
writing not more than fifteen (15) months and not less than twelve (12) months
prior to the Expiration Date of the Lease Term;
(b) The Base Rental for the Renewal Term shall be the
then-prevailing market rental rate (as of the date of exercise of said option)
on a per square foot basis for the Building for tenants with a 5 year Lease
Term, including any allowances for tenant improvements or other "moving"
concessions to the extent such allowances or concessions are then being offered
by Landlord for the Building. Within ten (10) days after Landlord's receipt of
Tenant's written notice of exercise of this Renewal Option, Landlord shall
notify Tenant of the Base Rental for the Renewal Term. Tenant shall have ten
(10) days after receipt of such notice from Landlord to respond as to whether or
not Tenant desires to rescind its exercise of this Renewal Option. If Tenant
elects to rescind its exercise of this Renewal Option or fails to respond within
such ten (10) day period, then Tenant's notice of exercise of this Renewal
Option shall be deemed rescinded and this Renewal Option shall automatically
terminate and be of no further force or effect. If Tenant elects to exercise
this Renewal Option, the "Base Rental" for the Renewal Term for purposes of
Paragraph 1.1 of the Lease shall be an amount equal to the Base Rental set forth
in Landlord's notice as set forth above and shall be subject to adjustment
pursuant to Paragraph 3 of these Special Stipulations. Except as expressly set
forth to the contrary in this Agreement, all other terms of the Lease, except
for Paragraphs 4, 5, 8 and 9 of these Special Stipulations, thereof shall apply
to the Renewal Term. The "Base Year" with respect to the Renewal Term, for
purposes of Paragraph 1.6(c) of the Lease, shall be the calendar year during
which the Renewal Term commences. Within thirty (30) days after the commencement
of the Renewal Term, Landlord and Tenant shall enter into a written amendment to
this Lease setting forth the new Expiration Date of the Lease and the Base
Rental in effect during the Renewal Term. This Renewal Option is personal to
Tenant and shall become null and void upon the occurrence of an assignment of
this Lease or a sublet of all or any portion of the Premises, either with or
without the consent of Landlord. Further, as a condition to Tenant's right to
exercise this Renewal Option, Tenant shall be in occupancy of all of the
Premises.
9. Right of First Opportunity - 2005. Until March 1, 2005, and provided
the Lease is then in full force and effect and that Tenant is not in default
under the Lease and has not assigned or sublet any portion of the Premises,
either at the time of Tenant's election to lease the First Opportunity Space or
as of the commencement of this Lease as it relates to the First Opportunity
Space, Tenant shall have a right of first opportunity (the "Right of First
Opportunity") to lease all (but not less than all, except as provided in
subparagraph 8(b), below) of the approximately 4,800 rentable square feet on the
6th floor of the Building and all (but not less than all, except as provided in
subparagraph 8(b), below) of the approximately 10,405 rentable square feet on
the 9th floor of the Building, both of which are shown as the "First Opportunity
Space" on Exhibit "B-1" hereto (collectively, the "First Opportunity Space"), in
its then as-is condition, on the following terms and conditions:
(a) Should Landlord, prior to March 1, 2005, receive interest
in leasing all or any portion of the First Opportunity Space on either of the
6th or 9th floors from a bona fide third party prospect, Landlord shall notify
Tenant thereof in writing, which notice shall set forth, as the Base Rental for
such First Opportunity Space, the then-escalated Base Rental rate on a per
square foot basis as then in effect under the Lease with respect to the
Premises, with the same allowance for tenant improvements as provided by
Landlord to Tenant hereunder with respect to the Premises multiplied by a
fraction, the numerator of which is the number of months in the remaining Lease
Term for said First Opportunity Space and the denominator is 84.
(b) Tenant shall have five (5) business days after receipt of
Landlord's notice to respond in writing to Landlord as to whether or not Tenant
desires to lease the entire First Opportunity Space on that floor at the Base
Rental and allowance for tenant improvements stated by Landlord in its written
notice (such written response by Tenant is hereinafter referred to as a "Tenant
Response"). Alternatively, within such five (5) business day period, Tenant may
elect in its Tenant Response to lease a portion of the First Opportunity Space
on that floor at the Base Rental and allowance for tenant improvement stated by
Landlord in its written notice subject, however, to Landlord's determination (in
its sole discretion) that the remainder of the First Opportunity Space on such
floor would be marketable by Landlord to others. Without limiting the generality
of the foregoing, the remainder of the First Opportunity Space on either of the
6th or the 9th floors shall, in any event, contain no less than 3,000 square
feet of rentable area and shall have direct exposure onto the elevator lobby
area on that floor to be considered "marketable". In the event Tenant desires to
lease less than the entire First Opportunity Space on such floor, then Tenant
shall, in its Tenant Response, designate the area of the First Opportunity Space
so desired to be leased by Tenant and Landlord shall then have five (5) business
days after its receipt of the Tenant Response to notify Tenant in writing of its
determination as to whether the remaining portion of the First Opportunity Space
on such floor is marketable. In the event Landlord has determined that such
remaining space is not marketable, then, within three (3) business days after
Tenant's receipt of such determination from Landlord, Tenant shall have the
right to elect in writing to lease all of the First Opportunity Space or to
cancel its prior Tenant Response. If Tenant elects not to lease such First
Opportunity Space, Tenant's Tenant Response is cancelled as hereinabove
provided, or Tenant fails to respond within either of such three (3) day or five
(5) day periods, then this Right of First Opportunity shall automatically
terminate as to such floor and Tenant shall have no further right to lease such
First Opportunity Space on that floor or any portion thereof pursuant to this
Paragraph 8 or Paragraph 9 below; provided, however, that in the event that
Landlord does not lease any portion or portions of such First Opportunity Space
within six (6) months following the end of such five day period, then Tenant
shall again have the Right of First Opportunity as to any subsequent leasing or
offer to lease by Landlord of such unleased portions of such First Opportunity
Space pursuant to the terms herein provided; otherwise Tenant shall have no
further right to lease such First Opportunity Space on that floor or any portion
thereof pursuant to this Paragraph 8 or Paragraph 9 below. In the event Tenant
has elected to lease a portion of such First Opportunity Space as hereinabove
provided and Landlord has determined that the remainder of such First
Opportunity Space on such floor is marketable, then all of the remaining terms
and provisions of this Paragraph 8 shall be applicable to the leasing of such
First Opportunity Space by Tenant and Tenant shall continue to have the right to
lease all (but not less than all) of the remainder of the First Opportunity
Space on such floor pursuant to this Paragraph 8 or Paragraph 9, below, except
that such remaining right shall not include the right to lease a portion of such
remaining space pursuant to this subparagraph 8(b).
(c) If Tenant elects to lease such First Opportunity Space,
the "Base Rental" for such First Opportunity Space, for purposes of Paragraph
1.1 of this Lease, shall be an amount equal to the Base Rental set forth in
Landlord's notice as set forth above, and shall be subject to the annual 1.03
adjustment pursuant to Paragraph 4.2 of this Lease. Base Rental for the First
Opportunity Space shall commence on the earlier to occur of (i) thirty (30) days
after Tenant's notice of election to lease such First Opportunity Space, or (ii)
the date Tenant first occupies such First Opportunity Space. Except as expressly
set forth to the contrary in the Lease, from and after the date Tenant is
required to pay Base Rental hereunder with respect to such First Opportunity
Space, all other terms and conditions of the Lease, except for Paragraphs 4 and
5 of these Special Stipulations, shall apply to such First Opportunity Space and
such First Opportunity Space shall be deemed to be a part of the Premises for
the remainder of the Term of the Lease.
(d) Tenant's right to lease the First Opportunity Space
pursuant to this Paragraph is and shall at all times be subject and subordinate
to the rights of other tenants currently in effect with respect to such space,
whether exercised or unexercised. This Right of First Opportunity is personal to
Tenant and shall become null and void upon the occurrence of an assignment of
this Lease or a sublet of all or any portion of the Premises. Further, as a
condition to Tenant's right to lease the First Opportunity Space, Tenant shall
be in occupancy of all of the Premises.
(e) Within thirty (30) days after the commencement of Base
Rental for all or any portion of the First Opportunity Space as set forth above,
Landlord and Tenant shall enter into a written amendment to this Lease setting
forth the commencement date of Base Rental for such space, the location and
square footage of such space, the annual rent for such space and the increased
"Tenant's Percentage Share" for purposes of Paragraph 1.6(b) of the Lease. The
"Base Year" with respect to all or any portion of the First Opportunity Space,
for purposes of Paragraph 1.6(c) of the Lease, shall be the year 2003.
10. Second Right of First Opportunity - 2007. After March 1, 2005 and
until March 1, 2007, and provided the Lease and this Paragraph 9 are then in
full force and effect and that Tenant is not in default under the Lease and has
not assigned or sublet any portion of the Premises, either at the time of
Tenant's election to lease the First Opportunity Space or as of the commencement
of this Lease as it relates to the First Opportunity Space, Tenant shall have a
right of first opportunity (the "Second Right of First Opportunity") to lease
all (but not less than all, except as provided in subparagraph 9(b), below) of
the First Opportunity Space on either of the 6th or 9th floors, in its then
as-is condition, on the following terms and conditions:
(a) Should Landlord, after March 1, 2005 and prior to March 1,
2007, receive interest in leasing all or any portion of the First Opportunity
Space on either of the 6th or 9th floors from a bona fide third party prospect,
Landlord shall notify Tenant thereof in writing, which notice shall set forth,
as the Base Rental for such First Opportunity Space, the then-prevailing rental
rate on a per square foot basis as then announced by Landlord for the Building,
with such allowance for tenant improvements as are then being provided by
Landlord to other expanding tenants in the Building with space comparable to the
Premises, but reduced (as in subparagraph 8(a), above), to reflect the number of
years remaining in the Lease Term with respect to the First Opportunity Space.
(b) Tenant shall have five (5) business days after receipt of
Landlord's notice to respond as to whether or not Tenant desires to lease the
entire First Opportunity Space on that floor at the Base Rental and allowance
for tenant improvements stated by Landlord in its written notice (such written
response by Tenant is hereinafter referred to as a "Tenant Response").
Alternatively, within such five (5) business day period, Tenant may elect in its
Tenant Response to lease a portion of the First Opportunity Space on that floor
at the Base Rental and allowance for tenant improvements stated by Landlord in
its written notice subject, however, to Landlord's determination (in its sole
discretion) that the remainder of the First Opportunity Space on such floor
would be marketable by Landlord to others. Without limiting the generality of
the foregoing, the remainder of the First Opportunity Space on either of the 6th
or the 9th floors shall, in any event, contain no less than 3,000 square feet of
rentable area and shall have direct exposure onto the elevator lobby area on
that floor to be considered "marketable". In the event Tenant desires to lease
less than the entire First Opportunity Space on such floor, then Tenant shall,
in its Tenant Response, designate the area of the First Opportunity Space so
desired to be leased by Tenant and Landlord shall then have five (5) business
days after its receipt of the Tenant Response to notify Tenant in writing of its
determination as to whether the remaining portion of the First Opportunity Space
on such floor is marketable. In the event Landlord has determined that such
remaining space is not marketable, then, within three (3) business days after
Tenant's receipt of such determination from Landlord, Tenant shall have the
right to elect in writing to lease all of the First Opportunity Space or to
cancel its prior Tenant Response. If Tenant elects not to lease such First
Opportunity Space, Tenant's Tenant Response is cancelled as hereinabove
provided, or Tenant fails to respond within either of such three (3) day or five
(5) day periods, then this Second Right of First Opportunity shall automatically
terminate as to such floor and Tenant shall have no further right to lease such
First Opportunity Space on that floor or any portion thereof; provided, however,
that in the event that Landlord does not lease any portion or portions of such
First Opportunity Space within six (6) months following the end of such five day
period, then Tenant shall again have the Second Right of First Opportunity as to
any subsequent leasing or offer to lease by Landlord of such unleased portions
of such First Opportunity Space pursuant to the terms herein provided; otherwise
Tenant shall have no further right to lease such First Opportunity Space on that
floor or any portion thereof. In the event Tenant has elected to lease a portion
of such First Opportunity Space as hereinabove provided and Landlord has
determined that the remainder of such First Opportunity Space on such floor is
marketable, then all of the remaining terms and provisions of this Paragraph 9
shall be applicable to the leasing of such First Opportunity Space by Tenant and
Tenant shall continue to have the right to lease all (but not less than all) of
the remainder of the First Opportunity Space on such floor pursuant to this
Paragraph 9, below, except that such remaining right shall not include the right
to lease a portion of such remaining space pursuant to this subparagraph 9(b).
(c) If Tenant elects to lease such First Opportunity Space,
the "Base Rental" for such First Opportunity Space, for purposes of Paragraph
1.1 of this Lease, shall be an amount equal to the Base Rental set forth in
Landlord's notice as set forth above, and shall be subject to the annual 1.03
adjustment pursuant to Paragraph 4.2 of this Lease. Base Rental for the First
Opportunity Space shall commence on the earlier to occur of (i) thirty (30) days
after Tenant's notice of election to lease the First Opportunity Space, or (ii)
the date Tenant first occupies such First Opportunity Space. Except as expressly
set forth to the contrary in the Lease, from and after the date Tenant is
required to pay Base Rental hereunder with respect to First Opportunity Space,
all other terms and conditions of the Lease, except for Paragraphs 4 and 5 of
these Special Stipulations, shall apply to such First Opportunity Space and such
First Opportunity Space shall be deemed to be a part of the Premises for the
remainder of the Term of the Lease.
(d) Tenant's right to lease the First Opportunity Space
pursuant to this Paragraph is and shall at all times be subject and subordinate
to the rights of other tenants currently in effect with respect to such space,
whether exercised or unexercised. This Second Right of First Opportunity is
personal to Tenant and shall become null and void upon the occurrence of an
assignment of this Lease or a sublet of all or any portion of the Premises.
Further, as a condition to Tenant's right to lease the First Opportunity Space,
Tenant shall be in occupancy of substantially all of the Premises.
(e) Within thirty (30) days after the commencement of Base
Rental for all or any portion of the First Opportunity Space as set forth above,
Landlord and Tenant shall enter into a written amendment to this Lease setting
forth the commencement date of Base Rental for such space, the location and
square footage of such space, the annual rent for such space and the increased
"Tenant's Percentage Share" for purposes of Paragraph 1.6(b) of the Lease. The
"Base Year" with respect to all or any portion of the First Opportunity Space,
for purposes of Paragraph 1.6(c) of the Lease, shall be the calendar year during
which Base Rental for such space shall commence.
11. Reserved Parking. Tenant shall have the right to use five (5) reserved
parking spaces currently marked on the lower level of the parking deck of
the Building free of charge during the Term of the Lease.
12. Emergency Power Generation. Landlord has installed an emergency power
generation system in the Building to serve the electrical systems of the
tenth and eleventh floors of the Building. Tenant shall have the use of
such emergency power system during the term of the Lease, but such
emergency power system shall remain the property of Landlord. Landlord
shall, in addition, connect the phone switch serving the Premises to the
existing emergency power generation system in the Building.
13. Prior Tenant Improvements. To Landlord's knowledge and belief, the
equipment and other improvements listed herein below ("Prior Tenant
Improvements") were placed on the tenth (10th) floor of Premises by a prior
tenant, and Landlord agrees that said Prior Tenant Improvements shall
remain with the Premises for the term of this Lease and shall not be
removed by Landlord except as so indicated below:
(a) Computer Room Air Conditioner shall remain:
(i) the main unit is a Data-floor-mounted unit that has a
120,000 BTU rating which is ventilated through the
raised floor. Specifications have been furnished to
Tenant;
(ii) a roof-top compressor;
(iii) an additional 3-ton unit is installed above the
ceiling and below the deck;
(iv) Halon system to remain; canister has been removed by
Landlord;
(b) Glass Entry Doors; These doors will be replaced by
Landlord with double-glass entry doors with handles similar
to those used on the entries of Harris, Hutchings, Fritz
and Associates on the 3rd Floor and Hospital
Corporation of America on the 6th Floor.
(c) Intercom System: wiring to remain; intercom system has been
removed by Landlord;
(d) Raised Floor; Will remain.
(e) Wire Runs: Computer and telephone wires to remain;
telephone wiring to remain and to be dead ended by Landlord
at the computer room.
14. Signage. Landlord shall continue to include Tenant's name on a monument
sign which Landlord has constructed in front of the Building. Said monument
signage rights are personal to Tenant and may not be assigned and shall
automatically terminate upon any assignment of this Lease or at such time as
Tenant shall have subleased 50% or more of the New Space. Provided Tenant is not
in default under the Lease, Landlord shall provide (upon Tenant's request,
provided such request is submitted to Landlord, in writing, within the first six
(6) months following the Effective Date), at Landlord's expense, in a location
determined by Landlord (but, in any event, at or near the top of the Building
and visible from I-75), non-exclusive building signage identifying Tenant's
name. It shall be a condition to Landlord's obligation to provide such signage
that such signage meet all applicable governmental rules, codes and regulations.
Such signage shall be consistent with Parkway Center's signage requirements and
shall be subject to Landlord's prior approval as to size, design and other
features. Landlord shall have the right, at its expense, to relocate such
building signage from time to time. The aforesaid building signage rights are
personal to Tenant and may not be assigned and shall automatically terminate
upon any assignment of this Lease, at such time as Tenant shall have subleased
25% or more of the New Space, or upon the occurrence of an event of default
under the Lease. Upon expiration of any of the aforesaid building signage
rights, Landlord shall have the right to remove such sign(s) at Tenant's
expense.
15. Impairment of Use Notwithstanding any provision contained in this Lease
to the contrary, if any essential utilities or services Landlord provides to
Tenant under the Lease are interrupted, and such interruption is within the
reasonable control of Landlord, and such interruption continues for seven (7)
consecutive business days after written notice of such interruption is given by
Tenant to Landlord, and provided that such interruption is not the result of an
act or omission of Tenant, its agents, contractors or employees or the act or
omission of any public or private utility company, and if Tenant is unable
(based upon reasonable commercial standards) to operate its business in the
Premises, or any portion thereof, as a result of such interruption, then Tenant
shall be entitled to an abatement of its obligations to make payments of Rent
commencing on the eighth (8th) business day after such interruption and
continuing until such time as the interruption ceases. Such abatement shall be
in proportion to the amount of the Premises that are unusable by Tenant after
such eighth (8th) business day. If such interruption within the reasonable
control of Landlord shall continue for one hundred twenty (120) consecutive days
and shall render unusable at least 50% of the Premises, Tenant may elect to
terminate this Lease upon ten (10) days notice to Landlord; provided, however,
that the election to termination shall be of no force and effect if prior to the
expiration of said ten (10) day period the cause of such interruption shall have
been removed by Landlord.
"Tenant"
MATRIA HEALTHCARE, INC., a Delaware corporation
By:
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Print Name:
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Title:
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Date:
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Attest:
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Name:
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Title:
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Date:
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[CORPORATE SEAL]
"Landlord"
ATLANTA PARKWAY INVESTMENT GROUP,
INC., a Delaware corporation
By:
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Paul C. Chapman, Executive Vice President
Date:
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SPECIAL STIPULATIONS
Exhibit "A-1"
New Space
SPECIAL STIPULATIONS
Exhibit "B-1"
First Opportunity Space