Exhibit 10.16 Lease agreement effective October, 1998 between the Company
and 485 Properties LLC, relating to premises at Five Concourse Parkway,
Atlanta, Georgia.
LEASE AGREEMENT
CONCOURSE
ATLANTA, GEORGIA
LANDLORD: 485 PROPERTIES, LLC
TENANT: DELPHI INFORMATION SYSTEMS
BUILDING: CORPORATE CENTER V
SUITE: 3200
SQ. FT.: 6,694 RENTABLE SQUARE FEET
TERM: FIVE (5) YEARS
LEASE AGREEMENT
CONCOURSE
THIS LEASE AGREEMENT (the "Lease"), made this _____ day of October, 1998,
by and between 485 PROPERTIES, LLC ("Landlord"), a Delaware limited liability
company, which has as its address for all purposes hereunder as follows:
485 Properties, LLC
c/o TC Atlanta, Inc.
Five Concourse Parkway
Suite 2000
Atlanta, Georgia 30328-6111
and DELPHI INFORMATION SYSTEMS ("Tenant"), a corporation of the State of
Delaware, which has as its address:
Five Concourse Parkway
Suite 3200
Atlanta, Georgia 30328
WITNESSETH:
1. PREMISES AND TERM
(a) Landlord hereby rents and leases to Tenant, and Tenant hereby
rents and leases from Landlord, the following described space (the "Premises"):
Floor: 32nd
Suite: 3200
Rentable Square Feet: 6,694
Usable Square Feet: 5,820
located at the herein called "Building":
Building: Corporate Center V
Address: Five Concourse Parkway
Fulton County, Georgia
Total Building Rentable Area: 687,107
(b) The Premises are more particularly shown and outlined on the
space plans attached hereto as EXHIBIT "A", and made a part hereof, and are
located in that portion of the Building shown on EXHIBIT "B", attached hereto
and by this reference incorporated herein. The term of this Lease (the "Term")
shall commence on the 30th day after the date that the Lease has been executed
by both the parties hereto (the "Commencement Date"), and end at midnight on the
day immediately prior to the fifth (5th) anniversary of the Commencement Date,
unless sooner terminated as herein provided. This
Lease shall be effective and enforceable upon its execution and delivery,
whether such execution and delivery occurs on, prior to, or after the
Commencement Date.
(c) "Lease Year" as used herein shall mean (i) each and every twelve
(12) month period during the Term of this Lease, or (ii) in the event of Lease
expiration or termination, the period between the last twelve (12) month period
and said expiration or termination. The first such twelve (12) month period
shall commence on the Commencement Date.
(d) The Building and the land upon which said Building is located
(which includes certain parking facilities serving the Building), more
particularly described on EXHIBIT "C", attached hereto and by this reference
incorporated herein, is herein referred to as the "Property".
(e) The Premises shall include the appurtenant right to use, in
common with others, public lobbies, entrances, stairs, corridors, elevators, and
other public portions of the Building. All the windows and outside walls of the
Premises, and any space in the Premises used for shafts, pipes, conduits, ducts,
telephone ducts and equipment, electric or other utilities, sinks or other
Building facilities, and the use thereof and access thereto through the Premises
for the purposes of operation, maintenance, inspection, display and repairs are
hereby reserved to Landlord. No easement for light, air or view is granted or
implied hereunder, and the reduction or elimination of Tenant's light, air or
view will not affect this Lease.
2. RENT
(a) Tenant shall pay to Landlord at P.O. Box 102353, Atlanta, Georgia
30368-0353 or at such other place Landlord designates, without demand, deduction
or setoff, an annual rental for each year of the Term, due and payable in equal
monthly installments (the "Monthly Rental") in advance on the first (1st) day of
each calendar month during the Term as follows:
LEASE BASE RENTAL RATE (PER RENTABLE
YEAR SQUARE FOOT PER ANNUM) ANNUAL RENTAL MONTHLY RENTAL
----- ------------------------------- ------------- --------------
1 $31.00 $207,514.00 $17,292.83
2 $31.93 $213,739.42 $17,811.62
3 $32.89 $220,165.66 $18,347.14
4 $33.88 $226,792.72 $18,899.39
5 $34.90 $233,620.60 $19,468.38
Tenant shall pay the first month of the Monthly Rental for Lease Year 1 upon the
execution and delivery of this Lease (with said amount to be applied against the
Monthly Rental first due under the Lease).
(b) If the Term commences at any time other than the first day of a
month or terminates at any time other than the last day of a month, the amount
of Rent due from Tenant shall be proportionately adjusted based on that portion
of the month that this Lease is in effect.
(c) The term "Rent", as used herein, shall mean Monthly Rental,
"Tenant's Share" of "Operating Costs" (as those terms are defined herein) and
any other amounts due of Tenant hereunder.
(d) At all times that Landlord shall direct Tenant to pay Rent to a
"lockbox" or other depository whereby checks issued in payment of Rent are
initially cashed or deposited by a person or entity other than Landlord (albeit
on Landlord's authority), then, for any and all purposes under this Lease:
(i) Landlord shall not be deemed to have accepted such payment until ten (10)
days after the date on which Landlord shall have actually received such funds
(provided that Tenant shall not be in default of Tenant's obligation to pay Rent
so long as Tenant shall pay Rent in the manner provided in Paragraph 2(a)
hereinabove), and (ii) Landlord shall be deemed to have accepted such payment if
(and only if) within said ten (10) day period, Landlord shall not have refunded
(or attempted to refund) such payment to Tenant.
3. OPERATING COSTS
(a) Tenant hereby covenants and agrees and shall be obligated to pay
to Landlord, in addition to and not in lieu of the other amounts specified
herein, the "Operating Costs," as hereinafter defined, of repairing,
maintaining, owning and operating the Building and Property, in excess of the
"Initial Operating Costs" (as that term is herein defined). These payments
shall be in addition to and not in lieu of any other payments due from Tenant
hereunder. The "Initial Operating Costs" shall be, for the purposes of this
Lease, the actual Operating Costs for calendar year 1999, adjusted pursuant to
the terms of this Lease.
(b) The term "Operating Costs", as adjusted pursuant to the terms of
this Lease, shall mean any and all operating expenses of the Property, Building
and related areas (such as, by way of illustration but not limitation, the
parking areas), computed on an accrual basis and including all expenses, costs,
and disbursements of every kind and nature, which Landlord (i) shall pay; and/or
(ii) become obligated to pay, including, but not limited to, the following:
(i) Costs, wages and salaries of all persons engaged in the
management, operation, repair, security or maintenance of the
Property and Building, including, but not limited to, fringe
benefits, taxes, insurance and any other benefits relating
thereto;
(ii) All supplies and materials used in the operation and maintenance
of the Property and Building;
(iii) Cost of water, sewage, electricity and other utilities furnished
in connection with the operation of the Building;
(iv) Cost of all service agreements and maintenance for the Property
and Building and the equipment therein, including, but not
limited to, trash removal, security services, alarm services,
window cleaning, janitorial service, HVAC maintenance, elevator
maintenance, and grounds maintenance;
(v) Cost of all insurance relating to the Property and Building
including, but not limited to, the cost of casualty and liability
insurance applicable to the Property and Building and Landlord's
personal property used in connection therewith;
(vi) All taxes (ad valorem and otherwise), assessments, and
governmental charges whether federal, state, county, or
municipal, and whether by taxing districts or authorities
presently taxing the Property and Building or by others,
subsequently
created or otherwise, and any other taxes (other than federal and
state income taxes), and assessments attributable to the Property
and Building or its operation and any reasonable consultants fees
incurred with respect to issues or concerns involving the taxes
or the Building, the Property, or both;
(vii) Cost of repairs and general maintenance of the interior and
exterior of the Property and Building (including, but not limited
to, light bulbs and glass breakage; the redecorating, repainting,
recarpeting and other such work of any common areas; heating,
ventilation and air conditioning equipment; plumbing and
electrical equipment; and elevators), parking areas, and
landscaping;
(viii) A management fee and other expenses incurred for the general
operation and management of the Property and Building;
(ix) An amortization cost due to any capital expenditures incurred (i)
which have the effect of reducing or limiting Operating Costs of
the Property and Building, if such reduction or limitation inures
to Tenant's benefit (but only to the extent and in the amount
that such Operating Costs of the Property and Building are
reduced); (ii) which may be required by governmental authority or
by Landlord's insurance carrier; or (iii) which are designed to
protect or enhance the health, safety or welfare of the tenants
in the Building or their invitees.
(x) all assessments made, charged, levied, assessed or accrued
against Landlord by The Concourse Office Park Association, Inc.;
(xi) legal and accounting fees and expenses;
(xi) anything which could be classified as an Operating Cost under
generally accepted accounting principles, consistently applied,
but not specified or expressly set forth hereunder.
Excluded from "Operating Costs" are:
(i) Capital items (except those expenditures referred to above);
(ii) Leasing commissions;
(iii) Specific costs billed to and paid by specific tenants or other
third parties;
(iv) Depreciation;
(v) Principal, interest, and other costs directly related to
financing the Building;
(vi) The cost of any repairs or general maintenance paid by the
proceeds of insurance policies carried by Landlord on the
Property and Building;
(vii) Costs of advertising and public relations and promotional costs
(but not including the cost of newsletters for the Building;
(viii) Attorney's fees associated with leasing of the Building;
(ix) Any fines or penalties incurred due to the intentional violation
by Landlord of any governmental authority;
(x) Costs of management fees in excess of customary fees charged by
managers of similar quality and reputation in similar sized first
class office buildings in the Atlanta Northeast perimeter area;
(xi) Costs, fines, interest, penalties, legal fees or costs of
litigation incurred due to late payment of taxes, utility bills
and other costs incurred as a result of Landlord's failure to
make such payments when due; and
(xii) Salaries and wages and other benefits paid by or on behalf of
employees above the level of the Director of the Property
Managers of the Building.
(c) The term "Tenant's Share" shall mean the proportion that the
Square Feet in the Premises bears to ninety-five percent (95%) of the Total
Building Rentable Area, or the average percentage of the Total Building Rentable
Area actually leased in the Building for any calendar year, if such average is
greater than ninety-five percent (95%) of the Total Building Rentable Area. The
average shall be determined by adding together the total leased space on the
last day of each month during the calendar year in question and dividing by
twelve (12). Tenant's Share is used in this Lease to determine the portion of
Operating Costs payable by Tenant, on a per square foot per annum basis.
Notwithstanding anything to the contrary contained herein, if the Building is
not fully occupied during any calendar year, appropriate adjustments shall be
made to determine Operating Costs as though the Building had been fully occupied
in such calendar year for the entire calendar year.
(d) On January 15 of each calendar year after the calendar year in
which this Lease is executed (or as soon thereafter as practical), Landlord
shall provide Tenant with the projected Operating Costs for such current
calendar year, and Tenant shall thereafter pay Tenant's Share of projected
Operating Costs for operating the Property and Building in excess of the Initial
Operating Costs. Such projected Operating Costs in excess of the Initial
Operating Costs shall be payable in advance on a monthly basis by paying
one-twelfth (1/12th) of such amount during each month of such respective
calendar year. If Landlord has not furnished Tenant such comparison by January
15, Tenant shall continue to pay on the basis of the prior year's estimate until
the month after such comparison is given. Landlord shall, within one hundred
twenty (120) days (or as soon thereafter as practical) after each calendar year
during the Term provide Tenant an unaudited statement of such year's actual
Operating Costs. If actual Operating Costs are greater than projected Operating
Costs, Tenant shall pay Landlord, within thirty (30) days of such statement's
receipt, Tenant's Share of the difference thereof. If such year's projected
Operating Costs are greater than the actual Operating Costs, Landlord shall
credit Tenant, within thirty (30) days of such statement issuance, Tenant's
Share of the difference between projected Operating Costs and actual Operating
Costs.
(e) Tenant or its representative (which shall be an accounting firm
among the top 10 nationally in gross revenues) shall have the right to examine
Landlord's books and records showing Operating Costs upon reasonable prior
notice and during normal business hours at any time within sixty (60) days
following the furnishing by Landlord to Tenant of any final invoice or
reconciliation statement for any given year. Any information obtained by Tenant
and its auditors and examiners from such examination will be treated as
confidential unless and until such information
has been publicly disclosed by Landlord, and Tenant shall execute and cause its
outside auditor or examiner to execute such confidentiality agreement as
Landlord shall request, to reflect and effectuate the confidentiality provisions
of this Paragraph. However, nothing herein contained shall limit or impair the
right or obligation of Tenant to disclose such information when required by law
or to appropriate regulatory authorities having jurisdiction over its affairs,
or to use the same in connection with the enforcement of the terms and
conditions of this Lease. Unless Tenant takes written exception to any item
within sixty (60) days after the furnishing of Landlord's invoice or statements,
then such invoices or statements shall be considered as final and accepted by
Tenant. Tenant shall furnish Landlord with a copy of all information and
material generated for or on behalf of Tenant with respect to such audit,
whether or not Tenant disputes the calculations or charges from Landlord. If
Tenant does dispute such charges, then Tenant shall submit to Landlord, as a
part of the notice of such dispute, a precise and detailed narrative account of
the exact nature of the dispute, with specific reference to the differences
found by Tenant. Such statement shall be certified as true, correct and
accurate by the auditor or examiner making such findings. If Tenant's audit
reveals an underpayment of Operating Costs by Tenant, then Tenant shall pay the
same within thity (30) days after receipt of the audit results. If the total
Operating Costs as disclosed by such audit are finally determined to have been
overstated by five percent (5%) or more, Landlord shall promptly reimburse or
credit Tenant for the reasonable, actual costs of such audit (based upon the
hourly charges of the personnel involved in the audit, and not any contingency
payment), in addition to refunding all overpayments previously made by Tenant.
(f) If this Lease commences at any time other than the first day of a
calendar year or terminates at any time other than the last day of a calendar
year the amount of Operating Costs due from Tenant shall be proportionately
adjusted based on that portion of the year that this Lease was in effect.
(g) Tenant's payments of Operating Costs shall not be deemed payments
of base rental under any governmental wage and price controls or analogous
governmental actions affecting the amount of Rent which Landlord may charge
Tenant for the Premises.
4. DELIVERY OF THE PREMISES
(a) Landlord shall deliver possession of the Premises to Tenant "as
is, where is." Certain work may take place in the Premises in accordance with
EXHIBIT "D", attached hereto and by this reference incorporated herein, while
Tenant is in occupancy of the Premises. Landlord shall use its reasonable
efforts to cause such work to be conducted in a manner that causes the least
amount of disruption to and interference with Tenant's operations in the
Premises. However, Tenant shall have no claim or cause of action whatsoever for
interference or nuisance related to or arising out of such work in the Premises.
Tenant shall cooperate with Landlord in the completion of such work in the
Premises.
(b) If within nine (9) months of the Commencement Date Tenant shall
discover any latent defects in the Premises, Tenant shall provide Landlord with
notice of such latent defect prior to the expiration of such nine (9) month
period. Landlord shall promptly repair or restore any such latent defects of
which it receives timely notice. Landlord shall not have any obligation to
repair latent defects of which Tenant has given Landlord notice after this nine
month period.
5. ACCEPTANCE OF THE PREMISES
The taking of possession of the Premises by Tenant shall be conclusive
evidence that Tenant accepts the same "as is" and that said Premises and the
Building were in good and satisfactory condition for the use intended at the
time such possession was taken, except for latent defects as described in
Section 4 hereof.
6. USE
Tenant shall use the Premises only for professional, executive office
purposes, generally in accordance with the manner of use by other tenants in the
Building. The occupancy rate of the Premises shall in no event be more than one
(1) person per 200 rentable square feet within said Premises. Tenant's use of
the Premises shall not violate any ordinance, law or regulation of any
governmental body or the "Rules and Regulations" of Landlord (the "Rules") as
set forth in EXHIBIT "F" attached hereto and made a part hereof, or cause an
unreasonable amount of use of any of the services provided in the Building.
Tenant shall conduct its business in the manner and according to the generally
accepted business principles of the business or profession in which Tenant is
engaged.
7. TENANT'S CARE OF THE PREMISES
(a) Tenant will maintain the Premises and the fixtures and
appurtenances therein in a first-class condition, and will not commit or permit
waste therein. Any repair work, maintenance and any alterations permitted by
Landlord in the Premises (i) shall be done at Tenant's sole cost and expense;
(ii) shall be done by Landlord's employees or agents or, with Landlord's
consent, by persons requested by Tenant; and (iii) shall first be consented to
by Landlord, such consent not to be unreasonably withheld. Tenant shall, at
Tenant's expense, but under the direction of Landlord and performed by
Landlord's employees or agents, or with Landlord's consent, by persons requested
by Tenant and consented to by Landlord, promptly repair any injury or damage to
the Premises or Building caused by the misuse or neglect thereof by Tenant, by
Tenant's contractors, sub-contractors, customers, employees, licensees, agents,
or invitees.
(b) Tenant will not, without Landlord's prior consent, make
alterations, additions or improvements (including, but not limited to,
structural alterations, additions or improvements) in or about the Premises and
will not do anything to or on the Premises which will increase the rate of
insurance on the Building or the Property. All alterations, additions or
improvements of a permanent nature made or installed by Tenant to the Premises
shall become the property of Landlord at the expiration or early termination of
this Lease. Landlord reserves the right to require Tenant to remove any
improvements or additions made to the Premises by Tenant and to repair and
restore the Premises to their condition prior to such alteration, addition or
improvement, reasonable wear and tear, unrepaired casualty and condemnation
excepted, unless Landlord has agreed at or prior to the time Tenant requests the
right to make such alteration, addition or improvement that such item need not
be removed by Tenant at the expiration or early termination of the Term.
(c) No later than the last day of the Term, Tenant will remove
Tenant's personal property and repair injury done by or in connection with
installation or removal of said property and surrender the Premises (together
with all keys, access cards or entrance passes to the Premises and/or the
Building) in as good a condition at the beginning of the Term, reasonable wear
and tear, unrepaired casualty and condemnation excepted. All property of Tenant
remaining in the Premises after expiration or early termination of the Term
shall be deemed conclusively abandoned and may be removed by Landlord, and
Tenant shall reimburse Landlord for the cost of removing the same, subject
however, to
Landlord's right to require Tenant to remove any improvements or additions made
to the Premises by Tenant pursuant to the preceding Paragraph.
(d) In doing any work on the installation of Tenant's furnishings,
fixtures, or equipment in the Premises, Tenant will use only contractors or
workers consented to by Landlord prior to the time such work is commenced.
Landlord may condition its consent upon its receipt from such contractors or
workers of acceptable (i) lien waivers; and (ii) evidence of liability and
personal property insurance coverage in amounts and with insurance carriers
satisfactory to Landlord. Tenant shall promptly remove any lien or claim of
lien for material or labor claimed against the Premises or Building, or both, by
such contractors or workers if such claim should arise, and hereby indemnifies
and holds Landlord harmless from and against any and all loss, cost, damage,
expense or liabilities including, but not limited to, attorney's fees, incurred
by Landlord, as a result of or in any way related to such claims or liens.
(e) All personal property brought into the Premises by Tenant, its
employees, licensees and invitees shall be at the sole risk of Tenant, and
Landlord shall not be liable for theft thereof or of money deposited therein or
for any damages thereto, such theft or damage being the sole responsibility of
Tenant.
8. SERVICES
(a) Provided Tenant is in compliance with the terms and conditions of
this Lease, Landlord shall cause to be furnished the following services at
levels consistent with the level of other first class office buildings in the
area of the Building (the cost of which services shall be reimbursed to Landlord
in accordance with Paragraph 3 herein):
(i) Elevator service for passenger and delivery needs.
(ii) Air conditioning during summer operations and heat during winter
operations at temperature levels similar to other first class
office buildings in the Atlanta area, but consistent with and
subject to all Federal and local energy conservation regulations.
(iii) Public restrooms, including the furnishing of soap, paper towels,
and toilet tissue.
(iv) Either hot and cold or tempered running water for all restrooms
and lavatories.
(v) Janitorial service, including sanitizing, dusting, cleaning,
mopping, vacuuming, and trash removal, each Monday through
Friday, and floor waxing and polishing, window washing, smudge
removal and venetian blind cleaning as appropriate.
(vi) The replacement of building standard fluorescent lamps and
ballasts as needed.
(vii) Repairs and maintenance, for maintaining in good order at all
times the exterior walls, exterior windows, exterior doors and
roof of the Building, public corridors, stairs, elevators,
storage rooms, restrooms, the heating, ventilating and air
conditioning systems, electrical and plumbing systems of the
Building, and the walks, paving and landscaping surrounding the
Building.
(viii) General grounds care.
(ix) General management, including supervision, inspections and
management functions.
(x) Electricity for the Premises, Building and Property.
(b) The services provided in Paragraph 8(a) are predicated on and are
in anticipation of the use of the Premises as follows:
(i) Services shall be provided for the Building during normal
business hours as described in the Rules.
(ii) HVAC design is based on sustained outside temperatures being no
higher than 95 degrees Fahrenheit and no lower than 14 degrees
Fahrenheit with sustained occupancy of the Premises by no more
than one person per 150 square feet of floor area and heat
generated by electrical lighting and fixtures not to exceed 3.0
watts per square foot.
(iii) Electric power usage and consumption for the Premises shall be
based on lighting of the Premises during normal business hours on
a level suitable for normal office use and power for small
desk-top machines and devices using no more than 110 volt, 20 amp
circuits (allowable load of 15 amps). Heavier use items shall
not be used or installed, unless expressly permitted elsewhere
herein or by consent of Landlord.
(iv) Should Tenant's total rated electrical design load per square
foot in the Premises exceed the Building standard rated
electrical design load, on a per square foot basis, as determined
by Landlord from time to time, for either low or high voltage
electrical consumption, or if Tenant's electrical design requires
low voltage or high voltage circuits in excess of Tenant's share
of the Building standard circuits, as such share is determined by
Landlord in Landlord's reasonable judgment, Landlord may (at
Tenant's expense), if reasonably possible, install within the
Building one (1) additional high voltage panel and/or one (1)
additional low voltage panel with associated transformer (the
"Additional Electrical Equipment") as necessary to accommodate
the aforesaid requirements. If the Additional Electrical
Equipment is installed because Tenant's low or high voltage rated
electrical design load exceeds the applicable Building standard
rated electrical design load (on a per square foot basis), then a
meter may also be added by Landlord (at Tenant's expense) to
measure the electricity provided through the Additional
Electrical Equipment.
(c) If Tenant uses any services in an amount or for a period in
excess of that provided for herein, Landlord also reserves the right to charge
Tenant reimbursement for the cost of such added services. Landlord reserves the
right to install separate metering devices to determine such excessive periods
and/or amounts, at Tenant's sole cost and expense. If there is disagreement as
to such additional charge, the opinion of the appropriate local utility company
or an independent professional engineering firm shall prevail.
(d) Landlord shall not be liable for any damages directly or
indirectly, and Tenant shall have no right of set-off or reduction in Rent,
resulting from the installation, use, malfunction, or interruption of use of any
equipment in connection with the furnishing of services referred to herein,
including, but not limited to, any interruption in services by any cause beyond
the immediate control of the Landlord, except as expressly set forth in
Paragraph 8(e) below; provided however, Landlord shall exercise due care in
furnishing adequate and uninterrupted services. Without limitation on the
foregoing, under no circumstances shall Landlord incur liability for damages
caused directly or indirectly by any malfunction of Tenant's computer systems
resulting from or arising out of the failure or malfunction of any electrical,
air conditioning or other system serving the Building, and Tenant hereby
expressly waives the right to make any such claim against Landlord.
(e) If for any reason services to the Premises provided by, through
or under Landlord are interrupted, such interruption of services is of a nature
that it materially interferes with Tenant's use, occupancy and enjoyment of the
Premises, and the provision of such service (and the interruption thereof) is
within the reasonable control of Landlord, then Tenant shall hand-deliver notice
of such interruption to Landlord. If such interruption lasts in excess of five
(5) consecutive business days after Landlord has received notice of such
interruption, Tenant may abate payments of its Monthly Rental after said fifth
(5th) consecutive business day after Landlord has received notice of such
interruption until such service is once again provided to the Premises in a
manner which permits Tenant to use the Premises or a material portion thereof.
(f) There may be available in the Building a shared communications
systems service (the "Shared Service"), upon terms, conditions and fees to be
agreed upon by Tenant and the party providing such Shared Service. Neither
Landlord nor any manager of the Building shall be liable to Tenant for damages
if the furnishing of any such Shared Service is disrupted, terminated or
diminished in any manner, nor shall any disruption, diminution, or cessation
relieve Tenant from the performance of any of Tenant's covenants, conditions and
agreements under this Lease, nor shall any disruption, diminution or cessation
constitute constructive eviction or entitle Tenant to an abatement of Rent.
Tenant holds Landlord and any such manager harmless from any claims Tenant may
have arising out of or connected with such cessation or interruption. If Tenant
elects not to use the Shared Service, and Tenant has telephone or other such
equipment installed at Tenant's own direction, such system shall not (i) cause
the Building to violate any municipal safety codes or ordinances, including, but
not limited to, fire safety codes; (ii) cause damage to the Building;
(iii) require an amount of electrical or other services unreasonably in excess
of the requirements for customary business-telephone systems; or (iv) impact
upon the normal use, function and operation of the Shared Service. If Tenant
elects not to use or be a part of the Shared Service, Tenant shall not use any
wiring or other equipment which is a part of the Shared Service without the
prior, written consent of the provider of such Shared Service. If Tenant uses
any such wiring or equipment without such consent, Tenant shall be liable for,
and shall pay to the provider of such services on demand, (i) the cost of such
use; (ii) the cost of repairing or replacing any wiring or equipment damaged or
altered by such use; and (iii) any other damages caused by such use.
9. DESTRUCTION OR DAMAGE TO PREMISES
(a) If the Premises or the Building are totally destroyed (or so
substantially damaged as to be untenantable in the reasonable determination of
the Architect of the Building) by storm, fire, earthquake or other casualty,
Landlord shall have the option to:
(i) Terminate this Lease as of the date of the occurrence of the
storm, earthquake, fire or other casualty by giving notice to
Tenant within sixty (60) days from the date of such damage or
destruction; or
(ii) Commence the process of restoration of the Premises to a
tenantable condition within sixty (60) days from the date of
receipt by Landlord of all of the insurance proceeds paid with
respect to such casualty, and proceed with due diligence to
complete said restoration of the Premises. If Landlord chooses
to restore the Premises, Rent shall abate with respect to the
untenantable portion of the Premises from the date of such
casualty until the date of substantial restoration thereof.
If Landlord fails to complete such restoration within one hundred eighty (180)
days of the date of the casualty, this Lease may be terminated as of the date of
the casualty upon notice from either party to the other, given not more than ten
(10) days following the expiration of said one hundred eighty (180) day period.
If such notice is not given, this Lease shall remain in force and effect and
Rent shall commence upon delivery of the Premises to Tenant in a tenantable
condition (evidenced by notice to Tenant that the Premises are substantially
completed). If damage or destruction of a material nature occurs to the
Premises within twelve (12) months of the expiration of the Term, Tenant may, at
its option upon written notice to Landlord within thirty (30) days after such
damage or destruction, terminate this Lease as of the date of the damage or
destruction.
(b) If the Premises are damaged but not rendered wholly untenantable
by any event set forth in Paragraph 9(a) above, Rent shall abate in the
proportion the Premises have been made untenantable. Landlord shall restore the
Premises expeditiously, and upon the date of restoration, full Rent shall
commence.
(c) Rent shall not abate if the damage or destruction of the
Premises, whether total or partial, is the result of the negligence of Tenant,
its contractors, subcontractors, agents, employees, guests or invitees.
10. DEFAULT BY TENANT; LANDLORD'S REMEDIES
(a) The occurrence of any of the following shall constitute an Event
of Default hereunder by Tenant:
(i) The Rent or any other sum of money due of Tenant hereunder is not
paid within five (5) days of the date notice of such late payment
is received by Tenant; provided, however, if more than two (2)
payments due of Tenant hereunder in any one (1) calendar year are
not made until after notice of such late payment is received by
Tenant, then it shall be an event of default hereunder by Tenant
if any subsequent payment due of Tenant hereunder in the same
calendar year is not made within ten (10) days of the date when
due.
(ii) The Premises are abandoned or vacated;
(iii) Any petition is filed by or against Tenant under any section or
chapter of the National or Federal Bankruptcy Act or any other
applicable Federal or State bankruptcy, insolvency or other
similar law, and, in the case of a petition filed against Tenant,
such petition is not dismissed within sixty (60) days after the
date of such filing; if Tenant shall become insolvent or transfer
property to defraud
creditors; if Tenant shall make an assignment for the benefit
of creditors; or if receiver is appointed for any of Tenant's
assets;
(iv) Tenant fails to bond off or otherwise remove any lien filed
against the Premises or the Building by reason of Tenant's
actions, within thirty (30) days after Tenant has notice of the
filing of such lien;
(v) Tenant fails to observe, perform and keep the covenants,
agreements, provisions, stipulations, conditions and Rules herein
contained to be observed, performed and kept by Tenant (other
than the failure to pay when due any Rent or any other sum of
money becoming due Landlord hereunder, which under all
circumstances is governed by and subject to Paragraph 10(a)(i)
herein), and persists in such failure after fifteen (15) days
written notice by Landlord requiring that Tenant remedy, correct,
desist or comply (or if any such failure to comply on the part of
Tenant would reasonably require more than fifteen (15) days to
rectify, unless Tenant commences rectification within the fifteen
(15) day notice period and thereafter promptly, effectively and
continuously proceeds with the rectification of the failure to
comply on the part of Tenant and, in all such events, cures such
failure to comply on the part of Tenant no later than thirty (30)
days after such notice).
(b) Upon the occurrence of an Event of Default, Landlord shall have
the option to do and perform any one or more of the following:
(i) Terminate this Lease, in which event Tenant shall immediately
surrender the Premises to Landlord. If Tenant shall fail to do
so, Landlord may, without further notice and without prejudice to
any other remedy Landlord may have, enter upon the Premises
without the requirement of resorting to the dispossessory
procedures set forth in O.C.G.A. Sections 44-7-50 ET SEQ. and
expel or remove Tenant and Tenant's effects without being liable
for any claim for trespass or damages therefor. Upon any such
termination, Tenant shall remain liable to Landlord for damages,
due and payable monthly on the day Rent would have been payable
hereunder, in an amount equal to the Rent and any other amounts
which would have been owing by Tenant for the balance of the
Term, had this Lease not been terminated, less the net proceeds,
if any, of any reletting of the Premises by Landlord, after
deducting all of Landlord's reasonable costs and expenses
(including, without limitation, advertising expenses and
professional fees) actually incurred in connection with or in any
way related to the termination of this Lease, eviction of Tenant
and such reletting; and/or
(ii) Declare the entire amount of Rent calculated on the current rate
being paid by Tenant, and other sums which in Landlord's
reasonable determination would become due and payable during the
remainder of the Term (including, but not limited to, increases
in Rent pursuant to Paragraph 2(a) and 3(d) herein), discounted
to present value by using a reasonable discount rate selected by
Landlord, to be due and payable immediately. Upon such
acceleration of such amounts, Tenant agrees to pay the same at
once, together with all Rent and other amounts theretofore due,
at Landlord's address as provided herein; provided however, that
such payment shall not constitute a penalty or forfeiture but
shall constitute liquidated damages for Tenant's failure to
comply with the terms and
provisions of this Lease (Landlord and Tenant agreeing that
Landlord's actual damages in such event are impossible to
ascertain and that the amount set forth above is a reasonable
estimate thereof). Upon making such payment, Tenant shall
receive from Landlord all rents received by Landlord from other
tenants renting the Premises during the Term, provided that the
monies to which Tenant shall so become entitled shall in no event
exceed the entire amount actually paid by Tenant to Landlord
pursuant to the preceding sentence, less all of Landlord's
reasonable costs and expenses (including, without limitation,
advertising expenses and professional fees) actually incurred in
connection with or in any way related to the reletting of the
Premises. The acceptance of such payment by Landlord shall not
constitute a waiver of rights or remedies to Landlord for any
failure of Tenant thereafter occurring to comply with any term,
provision, condition or covenant of this Lease; and/or
(iii) Enter the Premises as the agent of Tenant without the requirement
of resorting to the dispossessory procedures set forth in
O.C.G.A. Sections 44-7-50 ET SEQ. and without being liable for
any claim for trespass or damages therefor, and, in connection
therewith, rekey the Premises, remove Tenant's effects therefrom
and store the same at Tenant's expense, without being liable for
any damage thereto, and relet the Premises as the agent of
Tenant, without advertisement, by private negotiations, for any
term Landlord deems proper, and receive the rent therefor.
Tenant shall pay Landlord on demand any deficiency that may arise
by reason of such reletting, but Tenant shall not be entitled to
any surplus so arising. Tenant shall reimburse Landlord for all
reasonable costs and expenses (including, without limitation,
advertising expenses and professional fees) actually incurred in
connection with or in any way related to the eviction of Tenant
and reletting the Premises, and for the amount of any other Rent
which would have been due of Tenant to Landlord hereunder if not
for certain concessions granted by Landlord to Tenant. Landlord,
in addition to but not in lieu of or in limitation of any other
right or remedy provided to Landlord under the terms of this
Lease or otherwise (but only to the extent such sum is not
reimbursed to Landlord in conjunction with any other payment made
by Tenant to Landlord), shall have the right to be immediately
repaid by Tenant the amount of all sums expended by Landlord and
not repaid by Tenant in connection with preparing or improving
the Premises to Tenant's specifications and any and all costs and
expenses incurred in renovating or altering the Premises to make
it suitable for reletting; and/or
(iv) As agent of Tenant, do whatever Tenant is obligated to do under
this Lease, including, but not limited to, entering the Premises,
without being liable to prosecution or any claims for damages, in
order to accomplish this purpose. Tenant agrees to reimburse
Landlord immediately upon demand for any expenses which Landlord
may incur in thus effecting compliance with this Lease on behalf
of Tenant. Landlord shall not be liable for any damages
resulting to Tenant from such action, whether caused by the
negligence of Landlord or otherwise.
(c) Pursuit by Landlord of any of the foregoing remedies shall not
preclude the pursuit of general or special damages incurred, or of any of the
other remedies provided herein, at law or in equity.
(d) No act or thing done by Landlord or Landlord's employees or
agents during the Term shall be deemed an acceptance of a surrender of the
Premises. Neither the mention in this Lease of any particular remedy, nor the
exercise by Landlord of any particular remedy hereunder, at law or in equity,
shall preclude Landlord from any other remedy Landlord might have under this
Lease, at law or in equity. Any waiver of or redress for any violation of any
covenant or condition contained in this Lease or any of the Rules now or
hereafter adopted by Landlord, shall not prevent a subsequent act, which would
have originally constituted a violation, from having all the force and effect of
an original violation. The receipt by Landlord of Rent with knowledge of the
breach of any covenant in this Lease shall not be deemed a waiver of such
breach.
11. ASSIGNMENT AND SUBLETTING
(a) Tenant shall not sublet any part of the Premises, nor assign this
Lease or any interest herein, nor, once any such sublet or assignment is
consented to by Landlord, amend or modify the terms of such sublet or
assignment, without the prior consent of Landlord, which consent may be granted
or withheld, in all such instances, in Landlord's reasonable discretion. In no
event shall Tenant be permitted to sublease space or assign its interest in the
Lease to any existing occupant of the Building (whether as a tenant under a
lease or otherwise), or to any subsidiary or affiliate thereof or related party
thereto. In any event, no assignee or sublessee (or Tenant, on behalf or for
the benefit of an assignee or sublessee) shall have the right to exercise any
extension or renewal of Term, or any right to expand or otherwise increase the
size of the Premises. Landlord may deny consent to an assignment or sublease
if, by way of illustration but not limitation, the rate of compensation,
including, but not limited to, all rent, requested by Tenant for the portion of
the Premises to be subleased or for the assignment of the Lease would impact
upon or impair Landlord's ability to rent space in the Building at the then
market rate as offered by Landlord or if the financial statements of the
proposed assignee or sublessee are unsatisfactory. Additionally, neither Tenant
nor any other person having an interest in the possession, use, occupancy or
utilization of the Premises shall enter into any lease, sublease, license,
concession, assignment or other agreement for use, occupancy or utilization of
space in the Premises which provides for rental or other payment for such use,
occupancy or utilization based, in whole or in part, on the net income or
profits derived by any person or entity from the Premises leased, used, occupied
or utilized. Any such purported lease, sublease, license, concession,
assignment or other agreement shall be absolutely void and ineffective as a
conveyance of any right or interest in the possession use, occupancy or
utilization of any part of the Premises. If such a sublease is entered into,
neither the rental payable thereunder nor the amount thereof passed on to any
person or entity shall have deducted therefrom any expenses or costs related in
any way to the subleasing of such space.
(b) Consent by Landlord to one assignment or sublease shall not
destroy or waive this provision, and all later assignments and subleases shall
likewise be made only upon prior consent of Landlord, such consent of Landlord
not to be unreasonably withheld or delayed. If a sublease or assignment is
consented to by Landlord, any sublessees or assignees shall become liable
directly to Landlord for all obligations of Tenant hereunder without relieving
or in any way modifying Tenant's liability hereunder. If Tenant notifies
Landlord of Tenant's intent to sublease or assign this Lease, Landlord shall
within thirty (30) days from such notice (a) consent to such proposed
subletting; (b) deny such consent, giving reasons for denying such consent at
the time of the denial; (c) elect to cancel this Lease, or to reduce the
Premises by the area requested to be subleased or assigned if the area is less
than the entire Premises; or (d) elect to sublease the space, or take the
assignment, as applicable, on the same terms and conditions as offered by the
third-party. If Landlord elects to cancel or to reduce the area of the
Premises, Tenant shall have ten (10) days from such notice to notify Landlord of
Tenant's acceptance of such cancellation or reduction or Tenant's desire to
remain in possession of Premises for the Term. If
Tenant fails to so notify Landlord of Tenant's election to accept termination or
reduction or to continue as Tenant hereunder, such failure shall be deemed an
election to terminate or have the area of Premises reduced, as the case may be,
and such termination or reduction shall be effective as of the end of the ten
(10) day period provided for in Landlord's notice as hereinabove provided. If
Landlord gives its consent to any such assignment or sublease, any rent or other
cost to the assignee or subtenant for all or any portion of the Premises over
and above the Rent payable by Tenant for such space shall be due and payable,
and shall be paid, to Landlord. If this Lease is cancelled, the area of
Premises is reduced or a sublease or assignment is made as herein provided,
Tenant shall pay Landlord a charge equal to the actual costs incurred by
Landlord, in Landlord's reasonable judgment (including, but not limited to, the
use and time of Landlord's personnel), for all of the necessary legal and
accounting services required to accomplish such cancellation, reduction of area
of the Premises, assignment or subletting, as the case may be.
(c) Tenant shall have the right to assign the Lease or sublet the
Premises, or any part thereof, without Landlord's consent, but subject to
Landlord's rights to notice and prohibition contained herein, to any parent,
subsidiary, affiliate or controlled corporation or to a corporation into which
Tenant may be converted or with which Tenant may merge ("Affiliate") if the
Affiliate has a net worth greater than or equal to Tenant at the time of the
proposed assignment or sublease. Tenant shall in any event have the obligation
to notify Landlord of its intent of any such arrangement, and if Landlord
reasonably determines that the proposed assignee or sublessee is engaged in a
business which would materially interfere with the operation of the Property or
that permitting the assignment or subletting would cause a violation by Landlord
of its obligations under any lease covering a portion of the Property, Landlord
shall have the right to prohibit such arrangement based upon the aforesaid
factors.
12. CONDEMNATION
If the Premises, or a part of such Premises such that the Premises in
the reasonable judgment of the Architect for the Building are untenantable, are
taken by eminent domain or other similar proceeding or are conveyed in lieu of
such taking, this Lease shall expire on the date when title or right of
possession vests, and Rent paid for any period beyond said date shall be repaid
to Tenant. If there is a partial taking where this Lease is not terminated, the
Rent shall be adjusted in proportion to the square feet of Premises taken, which
square footage shall be determined by the Architect for the Building. In either
event, Landlord shall be entitled, and Tenant shall not have any right, to claim
any award made in any condemnation proceeding, action or ruling relating to the
Building or the Property; provided, however, Tenant shall be entitled to make a
claim in any condemnation proceeding, action or ruling relating to the Building
for Tenant's moving expenses and the unamortized value of leasehold improvements
in the Premises actually paid for by Tenant, to the extent such claim does not
in any manner impact upon or reduce Landlord's claim or award in such
condemnation proceeding, action or ruling. Landlord shall have, in Landlord's
sole discretion, the option of terminating this Lease upon sixty (60) days prior
notice to Tenant if any such condemnation, action, ruling or conveyance in lieu
thereof makes continuation of Landlord's use of the Building economically
unfeasible.
13. INSPECTIONS
Landlord, its agents or employees may enter the Premises at reasonable
hours and upon reasonable prior notice (except in an emergency for which no
notice shall be required) to (a) exhibit the Premises to prospective purchasers
or tenants of the Premises or the Building; (b) inspect the Premises to see that
Tenant is complying with its obligations hereunder; and (c) make repairs (i)
required of
Landlord under the terms hereof; (ii) to any adjoining space in the Building; or
(iii) to any systems serving the Building which run through the Premises.
14. SUBORDINATION
(a) This Lease shall be subject and subordinate to any underlying
land leases or deeds to secure debt which may now or hereafter affect this
Lease, the Building or the Property and also to all renewals, modifications,
extensions, consolidations, and replacements of such underlying land leases and
deeds to secure debt. In confirmation of the subordination set forth in this
Paragraph 14, Tenant shall, at Landlord's request, execute and deliver such
further instruments desired by the holder of the deed to secure debt (a
"Mortgagee") or by any lessor under any such underlying land leases.
Notwithstanding the foregoing, Landlord or such Mortgagee shall have the right
to subordinate or cause to be subordinated, in whole or in part, any such
underlying land leases or deeds to secure debt to this Lease (but not in respect
to priority of entitlement of insurance or condemnation proceeds). If any such
underlying land leases or deeds to secure debt terminate for any reason or any
such deeds to secure debt are foreclosed or a conveyance in lieu of foreclosure
is made for any reason, Tenant shall, notwithstanding any subordination, deliver
to Mortgagee within ten (10) days of written request an attornment agreement,
providing that such Tenant shall continue to abide by and comply with the terms
and conditions of this Lease.
(b) If any proceedings are brought for the foreclosure of, or in the
event of exercise of the power of sale or conveyance in lieu of foreclosure
under any deed to secure debt, Tenant shall at the option of the purchaser at
such foreclosure or other sale, attorn to such purchaser and recognize such
person as Landlord under this Lease. The institution of any suit, action or
other proceeding by a Mortgagee or a sale of the Property pursuant to the powers
granted to a Mortgagee under its deed to secure debt, shall not, by operation of
law or otherwise, result in the cancellation or the termination of this Lease or
of the obligations of Tenant hereunder.
(c) If such purchaser requests and accepts such attornment, from and
after such attornment, Tenant shall have the same remedies against such
purchaser for the breach of an agreement contained in this Lease that Tenant
might have had against Landlord if the deed to secure debt had not been
terminated or foreclosed, except such purchaser shall not be (i) liable for any
act or omission of the prior Landlord; (ii) subject to any offsets or defenses
which Tenant might have against the prior Landlord; or (iii) bound by any Rent
or security deposit which Tenant might have paid in advance to the prior
Landlord.
15. INDEMNIFICATION AND HOLD HARMLESS
(a) Tenant hereby indemnifies and holds Landlord harmless from and
against any injury, expense, damage, liability or claim, imposed on Landlord by
any person whomsoever, whether due to damage to the Premises, claims for
injuries to the person or property of any other tenant of the Building or of any
other person in or about the Building for any purpose whatsoever, or
administrative or criminal action by a governmental authority, whether such
injury, expense, damage, liability or claim results either directly or
indirectly from the act, omission, negligence, misconduct or breach of any
provisions of this Lease by Tenant, the agents, servants, or employees of
Tenant, or any other person entering upon the Premises under express or implied
invitation or consent of Tenant. Tenant further agrees to reimburse Landlord
for any costs or expenses, including, but not limited to, court costs and
reasonable attorney's fees, which Landlord may incur in investigating, handling
or litigating any such claim or any action by a governmental authority.
(b) Landlord hereby agrees to indemnify and hold Tenant harmless from
and against any and all loss, cost or damage, or claim thereof, suffered or
incurred by Tenant arising out of or resulting from the willful misconduct or
gross negligence of Landlord, its agents, employees or contractors.
(c) Tenant shall give notice to Landlord of any defective condition
in or about the Premises known to Tenant, and further agrees to attempt to
contact Landlord by telephone immediately in such instance.
16. TENANT'S INSURANCE
Tenant shall carry (at its sole expense during the Term) (i) fire and
extended coverage insurance insuring Tenant's interest in its improvements to
the Premises and any and all furniture, equipment, supplies, contents and other
property owned, leased, held or possessed by Tenant and contained therein, such
insurance coverage to be in an amount equal to the full insurable value of such
improvements and property, as such may increase from time to time, (ii) worker's
compensation insurance as required by applicable law, and (iii) comprehensive
liability coverage for injury to or death of a person or persons and for damage
to property occasioned by or arising out of any construction work being done on
the Premises, or arising out of the condition, use, or occupancy of the
Premises, or other portions of the Building or Property, the limits of such
policy or policies to be in amounts not less than One Million Five Hundred
Thousand Dollars ($1,500,000) with respect to injuries to or death of any one
person, Five Million Dollars ($5,000,000) with respect to any one casualty or
occurrence and Three Hundred Thousand Dollars ($300,000) with respect to
property damage. Landlord and Tenant shall each have included in all policies
of insurance respectively obtained by them with respect to the Building or
Premises a waiver by the insurer of all right of subrogation against the other
in connection with any loss or damage insured against. To the full extent
permitted by law, Landlord and Tenant each waives all right of recovery against
the other, and agrees to release the other from liability for loss or damage to
the extent such loss or damage is covered by valid and collectible insurance in
effect at the time of such loss or damage; provided, however, that the foregoing
release by each party is conditioned upon the other party's carrying insurance
with the above described waiver of subrogation, and if such coverage is not
obtained or maintained by either party, then the other party's foregoing release
shall be deemed to be rescinded until such waiver is either obtained or
reinstated. All said insurance policies shall be carried with companies
licensed to do business in the State of Georgia reasonably satisfactory to
Landlord and shall be noncancellable except after twenty (20) days' written
notice to Landlord. Each policy shall name Landlord, Landlord's Property
Manager and any other person designated by Landlord as additional insureds and
provide that it is primary to, and ot contributing with, any policy carried by
Landlord, Landlord's Property Manager, or other designated person covering the
same loss. At Landlord's request, duly executed certificates of such insurance
shall be delivered to Landlord prior to the Commencement Date and at least
thirty (30) days prior to the expiration of each respective policy term.
17. REMEDIES CUMULATIVE
The rights given to Landlord and Tenant herein are in addition to any
rights that may be given to Landlord or Tenant by any statute or under law.
18. ENTIRE AGREEMENT - NO WAIVER
This Lease contains the entire agreement of the parties hereto and no
representations, inducements, promises or agreements, oral or otherwise, between
the parties not embodied herein shall be of any force and effect. The failure
of either party to insist in any instance on strict performance of any covenant
or condition hereof, or to exercise any option herein contained, shall not be
construed as a waiver of such covenant, condition or option in any other
instance. This Lease cannot be changed or terminated orally, and can be
modified only in writing, executed by each party hereto.
19. HOLDING OVER
If Tenant remains in possession of the Premises after expiration of
the Term, or after any termination of the Lease by Landlord, with Landlord's
acquiescence and without any written agreement between the parties, Tenant shall
be a tenant at sufferance and such tenancy shall be subject to all the
provisions hereof, except that the Monthly Rental for said holdover period shall
be one hundred fifty percent (150%) of the amount of Rent due in the last month
of the Term, for the first three (3) months of any such hold-over, and then
double the amount of Rent thereafter. There shall be no renewal of this Lease
by operation of law. Nothing in this Paragraph shall be construed as a consent
by Landlord to the possession of the Premises by Tenant after the expiration of
the Term or any termination of the Lease by Landlord, or as an exclusive remedy
in the event of a holdover.
20. HEADINGS
The headings in this Lease are included for convenience only and shall
not be taken into consideration in any construction or interpretation of any
part of this Lease.
21. NOTICES
(a) Any notice, request or consent by either party to the other
hereunder shall be valid only if in writing and shall be deemed to be duly given
only if hand-delivered, or sent by certified mail or by a recognized national
overnight delivery service which has a receipt of notice as a part of its
delivery function. Such notices shall be addressed (i) if to Tenant, at the
Premises and (ii) if to Landlord, at Landlord's address set forth above, or at
such other address for either party as that party may designate by notice to the
other. Notice shall be deemed given, if delivered personally, upon delivery
thereof, and if mailed, upon the mailing thereof.
(b) Tenant hereby appoints as its agent to receive service of all
dispossessory or distraint proceedings, an employee in the Premises at the time
of any such service.
22. HEIRS, SUCCESSORS, AND ASSIGNS - PARTIES
(a) This Lease shall bind and inure to the benefit of Landlord and
Tenant, and their respective successors, heirs, legal representatives and
assigns. The term "Landlord" as used in this Lease means only the owner (or the
ground lessee) for the time being of the Property and Building of which the
Premises are a part, so that in the event of any sale or sales of said Property
(or of any lease thereof), Landlord named herein shall be and hereby is entirely
released of all covenants and obligations of Landlord hereunder accruing
thereafter, and it shall be deemed without further agreement that the purchaser,
or the lessee, as the case may be, has assumed and agreed to carry out any and
all covenants and obligations of Landlord hereunder during the period such party
has possession of the Property and
Building. If the Property and Building are severed as to ownership by sale
and/or lease, the owner of the entire Building or lessee of the entire Building
that has the right to lease space in the Building to tenants shall be deemed
"Landlord". Tenant shall be bound to any such succeeding party for performance
by Tenant of all the terms, covenants, and conditions of this Lease and agrees
to execute any attornment agreement not in conflict with the terms and
provisions of this Lease at the request of any such party.
(b) The parties "Landlord" and "Tenant" and pronouns relating
thereto, as used herein, shall include male, female, singular and plural,
corporation, partnership or individual, as may fit the particular parties.
23. ATTORNEY'S FEES
If Landlord has to engage or consult with an attorney as a result of
or in connection with a failure by Tenant to pay any Rent as and when due under
the Lease, then Tenant shall owe to Landlord, in addition to and not in lieu of
any other amounts due hereunder, and shall pay within ten (10) days after demand
for payment therefor is made, all such attorneys fees incurred by Landlord.
Also, if any law suit or court action between Landlord and Tenant arises out of
or under this Lease, the prevailing party in such law suit or court action shall
be entitled to and shall collect from the non-prevailing party the reasonable
attorney's fees and court costs actually incurred by the prevailing party with
respect to said lawsuit or court action.
24. TIME OF ESSENCE
TIME IS OF THE ESSENCE OF THIS LEASE.
25. NO ESTATE IN LAND
Tenant has only a usufruct under this Lease, not subject to levy or
sale. No estate shall pass out of Landlord by this Lease.
26. LETTER OF CREDIT
Tenant shall deliver to Landlord an irrevocable, unconditional letter
of credit in favor of Landlord in the amount of $ 30,000.00, in a form
acceptable to Landlord and issued by a bank in the Atlanta, Georgia metropolitan
area. If Tenant defaults or otherwise fails to comply with the terms of the
Lease for any reason, Landlord may immediately draw upon and receive payment
under said letter of credit, it being the express intent of Landlord and Tenant
that the letter of credit be used as a security deposit, securing the full and
complete performance by Tenant of Tenant obligations under the Lease. Such
letter of credit shall permit transfers of the payee thereunder if Landlord
transfers its interest in the Building. The letter of credit shall be open and
may be drawn upon for a period which expires eighteen months after the
Commencement Date; provided however, that such letter of credit may be of a
duration shorter than said period, so long as Tenant replaces said letter of
credit with a new letter of credit, on the same terms and conditions, and in the
same amount, as the prior letter of credit, at least one (1) month prior to the
expiration of the prior letter of credit.
27. COMPLETION OF THE PREMISES
Landlord shall supervise completion of the work described in
EXHIBIT "D" subject to payments which may be required of Tenant thereunder. Any
work required by Tenant as provided for in
said EXHIBIT "D" shall be performed within the provisions and according to all
standards of said EXHIBIT "D".
28. PARKING ARRANGEMENTS
Landlord shall maintain unreserved parking spaces for use by Tenant
and Tenant's invitees and employees, in such amount or ratio as is in compliance
with the zoning for the Property, as may be modified from time to time, and
Tenant (and Tenant's guests and employees) shall only be entitled to use that
amount of parking spaces (determined on a parking space per square foot leased
basis). Such parking shall be available subject to the limitations and
conditions from time to time imposed by Landlord. Said parking shall be
maintained on the Property or on areas located in the vicinity of the Property.
29. RULES AND REGULATIONS
The Rules on EXHIBIT "F" are a part of this Lease. Landlord may from
time to time amend, modify, delete or add additional Rules for the use,
operation, safety, cleanliness and care of the Premises and the Building. Such
new or modified Rules shall be effective upon written notice to Tenant. Tenant
will cause its employees and agents, or any others permitted by Tenant to occupy
or enter the Premises to at all times abide by the Rules. If there is a breach
of any Rules, Landlord shall have all remedies in this Lease provided for in an
Event of Default by Tenant and shall, in addition, have any remedies available
at law or in equity, including but not limited to, the right to enjoin any
breach of such Rules. Landlord shall not be responsible to Tenant for the
nonobservance by any other tenant or person of any such Rules.
30. RIGHT TO RELOCATE
At any time or from time to time during the Lease Term, Landlord shall
have the unrestricted and unconditional right to relocate Tenant from the
Premises to any other office space within the project currently referred to as
"Concourse". Landlord shall deliver notice to Tenant of Landlord's desire to
relocate Tenant, together with a proposal for the area to which such Premises
shall be relocated. Should Landlord exercise its right to relocate Tenant under
this Paragraph 30 then (i) expenses of said relocation or of any necessary
renovation or alteration (including costs of cabling or re-cabling, costs of
moving telephone equipment, costs of replacing stationary rendered obsolete by
virtue of the change of address, and the costs of the move), as calculated by
Landlord prior to any relocation, shall be paid by Landlord, and (ii) following
such relocation, the substituted space shall for all purposes thereinafter
constitute the Premises and all terms and conditions of this Lease shall apply
with full force and effect to the Premises as so relocated. Tenant shall have
the right to terminate the Lease if Tenant believes, in Tenant's reasonable and
good faith judgment, that the space to which the Premises are being relocated is
not acceptable. In such event, Tenant shall notify Landlord within twenty (20)
days of the date Tenant first has notice of the space proposed as the new
Premises, such termination to be effective sixty (60) days after such notice of
termination is given. If Tenant has not relocated its premises within sixty
(60) days after Landlord first notifies Tenant of Landlord's desire to relocate
Tenant, then it shall be an event of default on the part of Tenant, and Landlord
shall have, as a part of said remedies, the right to terminate this Lease. Such
termination shall be effective upon any date selected by Landlord in the
Termination Notice which is at least ten (10) days after the Termination Notice
is given by Landlord to Tenant. Tenant hereby further covenants and agrees to
promptly execute and deliver to Landlord any lease amendment or other such
document appropriate to reflect the changes in the Lease described or
contemplated above.
31. LATE PAYMENTS
Any payment due of Tenant hereunder not received by Landlord within five (5)
days of the date when due shall be assessed a five percent (5%) charge for
Landlord's administrative and other costs in processing and pursuing the payment
of such late payment, and shall be assessed an additional five percent (5%)
charge for the aforesaid costs of Landlord for each month thereafter until paid
in full. Acceptance by Landlord of a payment, and the cashing of a check, in an
amount less than that which is currently due shall in no way affect Landlord's
rights under this Lease and in no way be an accord and satisfaction. This
provision does not prevent Landlord from declaring the non-payment of Rent when
due an event of default hereunder.
32. ESTOPPEL CERTIFICATE
Tenant shall, within ten (10) business days of the request by
Landlord, execute, acknowledge and deliver to Landlord, any Mortgagee,
prospective Mortgagee or any prospective purchaser or transferee of the
Property, the Building, or both (as designated by Landlord), an Estoppel
Certificate in recordable form, or in such other form as Landlord may from time
to time require, evidencing whether or not (a) this Lease is in full force and
effect; (b) this Lease has been amended in any way; (c) Tenant has accepted and
is occupying the Premises; (d) there are any existing defaults on the part of
Landlord hereunder or defenses or offsets against the enforcement of this Lease
to the knowledge of Tenant (specifying the nature of such defaults, defenses or
offsets, if any); (e) the date to which Rent and other amounts due hereunder, if
any, have been paid; and (f) any such other information as may be reasonably
requested by Landlord. Each certificate delivered pursuant to this Paragraph
may be relied on by Landlord, any prospective purchaser or transferee of
Landlord's interest hereunder, or any Mortgagee or prospective Mortgagee.
33. SEVERABILITY AND INTERPRETATION
(a) If any clause or provision of this Lease shall be deemed illegal,
invalid or unenforceable under present or future laws effective during the Term,
the remainder of this Lease shall not be affected by such illegality, invalidity
or unenforceability, and in lieu of each clause or provision of this Lease that
is illegal, invalid or unenforceable, there shall be added as a part of this
Lease a clause or provision as similar in terms to such illegal, invalid or
unenforceable clause or provision as may be possible and be legal, valid and
enforceable.
(b) If any provisions of this Lease require judicial interpretation,
the court interpreting or construing the same shall not apply a presumption that
the terms of any such provision shall be more strictly construed against one
party or the other by reason of the rule of construction that a document is to
be construed most strictly against the party who itself or through its agent
prepared the same, as all parties hereto have participated in the preparation of
this Lease.
34. MULTIPLE TENANTS
If more than one individual or entity comprises and constitutes
Tenant, then all individuals and entities comprising Tenant are and shall be
jointly and severally liable for the due and proper performance of Tenant's
duties and obligations arising under or in connection with this Lease.
35. FORCE MAJEURE
Landlord shall be excused for the period of any delay and shall not be
deemed in default with respect to the performance of any of the terms,
covenants, and conditions of this Lease when prevented from so doing by causes
beyond Landlord's control, which shall include, but not be limited to, all labor
disputes, governmental regulations or controls, fire or other casualty,
inability to obtain any material or services, or acts of God.
36. QUIET ENJOYMENT
So long as Tenant is in full compliance with the terms and conditions
of this Lease, Landlord shall warrant and defend Tenant in the quiet enjoyment
and possession of the Premises during
the Term against any and all claims made by, through or under Landlord, subject
to the terms of this Lease.
37. BROKERAGE COMMISSION; INDEMNITY
TC ATLANTA, INC. ("TC") HAS ACTED AS CONTRACT MANAGER FOR LANDLORD IN
THIS TRANSACTION AND THE WILLIAM B. HARE COMPANY ("HARE") HAS ACTED AS AGENT FOR
TENANT IN THIS TRANSACTION. BOTH TC AND HARE ARE TO BE PAID A COMMISSION BY
LANDLORD. Tenant and Landlord warrant that there are no other claims for
broker's commissions or finder's fees in connection with its execution of this
Lease. Tenant hereby indemnifies Landlord and holds Landlord harmless from and
against all loss, cost, damage or expense, including, but not limited to,
attorney's fees and court costs, incurred by Landlord as a result of or in
conjunction with a claim of any real estate agent or broker, if made by, through
or under Tenant. Landlord hereby indemnifies Tenant and holds Tenant harmless
from and against all loss, cost, damage or expense, including, but not limited
to, attorney's fees and court costs, incurred by Tenant as a result of or in
conjunction with a claim of any real estate agent or broker, if made by, through
or under Landlord. Tenant shall cause any agent or broker representing Tenant
to execute a lien waiver to and for the benefit of Landlord, waiving any and all
lien rights with respect to the Building or Property such agent or broker has or
might have under Georgia law.
38. EXCULPATION OF LANDLORD
Landlord's liability to Tenant with respect to this Lease shall be
limited solely to Landlord's interest in the Building. Neither Landlord, any of
the partners of Landlord, any officer, director, or shareholder of Landlord nor
any of the partners of Landlord shall have any personal liability whatsoever
with respect to this Lease.
39. ORIGINAL INSTRUMENT
Any number of counterparts of this Lease may be executed, and each
such counterpart shall be deemed to be an original instrument.
40. GEORGIA LAW
This Lease has been made under and shall be construed and interpreted
under and in accordance with the laws of the State of Georgia.
41. NO RECORDATION OF LEASE
Without the prior consent of Landlord, neither this Lease nor any
memorandum hereof shall be recorded or placed on public record.
42. HAZARDOUS WASTES
Tenant shall not (either with or without negligence) cause or permit
the escape, disposal or release of any biologically or chemically active or
other hazardous substances or materials. Tenant shall not allow the storage or
use of such substances or materials in any manner not sanctioned by law or by
the highest standards prevailing in the industry for the storage and use of such
substances or materials, nor allow to be brought into the Building, the Premises
or the Property, any such materials or
substances except to use in the ordinary course of Tenant's business, and then
only after notice is given to Landlord of the identity of such substances or
materials. Without limitation, hazardous substances and materials shall include
those described in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601 et seq., the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. Section 6901 et seq., any
applicable state or local laws and the regulations adopted under these acts. If
any lender or governmental agency shall ever require testing to ascertain
whether or not there has been any release of hazardous materials, then the
reasonable costs thereof shall be reimbursed by Tenant to Landlord upon demand
as additional charges if such requirement applies to the Premises. In addition,
Tenant shall execute affidavits, representations and the like from time to time
at Landlord's request concerning Tenant's best knowledge and belief regarding
the presence of hazardous substances or materials on the Premises. In all
events, Tenant shall indemnify Landlord in the manner elsewhere provided in this
Lease from any release of hazardous materials on the Premises occurring while
Tenant is in possession, or elsewhere if caused by Tenant or persons acting
under Tenant. The within covenants shall survive the expiration or earlier
termination of the Lease Term.
43. LEASE BINDING UPON DELIVERY
This Lease shall not be binding until and unless all parties have duly
executed said Lease and a fully executed counterpart of said Lease has been
delivered to Tenant.
44. SPECIAL STIPULATIONS
The special stipulations attached hereto as EXHIBIT "G" and made a
part hereof, if any, shall control if in conflict with any of the foregoing
provisions of this Lease.
IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to
be executed under seal, on the day and year first above written.
TENANT:
DELPHI INFORMATION SYSTEMS, a
corporation of the State of Delaware
_________________________(SEAL)
Authorized Signature
_________________________
Type Name of Signatory
Dated executed by _________________________(SEAL)
Tenant:__________ Authorized Signature
_________________________
Type Name of Signatory
(CORPORATE SEAL)
*Note: If Tenant is a corporation, two authorized corporate officers
must execute this Lease in their appropriate capacities for Tenant,
affixing the corporate seal.
By the execution and delivery of this Lease Tenant has made and shall be
deemed to have made a continuous and irrevocable offer to lease the Premises, on
the terms contained in this Lease, subject only to acceptance by Landlord (as
evidenced by Landlord's signature hereon), which Landlord may accept in its sole
and absolute discretion.
Tenant's Federal Employer Identification Number:______________
LANDLORD:
485 PROPERTIES, LLC, a Delaware limited
liability company
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Date executed by
Landlord:________
EXHIBIT "G"
SPECIAL STIPULATIONS
1. RIGHT OF FIRST REFUSAL. Provided this Lease is then in full force and
effect and Tenant is in full compliance with the terms and conditions of this
Lease, and there is no sublease of any portion of the Premises or assignment of
any of Tenant's interest in the Lease, Landlord hereby grants Tenant the right
to lease approximately 10,000 rentable square feet on the 16th floor of the
Building, more particularly shown on SCHEDULE "1" attached hereto and by this
reference incorporated herein (the "Expansion Space"), in accordance with the
within terms and conditions. Should Landlord receive an offer from an
unaffiliated third party to lease the Expansion Space, upon terms and conditions
and at a rental rate acceptable to Landlord, Landlord shall notify Tenant
thereof in writing setting forth the terms and conditions of such offer, and
offering to lease the Expansion Space to Tenant upon the financial terms
contained in the third party offer. Tenant shall have five (5) days to accept
or reject such offer. If Tenant rejects such offer or fails to respond within
said five (5) day period, then Landlord shall be entitled to rent said space to
such third party on such terms and conditions not materially more favorable than
the terms and conditions offered to Tenant. If Tenant accepts said offer and
such offer occurs within the first two (2) years of the Term, then Tenant shall
have leased such space upon the financial terms contained in said offer, and
upon the other terms and conditions as contained in this Lease and for a term
coterminous with this Lease, except that the space shall be leased "as is, where
is". The Rent for said Expansion Space shall commence on the earlier to occur
of (i) thirty (30) days after Tenant accepts such offer for such Expansion
Space, or (ii) on the date Tenant occupies said Expansion Space. If Tenant
accepts such offer and such offer occurs after the end of the second year of the
Term, then all terms and conditions set forth in the third party offer shall
apply, including the term, which may not be coterminous with this Lease.
2. RENEWAL OF LEASE. (a) Provided this Lease is then in full force and
effect and Tenant is in full compliance with the terms and conditions of this
Lease, and there is no sublease of any portion of the Premises or assignment of
any of Tenant's interest in the Lease, Landlord hereby grants to Tenant an
option to renew this Lease for one (1) period of five (5) years, at a rental
rate equal to the rental rate then being offered by Landlord to tenants desiring
to lease comparable space in the Building or in other buildings comparable to
the Building located in projects comparable to the project in which the Building
is located, with comparable on-site amenities and services and comparable
parking rights and privileges, as such rate is established by Landlord in its
reasonable judgment. Tenant shall notify Landlord no more than fourteen (14)
months and no less than twelve (12) months prior to the end of the Term if
Tenant desires to renew this Lease under the terms of this Special Stipulation
No. 2. If Tenant does give such notice, Landlord shall indicate to Tenant at
least nine (9) months prior to the end of the Term the rental rate which shall
be in effect for the Term as extended, on the basis as above-described. Tenant
shall have thirty (30) days from the date Landlord makes such offer to either
accept or reject such offer. If Tenant rejects such offer or fails to respond
within such thirty (30) day period, then this Lease shall terminate as of the
end of the Term as established herein. If Tenant accepts such offer, then the
Term shall be extended by said five (5) year period, upon the same terms and
conditions as contained in this Lease, and the rent for such period shall be the
rent as offered by Landlord and accepted by Tenant pursuant to the terms and
conditions of this Special Stipulation No. 2.(b)
Notwithstanding anything to the contrary contained herein, any right or
option to extend the Term of the Lease or expand the Premises is expressly
contingent upon Landlord consenting to such extension or expansion, with such
consent by Landlord to be granted or withheld solely upon the credit issues
described below. Landlord shall not be obligated to consent to Tenant's
exercise of any right or option for an extension or expansion, and such exercise
by Tenant shall be of no force or effect if, at the time of the exercise in
question by Tenant, the creditworthiness of Tenant (taking into account net
worth, cash on hand and cash available and net cash flow from operations) would
not be acceptable to Landlord, in Landlord's reasonable judgment, if Tenant
desired to lease space from Landlord in the Building as a new tenant. As a
condition to the consent by Landlord to the exercise of any such right or option
by Tenant, Landlord may request current financial statements from Tenant
certified by an officer or partner of Tenant, or, if available, an outside
independent auditor, to be true and correct. Tenant shall provide such
information to Landlord upon request, and Landlord shall have a reasonable time
to review and assess such information prior to granting consent to any such
exercise by Tenant.