LEASE AGREEMENT

 

TABLE OF CONTENTS

 

			Page
1.		PREMISES AND TERM	1
2.		RENT	2
3.		OPERATING COSTS	3
4.		DELIVERY OF THE PREMISES	9
5.		MEMORANDUM CONFIRMING TERM	10
6.		USE	10
7.		TENANT’S CARE OF THE PREMISES	10
8.		SERVICES	11
9.		DESTRUCTION OR DAMAGE TO PREMISES	14
10.		DEFAULT BY TENANT; LANDLORD’S REMEDIES	15
11.		ASSIGNMENT AND SUBLETTING	18
12.		CONDEMNATION	19
13.		INSPECTIONS	19
14.		SUBORDINATION	19
15.		INDEMNIFICATION AND HOLD HARMLESS	20
16.		INSURANCE	21
17.		REMEDIES CUMULATIVE	22
18.		ENTIRE AGREEMENT - NO WAIVER	23
19.		HOLDING OVER	23
20.		HEADINGS	23
21.		NOTICES	23
22.		HEIRS, SUCCESSORS, AND ASSIGNS - PARTIES	24
23.		ATTORNEY’S FEES	24
24.		TIME OF ESSENCE	24
25.		NO ESTATE IN LAND	25
26.		INTENTIONALLY DELETED	25
27.		INTENTIONALLY DELETED	25
28.		PARKING ARRANGEMENTS	25
29.		RULES AND REGULATIONS	25
30.		INTENTIONALLY DELETED	26
31.		LATE PAYMENTS	26
32.		ESTOPPEL CERTIFICATE	26
33.		SEVERABILITY AND INTERPRETATION	26
34.		MULTIPLE TENANTS	26
35.		FORCE MAJEURE	27
36.		QUIET ENJOYMENT	27
37.		BROKERAGE COMMISSION; INDEMNITY	27
38.		EXCULPATION OF LANDLORD	27
39.		ORIGINAL INSTRUMENT	28
40.		GEORGIA LAW	28
41.		NO RECORDATION OF LEASE	28
42.		HAZARDOUS WASTES	28
43.		PATRIOT ACT	29
44.		LEASE BINDING UPON DELIVERY	29
45.		SPECIAL STIPULATIONS	29
Signature Page

 

ii

 

Exhibit “A” - Space Plan of Premises

 

Exhibit “A-l” – Space Plan of Expansion Space

 

Exhibit “B” - Description of the Property

 

Exhibit “C”-Work Letter

 

Exhibit “C-l” – General Building Specifications to be Performed by Landlord

 

Exhibit “D” - Acceptance of Premises Form

 

Exhibit “E” - Rules and Regulations

 

Exhibit “F” - Special Stipulations

 

Exhibit “G” – Cleaning Specifications

 

Exhibit “H” – Description of Building Standard Materials

 

iii

 

DEFINITIONS

 

Defined Term		Paragraph
ADA		Exhibit “C”
Additional Electrical Equipment		8(b)(iv)
Allowance		Exhibit “C”
Architect		Exhibit “C”
Base Building Improvements		Exhibit “C”
Building		l(a)
Building Plans and Specifications		Exhibit “C”
Building Standard Materials		Exhibit “C”
Change Order		Exhibit “C”
Change Order Effect Notice		Exhibit “C”
Commencement Date		l(b)
Completion Date		Exhibit “C”
Construction Contract		Exhibit “C”
Contractor		Exhibit “C”
Expiration Date		l(b)
Force Majeure		35
Initial Operating Costs		3(a)
Landlord		Caption
Lease		Caption
Lease Year		l(c)
Monthly Rental		2(a)
Mortgagee		14(a)
Operating Costs		3(b)
Premises		l(a)
Property		l(d) and Exhibit “B”
Rent		2(c)
Rules		6 and Exhibit “E”
Shared Service		8(e)
Substantial Completion or Substantially Complete		Exhibit “C”
Tenant		Caption
Tenant Delay		Exhibit “C”
Tenant Improvement Construction Documents		Exhibit “C”
Tenant Improvement Costs		Exhibit “C”
Tenant Improvements		Exhibit “C”
Tenant Space Plans		Exhibit “C”
Tenant’s Share		3(c)
Tenant’s Work		Exhibit “C”
Term		l(b)
Total Building Rentable Area		l(a)
Working Day		Exhibit “C”

 

iv

 

LEASE AGREEMENT
CONCOURSE

 

THIS LEASE AGREEMENT (this “Lease”), made this 7 ^th day of February , 2006, 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 Cousins Properties Services LP

Five Concourse Parkway

Suite 1200

Atlanta, Georgia 30328-6111

 

and FIRST HORIZON PHARMACEUTICAL CORPORATION (“Tenant”), a Delaware corporation, which has as its address prior to the Commencement Date:

 

6195 Shiloh Road

Alpharetta, Georgia 30005

 

and after the Commencement Date:

 

Five Concourse Parkway

Suite 1800

Atlanta, Georgia 30328-6111

 

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”):

 

Floors: 17 and 18

Rentable Square Feet: 50,994

Usable Square Feet:    46,358

 

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. Subject to the provisions of Paragraph 4 below, the term of this Lease (the “Term”) shall commence on the earliest to occur of (i) the thirtieth (30th) day following the date the Tenant Improvements have been Substantially Complete or the date the Tenant Improvements would have been Substantially Complete in the

 

1

 

absence of Tenant Delay; (ii) the date Tenant occupies the Premises or any portion thereof for the purpose of conducting business therefrom; or (iii) July 15, 2006 (the earliest to occur of (i), (ii) or (ii) being hereinafter referred to as the “Commencement Date”), and shall end at midnight on the last day of the ninety-sixth (96th) full calendar month following the Commencement Date (the “Expiration Date”), unless sooner terminated as herein provided. Notwithstanding the foregoing, this Lease shall be effective and enforceable upon its execution and delivery by Landlord and Tenant.

 

(c)            “Lease Year” as used herein shall mean (i) each and every twelve (12) month period during the Term, or (ii) in the event of Lease expiration or termination, the period between the last twelve (12) calendar month period and said expiration or termination; provided, however, that the first Lease Year shall commence on the Commencement Date and expire on the last day of the twelfth (12 ^th ) full calendar month following 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 “B” , 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 and of the office park commonly known as “Concourse”. 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 402862, Atlanta, Georgia 30384-2862 or at such other place Landlord designates, without demand, deduction or setoff, an annual rental for each Lease Year of the Term as set forth below in this Paragraph 2(a), due and payable in equal monthly installments (the “Monthly Rental”) in advance on the first (1st) day of each calendar month during the Term, except that Tenant shall pay the first installment of Monthly Rental upon the execution and delivery of this Lease by Tenant. Said annual rental shall be paid as follows:

 

		Rate (per rentable			Annual Rental
Months		square foot per annum)			(annualized basis)			Monthly Rental
1-12		$	18.75		$	956,137.56		$	79,678.13
13-24		$	19.27		$	982,654.44		$	81,887.87
25-36		$	19.80		$	1,009,681.20		$	84,140.10
37-48		$	20.34		$	1,037,217.96		$	86,434.83
49-60		$	20.90		$	1,065,774.60		$	88,814.55
61-72		$	21.47		$	1,094,841.24		$	91,236.77
73-84		$	22.06		$	1,124,927.64		$	93,743.97
85-96		$	22.67		$	1,156,034.04		$	96,336.17

 

2

 

(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 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, 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. Nothing contained in the immediately preceding sentence shall be construed to place Tenant in default of Tenant’s obligation to pay Rent if and for so long as Tenant shall timely pay the Rent required pursuant to this Lease in the manner designated by Landlord.

 

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, Tenant’s Share of Operating Costs in excess of the Initial Operating Costs. 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 2006, 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;

 

3

 

(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, and cost of all services described in subparagraph 8(a) below;

 

(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 (as hereinafter defined) 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, not to exceed 3% of gross revenues from the Building;

 

(ix)            An amortization cost due to any capital expenditures incurred (i) which have the effect of reducing or limiting Operating Costs of the Property and Building, if such reduction or limitation inures to Tenant’s benefit (but only to the extent and in the amount that such Operating Costs of the Property and Building are reduced); (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)            Reasonable legal and accounting fees and expenses incurred by Landlord in connection with the management, maintenance and repair of the Property; and

 

(xii)           Anything which could be classified as an Operating Cost under generally accepted accounting principles, consistently applied, but not specified or expressly set forth hereunder; provided such cost is reasonably consistent with operating costs of similar class A office buildings in the central perimeter submarket of Atlanta, Georgia.

 

4

 

Excluded from “Operating Costs” are:

 

(i)             net recoveries which reduce expenses incurred by the Landlord including, but not limited to, those pursuant to legal or contractual warranties;

 

(ii)            costs or expenses incurred in connection with satisfying obligations of Landlord which are expressly provided in this Lease to be done at Landlord’s sole cost and expense;

 

(iii)           any expenses which are recovered by the Landlord under a contract, agreement, insurance policy or lease to which the Tenant is not a party, including such amounts which the Landlord would have been able to recover pursuant to insurance policies had the Landlord taken out and maintained the insurance coverage which is required pursuant to this Lease;

 

(iv)           costs of any replacement of to the structure of the Building or its integral systems including but not limited to footings, foundations, structural columns and beams, structural sub-floors bearing walls, exterior walls, roofs, HVAC systems and components, which would be required to be capitalized under generally accepted accounting principles (“GAAP”);

 

(v)            costs and expenses considered to be capital expenses in accordance with GAAP, except as described in Section 3(b)(ix) above;

 

(vi)           any depreciation or notional interest charges thereon, except as expressly set out herein;

 

(vii)          costs and expenses incurred when Tenant was not a Tenant of the Building, such as the original construction costs of the Building, development or complex;

 

(viii)         costs and expenses incurred with respect to any risk which, according to the terms and conditions of this Lease, is not Tenant’s responsibility;

 

(ix)            financing, mortgage and interest charges on the capital retirement of debt of the Landlord and all payments of principal on such debt;

 

(x)             amounts expended by the Landlord related to the leasing of the Building, or any part thereof, including (1) marketing, advertising and promotional expenditures whether specifically for leasing or to promote the Building’s image or otherwise, (2) leasing commissions, (3) tenant inducements of any kind, and (4) the cost of any work related to portions of the Building occupied by other tenants of the building and vacant areas of the Building other than those designated as shared common areas;

 

(xi)            costs and expenses in connection with services or other benefits provided to another tenant or occupant of the Building;

 

5

 

(xii)           payments made under any ground or head lease or any legal or other costs incurred as a result of activities or disputes between the Landlord and its mortgagees, partners, shareholders or ground lessors;

 

(xiii)          bad debts, lost rents and any costs associated with the collection or attempted collection of such debts;

 

(xiv)         any unfunded pension or other benefits of any person described in Section 3(b)(i);

 

(xv)          any expenses (including, but not limited to fines, penalties, legal fees and interest) resulting from the Landlord’s failure to comply with this Lease, other tenants’ leases, any contracts laws, or resulting from the negligent acts or willful misconduct of the Landlord or its employees, agents or contractors;

 

(xvi)         any wages, salaries or other compensation paid to any employee not employed at least in part for or on behalf of the Building (provided that costs for employees working for or on behalf of the Building part-time must be allocated by Landlord on a pro rata basis to the Building);

 

(xvii)        any property management fees other than those fees which are consistent with similar buildings in the area and which are consistent with the level of service provided by the Landlord.

 

(xviii)       any duplication of costs created by the Landlord charging a property management fees in addition to the salaries of its employees who are rendering the actual services that would otherwise be covered by the fee;

 

(xix)          other than the Property’s concierge services, any compensation paid to clerks, attendants or other persons in commercial concessions operated by Landlord or any affiliate of Landlord in excess of arms length compensation;

 

(xx)           legal, accounting and similar or related costs paid or incurred in connection with any sale, syndication, financing or refinancing involving the Building or any of Landlord’s interests therein;

 

(xxi)          costs or expenses related to Landlord’s cleaning, removal, remediation or compliance required due to the existence of any hazardous materials in, on or affecting the Building and/or land provided such contamination is not a result of the Tenant’s actions or those for whom the Tenant is at law responsible;

 

(xxii)         costs for charitable or political contributions;

 

(xxiii)        costs of any rent loss or income loss insurance or additional casualty insurance premiums for the Building in excess of the standard rate paid by

 

6

 

Landlord, which additional cost is attributable to the tenancy of any other tenant or occupant of the Building;

 

(xxiv)        costs of advertising and promotional for leasing space in the Building;

 

(xxv)         costs allocable to land held for future development that is not in direct support of the Building;

 

(xxvi)        any cost or expense incurred in connection with correcting latent defects in the Premises or the Property;

 

(xxvii)       Landlord’s actual costs incurred in bringing the Property into compliance with applicable laws with which the Property is not in compliance as of the date hereof, including, without limitation, building codes, fire safety regulations and the Americans with Disabilities Act.

 

(xxviii)      corporate, income or profit taxes assessed against the personal income of the Landlord;

 

(xxix)        the Landlord’s capital tax or any large corporation taxes;

 

(xxx)         business taxes levied against the business carried on by the Landlord or any other tenant of the Building; and

 

(xxxii)       local improvement taxes where attributable to the initial development of the Building;

 

(c)            The term “Tenant’s Share” shall mean the proportion that the rentable square footage of 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)            Prior to January 1 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 (l/12th) of such amount during each month of such respective calendar year. If Landlord has not furnished Tenant such comparison by January 1, Tenant shall continue to pay on the basis of the prior year’s estimate until the month after such comparison is given. Not later than May 1, 2007, Landlord shall provide Tenant with an

 

7

 

unaudited statement of the actual Operating Costs for 2006 and Landlord shall, no later than September 1 (or as soon thereafter as practical) after each calendar year during the Term thereafter, 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)            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.

 

(f)             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.

 

(g)            Notwithstanding anything in this Lease to the contrary, Tenant will be responsible for Tenant’s Share of all Taxes (as hereinafter defined), costs of all insurance relating to the Property and the Building, utilities, snow removal, and charges assessed against or attributed to the Building pursuant to any applicable declaration of protective covenants (“Uncontrollable Operating Costs”), without regard to the level of increase in any or all of the above in any year or other period of time. Tenant’s obligation to pay all other Operating Costs that are not Uncontrollable Operating Costs (herein “Controllable Operating Costs”) shall be limited to an annual increase commencing in 2007, equal to the lesser of (i) 6% of the previous year’s Controllable Operating Costs or (ii) the actual increase in Controllable Operating Costs from the previous year.

 

(h)            “Taxes” shall mean all taxes, assessments and government fees and charges (whether determined on an ad valorem basis or otherwise) relating to the Property and any other taxes and assessments attributable to the Property or its operation (and the costs of contesting any of the same), excluding, however, the following: (a) income or franchise taxes or any other taxes imposed upon or measured by Landlord’s income or profits; (b) any fines, penalties or increased interest charged due to Landlord’s failure to pay Taxes in a timely fashion and (c) taxes, assessments, and government fees and charges relating to any additions to or expansions of the Building constructed after the Commencement Date.

 

(i)             Within ninety (90) days after Tenant receives Landlord’s statement of any calendar year’s actual Operating Costs as described in subparagraph (d) above, Tenant may contest such statement by providing written notice to Landlord, provided that there does not then exist an Event of Default hereunder. If no such contest is made by written notice to Landlord within such ninety (90) day period, such Operating Expenses statement shall be binding upon Tenant in all respects. If Tenant timely contests such Operating Expenses statement, Tenant shall have the right to inspect and examine, at reasonable times during normal business hours, Landlord’s books of account and records pertaining to the Operating Expenses, all at Tenant’s sole cost and expense. Prior to any such audit being performed, Tenant and its auditor shall execute a confidentiality agreement in form and substance reasonably acceptable to Landlord. Such audit

 

8

 

shall be conducted at the offices of the Building manager where such records are kept within thirty (30) days after the date of Tenant’s notice. Such audit may be initially conducted, at Tenant’s expense, by a qualified employee of Tenant, or an independent auditor of Tenant’s choice (whose compensation in no event shall be contingent upon the results of such audit or the amount of any refund received by Tenant). Landlord and/or Landlord’s Building manager shall cooperate with Tenant and/or Tenant’s representatives with respect to any such specific inquiries or questions and with respect to the conduct of such audit, so as to facilitate the prompt and efficient answer thereto and/or conduct of same, as applicable. Tenant shall notify Landlord of the results of such audit in writing. Landlord may have an agent or employee present during such inspection and audit. Landlord shall have the right to dispute the results of Tenant’s audit, by written notice delivered to Tenant within thirty (30) days following Landlord’s receipt of the results of such audit. Any such dispute shall be resolved by an independent certified public accountant mutually satisfactory to Landlord and Tenant (whose compensation in no event shall be contingent upon the results of such audit or the amount of any refund received by Tenant), or pursuant to the applicable rules of the American Arbitration Association if Landlord and Tenant cannot agree on the identity of such accountant, with the cost of such accountant being shared by Landlord and Tenant. If the audit by Tenant shall ultimately result in a determination (whether by agreement between Landlord and Tenant or by arbitration) that Tenant has underpaid Landlord for its share of Operating Expenses, Tenant shall pay the additional amount owed to Landlord within thirty (30) days of such ultimate resolution. If the audit by Tenant shall ultimately result in a determination (whether by agreement between Landlord and Tenant or by arbitration) that Tenant has overpaid Landlord for its share of Operating Expenses, such overpayment shall be applied to the next accruing installment(s) of Monthly Rental due from Tenant, until such credit is depleted, except that if the ultimate result of any such audit of Operating Expenses for the last year of the Term shows that Tenant has overpaid Landlord for its share of Operating Expenses, Landlord shall directly reimburse Tenant such amount within thirty (30) days of such ultimate resolution. If the audit by Tenant shall ultimately result in a determination that Tenant has overpaid Landlord for its share of Operating Expenses by more than five percent (5%) of Tenant’s share of the Operating Expenses, then Landlord shall pay the cost of such audit. Tenant hereby agrees to keep the results of any such audit confidential, and to require Tenant’s auditor and its employees and each of their respective attorneys and advisors to likewise keep the results of such audit confidential. In particular, but without limitation, Tenant agrees that: (i) Tenant shall not disclose the results of any such audit to any past, current or prospective tenant of the Building; and (ii) Tenant shall require, that its auditors, attorneys and anyone associated with such parties shall not disclose the results of such audit to any past, current or prospective tenant of Landlord in the Building; provided, however, that Landlord hereby agrees that nothing in items (i) or (ii) above shall preclude Tenant from disclosing the results of such audit in any judicial or quasi-judicial proceeding, or pursuant to court order or discovery request, or to any current or prospective assignee or sub lessee of Tenant, or to any agent, representative, or employee of Landlord who or which requests the same or as required in governmental and regulatory filings.

 

4.              DELIVERY OF THE PREMISES

 

Tenant shall cause completion of the work described in Exhibit “C”, which work shall be performed within the provisions and according to all standards of said Exhibit “C”. Without limiting the generality of the foregoing, Tenant shall timely apply for all permits and

 

9

 

approvals necessary with respect to such work and shall use reasonable efforts to Substantially Complete the same on or before June 15, 2006.

 

Subject to Tenant Delay and Force Majeure, and provided that this Lease is executed by Tenant prior to January 31, 2006, Landlord shall permit Tenant and its contractors access to the Premises beginning on February 1, 2006, for purposes of moving and installation of wiring, cabling, furnishings, fixtures and equipment. Access shall include access to and use of the loading docks, common areas, electricity, air conditioning, security and elevators at no charge to Tenant or its contractors. All provisions of this Lease shall apply with respect to such early access by Tenant other than the obligation to pay Rent.

 

5.              MEMORANDUM CONFIRMING TERM

 

Tenant shall execute and deliver a “Memorandum Confirming Term” agreement upon the taking of possession of the Premises, in the form attached as Exhibit “D” , by this reference incorporated herein.

 

6.              USE

 

Tenant shall use the Premises for professional, executive office purposes (including data center and call center uses), 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 “E” 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. 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. Tenant shall give prompt notice to Landlord of any defective condition in or about the Premises known to Tenant.

 

(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

 

10

 

Landlord at the expiration or early termination of this Lease. Except for any typical office improvements or fixtures (including HVAC equipment), 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 subparagraph (b) above.

 

(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 Tenant 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)            Landlord shall cause to be furnished the following services (the cost of which services are included within Operating Costs):

 

(i)             Elevator service for passenger and delivery needs;

 

(ii)            During the hours from 8:00 AM to 6:00 PM on weekdays and 8:00 AM to 1:00 PM on Saturdays, 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. Landlord will provide Tenant with additional heating and air conditioning services so long as Tenant notifies Landlord of its desire for such services no later than 3:00 PM

 

11

 

on the day before such services are requested or 3:00 PM on Friday if such services are requested for Saturday.

 

(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 as itemized in Exhibit G, including, without limitation, 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; and

 

(x)             Electricity for the Premises, Building and Property at a design load not less than six (6) watts per rentable square foot.

 

(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 200 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

 

12

 

use items shall not be used or installed, unless expressly permitted elsewhere herein or by consent of Landlord; and

 

(iv)           Should Tenant’s total rated electrical design load per square foot in the Premises exceed the Building standard rated electrical design load of six (6) watts per rentable square foot, on a per rentable square foot basis, as accurately 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 accurately 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) of six (6) watts per rentable square foot, 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. The charge for after hours heating and air conditioning shall be $30.00 for each hour outside the times set forth in Section 8(a)(ii). 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)            Except as set forth in subparagraph (f) below, Landlord shall not be liable for any damages and Tenant shall have no right of set-off or reduction in Rent as a result of the installation, use, malfunction, or interruption of use of any equipment in connection with the furnishing of services referred to herein, including, but not limited to, any interruption in services by any cause beyond the immediate control of the Landlord; provided however, Landlord shall exercise due care in furnishing adequate and uninterrupted services. Without limitation on the foregoing, under no circumstances shall Landlord 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)            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

 

13

 

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.

 

(f)             Notwithstanding the foregoing, in the event that (i) Landlord fails to provide services to Tenant as required by this Lease for a continuous period in excess of five (5) consecutive business days after receiving written notice of such failure, (ii) such failure is on account of a reason within Landlord’s reasonable control, and (iii) such failure materially interferes with Tenant’s use and enjoyment of all or a portion of the Premises then:

 

(i)             Landlord shall provide Tenant a credit against Monthly Rental next owing, in an amount equal to the Monthly Rental under this Lease (with the amount of such Monthly Rental being prorated in the event such failure does not affect Tenant’s ability to use or enjoy the entire Premises) from and after the expiration of such five (5) business day period and until such time as Landlord resumes providing such service or services to Tenant; provided, however, Tenant shall not be entitled to any such credit in the event that such failure to provide services is caused or contributed to materially by Tenant or Tenant’s employees, invitees, contractors, licensees and other visitors to the Premises or the Building; and

 

(ii)            Notwithstanding the foregoing, if such failure to provide services is a failure under Section 8(a)(ii), and such failure cannot be remedied within four hours of such failure, then upon Tenant’s request, Landlord shall provide temporary HVAC.

 

(g)            Landlord agrees to engage appropriate consultants from time to time to contest any Taxes determined by Landlord to be unreasonably high.

 

(h)            Throughout the Term, Landlord shall maintain the structural components of the Building and all common areas in a first class manner.

 

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 determination of the Architect) by storm, fire, earthquake or other casualty, Landlord shall have the option to:

 

14

 

(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 Completion thereof.

 

If Landlord fails to complete such restoration within one hundred fifty (150) 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 state of Substantial Completion.

 

(b)            If the Premises are damaged but not rendered untenantable for Tenant’s business use 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 following the later of (i) the date that the same is due or (ii) written notice from Landlord that the same is due, provided, however, that in no event shall Landlord be obligated to provide Tenant any such written notice on more than two (2) occasions during any twelve (12) month period;

 

(ii)            Any petition is filed by or against Tenant under any section or chapter of the National or Federal Bankruptcy Act or any other applicable Federal or State bankruptcy, insolvency or other similar law, and, in the case of a petition filed against Tenant, such petition is not dismissed within thirty (30) days after the date of such filing; if Tenant shall become insolvent or transfer property to defraud creditors; if Tenant shall make an assignment for the benefit of creditors; or if receiver is appointed for any of Tenant’s assets;

 

15

 

(iii)           Tenant fails to bond off or otherwise remove any lien filed against the Premises or the Building by reason of Tenant’s actions, within ten (10) days after Tenant has notice of the filing of such lien; or

 

(iv)           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 thirty (30) 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 thirty (30) days to rectify, unless Tenant commences rectification within the thirty (30) 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 sixty (60) 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. §§ 44-7-50 et seq . and expel or remove Tenant and Tenant’s effects without being liable for any claim for trespass or damages therefor. Upon any such termination, Tenant shall remain liable to Landlord for damages, due and payable monthly on the day Rent would have been payable hereunder, in an amount equal to the Rent and any other amounts which would have been owing by Tenant for the balance of the Term, had this Lease not been terminated, less the net proceeds, if any, of any reletting of the Premises by Landlord, after deducting all of Landlord’s costs and expenses (including, without limitation, advertising expenses and professional fees) incurred in connection with or in any way related to the termination of this Lease, eviction of Tenant and such reletting; and/or

 

(ii)            Declare the entire amount of Rent calculated on the current rate being paid by Tenant, and other sums which in Landlord’s reasonable determination would become due and payable during the remainder of the Term (including, but not limited to, increases in Rent pursuant to Paragraph 2(b) and 3(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

 

16

 

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 costs and expenses (including, without limitation, advertising expenses and professional fees) incurred in connection with or in any way related to the reletting of the Premises. The acceptance of such payment by Landlord shall not constitute a waiver of rights or remedies to Landlord for any failure of Tenant thereafter occurring to comply with any term, provision, condition or covenant of this Lease; and/or

 

(iii)           Enter the Premises as the agent of Tenant without the requirement of resorting to the dispossessory procedures set forth in O.C.G.A. §§ 44-7-50 et seq . and without being liable for any claim for trespass or damages therefor, and, in connection therewith, rekey the Premises, remove Tenant’s effects therefrom and store the same at Tenant’s expense, without being liable for any damage thereto, and relet the Premises as the agent of Tenant, without advertisement, by private negotiations, for any term Landlord deems proper, and receive the rent therefor. Tenant shall pay Landlord on demand any deficiency that may arise by reason of such reletting, but Tenant shall not be entitled to any surplus so arising. Tenant shall reimburse Landlord for all costs and expenses (including, without limitation, advertising expenses and professional fees) incurred in connection with or in any way related to the eviction of Tenant and reletting the Premises, and for the amount of any other Rent which would have been due of Tenant to Landlord hereunder if not for certain concessions granted by Landlord to Tenant. Landlord, in addition to but not in lieu of or in limitation of any other right or remedy provided to Landlord under the terms of this Lease or otherwise (but only to the extent such sum is not reimbursed to Landlord in conjunction with any other payment made by Tenant to Landlord), shall have the right to be immediately repaid by Tenant the amount of all sums expended by Landlord and not repaid by Tenant in connection with preparing or improving the Premises to Tenant’s specifications and any and all costs and expenses incurred in renovating or altering the Premises to make it suitable for reletting; and/or

 

(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

 

17

 

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 shall not be unreasonably withheld, delayed or conditioned. Without limiting the generality of the foregoing, Landlord may deny consent to an assignment or sublease if, by way of illustration but not limitation, (i) the financial statements of the proposed assignee or sublessee are unsatisfactory, or (ii) the proposed assignment or sublease 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.

 

(b)             Consent by Landlord to one assignment or sublease shall not destroy or waive this provision, and all later assignments and subleases shall likewise be made only upon prior consent of Landlord. If a sublease or assignment is consented to by Landlord, any sublessees or assignees shall become liable directly to Landlord for all obligations of Tenant hereunder without relieving or in any way modifying Tenant’s liability hereunder. If Tenant notifies Landlord of Tenant’s intent to sublease or assign this Lease, Landlord shall within fifteen (15) days following receipt of such notice, together with a copy of the proposed sublease or assignment and together with information regarding the proposed subtenant or assignee in detail reasonably sufficient to enable Landlord to evaluate the proposed subtenant or assignee (i) consent to such proposed subletting; or (ii) deny such consent, giving reasons for denying such consent at the time of the denial. If Landlord gives its consent to any such assignment or sublease, after deducting Tenant’s out of pocket costs, including marketing costs, leasing commissions, rent abatement and tenant improvements, fifty percent (50%) of any rent or other cost collected by Tenant from 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 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 reasonably necessary legal and

 

18

 

accounting services required to accomplish such reduction of area of the Premises, assignment or subletting, as the case may be.

 

(c)            Notwithstanding anything in this Lease to the contrary, Landlord’s consent shall not be required for any assignment of this Lease or subletting of the Premises by Tenant to an assignee or sublessee that is directly or indirectly in control of, controlled by or under common control with Tenant or its principals, or into which or with which Tenant merges or consolidates, or which purchases all or substantially all of the stock or assets of Tenant; provided, however, (i) in no event shall Tenant be released from its liability under this Lease, and (ii) Tenant shall provide to Landlord written notice of such assignment or subletting at least thirty (30) days prior to the effective date thereof, together with a copy of the proposed agreement of assignment or sublease and together with such information regarding the assignee or sublessee in such reasonable detail to enable Landlord to determine that the proposed assignment or sublease is permitted without Landlord’s consent pursuant to this subparagraph (c).

 

12.            CONDEMNATION

 

If the Premises (or a part of such Premises such that the Premises, in the reasonable judgment of the Architect, 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, as determined by Architect. In either event, Landlord shall be entitled, and Tenant shall not have any right, to claim any award made in any condemnation proceeding, action or ruling relating to the Building or the Property; provided, however, Tenant shall be entitled to make a claim in any condemnation proceeding, action or ruling relating to the Building for Tenant’s moving expenses and the unamortized value of leasehold improvements in the Premises actually paid for by Tenant, to the extent such claim does not in any manner impact upon or reduce Landlord’s claim or award in such condemnation proceeding, action or ruling. Landlord shall have, in Landlord’s sole discretion, the option of terminating this Lease if any such condemnation, action, ruling or conveyance in lieu thereof makes continuation of Landlord’s use of the Building economically unfeasible.

 

13.            INSPECTIONS

 

Landlord, its agents or employees may enter the Premises at reasonable hours and upon reasonable notice (which notice may be by telephone) to Tenant except in the event of an emergency 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

 

19

 

such underlying land leases and deeds to secure debt. Neither the Building nor the Property nor any portion thereof is currently subject to any such land lease or deed 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”) executed after the date hereof or by any lessor (“Lessor”) under any such underlying land leases executed after the date hereof, provided that Landlord obtains a nondisturbance agreement for the benefit of Tenant from such Mortgagee or Lessor. Notwithstanding the foregoing, Landlord or such Mortgagee or Lessor 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 shall defend, protect, indemnify and hold harmless Landlord and Landlord’s agents and employees against and from any and all claims, suits, liabilities, judgments, costs, demands, causes of action and expenses (including, without limitation, reasonable attorneys’ fees, costs and disbursements) arising from (i) the use of the Premises, the Building or the Concourse project by Tenant or Tenant’s agents, employees or contractors, or from any activity done, permitted or suffered by Tenant or Tenant’s agents, employees or contractors in or about the Premises, the Building or the Concourse project, and (ii) any act, neglect, fault, willful misconduct or omission of Tenant or Tenant’s agents, employees or contractors, or from any breach or default in the terms of this Lease by Tenant or Tenant’s agents, employees or contractors that results in any cost or expense being incurred by Landlord, or (iii) any action or proceeding brought on account of any matter in items (i) or (ii). If any action or proceeding is brought against Landlord by reason of any such claim, upon notice from Landlord, Tenant shall defend the same at Tenant’s expense by counsel reasonably satisfactory to Landlord. As a material part of the consideration to Landlord, Tenant hereby releases Landlord

 

20

 

and Landlord’s agents and employees from responsibility for, waives its entire claim of recovery for and assumes all risk of (x) damage to property or injury to persons in or about the Premises, the Building or the Concourse project from any cause whatsoever (except to the extent caused by the negligence or willful misconduct of Landlord or Landlord’s agents or employees or by the failure of Landlord to observe any of the terms and conditions of this Lease), or (x) loss resulting from business interruption or loss of income at the Premises. The obligations of Tenant under this Paragraph 15(a) shall survive any termination of this Lease with respect to any events occurring or circumstances existing prior to such termination.

 

(b)            Landlord shall indemnify and hold harmless Tenant and Tenant’s agents and employees against and from any and all claims, suits, liabilities, judgments, costs, demands, causes of action and expenses (including, without limitation, reasonable attorney’s fees) arising from the negligence or willful misconduct of Landlord or Landlord’s agents or employees or from the breach of this Lease by Landlord.

 

(c)            The foregoing indemnities shall not relieve any insurance carrier of its obligations under any policies required to be carried by either party pursuant to this Lease, to the extent that such policies cover the peril or occurrence that results in the claim that is subject to the foregoing indemnities.

 

16.           INSURANCE

 

(a)            Tenant shall carry during the Term (and any other period during which Tenant is in possession of the Premises, with all premiums paid prior to the due date at Tenant’s sole expense) (i) all risk 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 and employer’s liability insurance as required by applicable law, (iii) commercial general 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 Dollars ($1,000,000) combined single limit for bodily injury and property damage per occurrence, plus excess coverage of not less than Five Million Dollars ($5,000,000) combined single limit for bodily injury and property damage per occurrence, (iv) insurance against thefts within the Premises, the Building or any project within which the Building is located, and (v) business interruption insurance with a limit of liability representing loss of at least twelve (12) months of income. Tenant shall also maintain and provide such other required evidence to Landlord of any other form of insurance which Landlord, acting reasonably, requires from time to time in form, in amounts, and for risks against which a prudent tenant would insure. 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. All said insurance policies shall be carried with companies licensed to do business in the State of Georgia reasonably satisfactory to Landlord and rated in Best’s Insurance Guide, or any successor thereto (or, if there be none, an organization having a national reputation) as having a general policyholder rating of “A-” and a financial rating of at least “X.” All such policies shall be noncancellable except after twenty (20) days’ written notice to Landlord.

 

21

 

Each policy shall name Landlord, Landlord’s property manager and any other person designated by Landlord as additional insureds and provide that it is primary to, and not contributing with, any policy carried by Landlord, Landlord’s property manager, or other designated person covering the same loss. At Landlord’s request, duly executed certificates of such insurance shall be delivered to Landlord prior to the Commencement Date and at least thirty (30) days prior to the expiration of each respective policy term.

 

(b)            Landlord shall carry and maintain during the Term general comprehensive public liability insurance coverage with respect to the Property and property insurance coverage on an all-risk extended coverage basis with respect to the Property, in such amounts, with such insurance providers and under such terms as such insurance coverage is typically carried and maintained by institutional owners of Class A properties similar to the Property in the Atlanta, Georgia office market. Notwithstanding the foregoing, Landlord shall have the right to self- insure (“Self-Insure”) all or any part of any of said required insurance coverages, in Landlord’s sole discretion, so long as such self-insuring party maintains has a net worth of not less than Fifty Million Dollars ($50,000,000.00) as shown on financial statements for the most recently concluded fiscal year prepared by an independent certified public accountant in accordance with generally accepted accounting principles consistently applied and provided to Tenant upon request. “Self-Insure” shall mean that Landlord is itself acting as though it were the insurance company providing the insurance required under the provisions hereof, and Landlord shall pay amounts due in lieu of insurance proceeds because of self-insurance which amounts shall be treated as insurance proceeds for all purposes under this Lease. In the event that Landlord elects to Self-Insure, and an event or claim occurs for which a defense and/or coverage would have been available from an insurance company, with respect to a loss or damage which Landlord would otherwise be required to insure against as provided above, Landlord shall (i) undertake the defense of any such claim, including a defense of Tenant, at Landlord’s sole cost and expense, and (ii) use its own funds to pay any claim or replace any property or otherwise provide the funding which would have been available from insurance proceeds but for such election by Landlord to Self-Insure.

 

(c)            Landlord and Tenant hereby mutually waive any claim against the other and its agents for any loss or damage to any of their property located on or about the Premises, the Building or the Concourse project that is caused by or results from perils covered by property insurance carried by the respective parties, to the extent of the proceeds of such insurance actually received with respect to such loss or damage, whether or not due to the negligence of the other party or its agents. Because the foregoing waivers will preclude the assignment of any claim by way of subrogation to an insurance company or any other person, each party shall immediately notify its insurer, in writing, of the terms of these mutual waivers and have their insurance policies endorsed to prevent the invalidation of the insurance coverage because of these waivers. Nothing in this Paragraph 16(c) shall relieve a party of liability to the other