LEASE AGREEMENT
BETWEEN
ONE PEACHTREE POINTE ASSOCIATES, LLC
AS LANDLORD
AND
TEAMSTAFF, INC.
AS TENANT
------------------------------
DATE OF LEASE
LANDLORD ___________ TENANT ____________
THIS LEASE AGREEMENT ("Lease") is made and entered into as of the
Date
of Lease on the cover page, by and between:
ONE PEACHTREE POINTE ASSOCIATES, LLC, a Georgia limited
liability company (as "Landlord")
and
TeamStaff, Inc., a New Jersey corporation (as "Tenant")
IN CONSIDERATION of the rents, covenants and agreements herein
provided
to be performed by Landlord and Tenant, Landlord hereby leases and
demises to
Tenant, and Tenant hereby rents from Landlord, that certain office
premises as
hereinafter defined (the "Premises") for the period of time (the
"Lease Term")
and upon the covenants, terms and conditions hereinafter stated:
ARTICLE I
CERTAIN DEFINITIONS AND BASIC LEASE INFORMATION
Section 1.1
In addition to other definitions provided in this Lease, for the
purposes of this Lease the following initially capitalized terms
shall have the
meaning set forth below.
A.
Premises: 2,998 of the third (3rd) floor of the Building, presently
known as Suite No. 340. Said space is identified by diagonal lines
or
shaded area on the floor plans attached hereto as Exhibit "A".
B.
Building:
The building
owned or being
constructed
by Landlord on a
portion of the Land, said building being known as 1545 Peachtree
Street, NE, Atlanta, Georgia 30309.
C.
Land: The land described in Exhibit "B", attached hereto.
D.
Parking Facilities: The parking structure which is adjacent to or
near
the Building and any other parking structure or surface parking
which
Landlord may make available to Tenant.
E.
Project: The Land and all improvements thereon, including the
Building,
the Parking Facilities, and Common Areas.
F.
Lease Term: Five (5) years and five (5) months, beginning on the
Commencement Date (as defined in Section 3.1 below) and ending five
(5)
years and five (5) months after the Commencement Date. The
expiration
date shall occur on the last day of the month of the five (5) year
and
five (5) month anniversary date of the Commencement Date (the
"Expiration Date," unless this Lease is sooner terminated or
extended
as provided herein).
G.
Commencement Date: Defined in Section 3.1.
H.
Net Rentable Area of Premises: 2,998 square feet. This is based on
approximately 2,562 useable square feet within the Premises times a
factor of 1.17. The parties agree that the Net Rentable Area shall
be
as stated herein unless the Premises is enlarged or reduced.
I.
Net Rentable Area of the Building:
158,248 square feet, unless the
size of the Building is subsequently enlarged or reduced.
J.
Tenant's Share: 1.89%, representing a fraction, the numerator of
which
is the Net Rentable Area of the Premises and the denominator of
which
is the Net Rentable Area of the Building, subject to future
adjustment
pursuant to the provisions of Section 5.4 hereof.
K.
Rent: The Base Rent and the Additional Rent.
(i) Base Rent: The Base Rent for the first five (5) months
following
the Commencement Date shall be abated in full. Commencing on the
first
(1st) day of the sixth (6th) month following the Commencement Date,
and
ending on the last day of the twelfth (12th) month following the
Commencement Date, the Base Rent shall be $6,245.83 per month for
said
six (6) month period ($25.00 per square foot on a per annum basis
of
Net Rentable Area of the Premises, which includes Tenant's share of
Operating Costs, as defined below) and is payable in monthly
installments. The
LANDLORD ___________ TENANT ____________
2
Base Rent shall be increased effective on the first day of the
thirteenth (13th) month of the Term, and on each subsequent
anniversary of the Lease Year (as defined in Section 4.3) thereof,
and
shall be payable in monthly installments, in accordance with the
following schedule:
Lease Year
Annual Base Rent
Monthly Base Rent Payment
----------
----------------
-------------------------
Months 1-5
$0.00
$0.00
Months 6-12
$ N/A
$6,245.83
Months 13-24
$77,198.40
$6,433.20
Months 25-36
$79,514.40
$6,626.20
Months 37-48
$81,899.88
$6,824.99
Months 49-60
$84,356.88
$7,029.74
Months 61-65
$86,887.56
$7,240.63
(ii) Additional Rent: All other sums due and payable by Tenant
under
this Lease, including, but not limited to, Tenant's Share of the
Operating Costs
(as such term is defined in Article V hereof), over and above the
Base Year
Operating Cost, as defined below. Landlord's Operating Cost
Estimate, as defined
in Article V hereof, for the 2005 calendar year is $9.50 per Net
Rentable Area
of Premises. Upon Landlord's reconciliation of the 2005 actual
Operating Costs,
Tenant shall be provided with the actual base year amount ("Base
Year Operating
Cost"). Notwithstanding the foregoing, Operating Costs for the
first five (5)
months following the Commencement Date shall be abated in full.
Further,
Operating Costs are included in the Base Rent for months six (6)
through twelve
(12) of the Term and Base Year Operating Costs are included in the
Base Rent for
the entire Term thereafter, as further described in Article V.
L.
Security Deposit: Seven Thousand Two Hundred Forty and 63/100
Dollars
($7,240.63).
M.
Landlord's Address for Notices:
One Peachtree Pointe Associates, LLC
One Peachtree Pointe
1545 Peachtree Street, NE, Suite 250
Atlanta, Georgia 30309
with a copy to:
Dewberry Capital Corporation
One Peachtree Pointe
1545 Peachtree Street, NE. Suite 250
Atlanta, Georgia 30309
Attn: Douglas G. Dewberry, II
M.
Landlord's Address for Payment:
One Peachtree Pointe Associates, LLC
1545 Peachtree Street, Suite 250
Atlanta, Georgia 30309
N.
Tenant's Address for Notice:
T. Kent Smith, President
TeamStaff, Inc.
1545 Peachtree Street, Suite 340
Atlanta, Georgia
30309
with a copy to:
James D. Houston, General Counsel
TeamStaff, Inc.
18167 US Hwy 19 North, Suite 400
Clearwater, Florida 33764
O.
Common Areas: The Common Areas are those certain areas and
facilities
of the Building and the Parking Facilities and those certain
improvements to the
Land which are from time to time made available by the Landlord for
the common
use of tenants of the Building and their employees, clients,
customers,
licensees and invitees or for use by the public. Such facilities
and
improvements include the entrance lobbies, elevator lobbies,
outside sitting
areas, vending areas, sidewalks, walkways, tunnels, pedestrian
ways, driveways,
and the following areas unless they are reserved exclusively to a
particular
tenant or occupant: corridors and bathrooms.
Section 1.2 The exhibits enumerated in this section (if used) and
attached to
this Lease are incorporated in this Lease by this reference and are
to be
construed as a part of this Lease.
(a) Exhibit "A" -
Premises
-----------
(b) Exhibit "B" -
Legal Description
-----------
LANDLORD ___________ TENANT ____________
3
(c) Exhibit "C" -
Work Letter
-----------
(d) Exhibit "D" -
Rules and Regulations
-----------
(e) Exhibit "E" -
Special Stipulations
-----------
(f) Exhibit "F" -
Form of Lease Guaranty
-----------
ARTICLE 2
PREMISES AND QUIET ENJOYMENT
Section 2.1 Landlord has leased the Premises to Tenant, and Tenant
accepted same
from Landlord, for the Lease Term. During the Lease Term, Tenant
shall have the
right to use the Common Areas, as designated by Landlord from time
to time, in
common with others and in accordance with the rules and
regulations, attached
hereto as Exhibit "D" as the same may be amended ("Rules and
Regulations").
Section 2.2 Provided that Tenant fully and timely performs all the
terms of this
Lease on Tenant's part to be performed, including payment by Tenant
of all Rent,
Tenant shall have, hold and enjoy the Premises during the Lease
Term without
hindrance or disturbance from or by Landlord; subject, however, to
the terms,
conditions and provisions of this Lease and any ground lessee,
mortgage or deed
to secure debt on the Project.
Section 2.3 Landlord, or an affiliate, may construct or acquire an
additional
building or buildings in the vicinity of the Premises and operate
all buildings
as a complex of office buildings (the "Office Park"). In such case,
Landlord
shall have the right, but not the obligation, to obtain operating
and
maintenance services for the Office Park and allocate the costs
thereof among
the Buildings in the Office Park on any reasonable basis. Landlord
may also
aggregate Operating Costs (as defined in Section 5.2 hereof) for
the Office Park
and in such case Tenant's Share shall be determined by dividing the
Net Rentable
Area of the Premises by the net rentable area of all buildings
within the Office
Park, provided, however, that Tenant's Share of such aggregated
costs will not
exceed the Tenant's Share of Operating Costs attributable to the
Building.
Landlord discloses that Landlord or an affiliate of Landlord
intends to
construct another office building on a parcel of land located
immediately North
of the Land on which the Building sits. In such event the
construction of the
second building may cause noise, dust and other inconveniences to
the tenants of
the Building, but Landlord will use reasonable means to minimize
such
inconveniences, and reasonably respond to Tenant's requests should
Tenant's
quiet use and enjoyment of the Premises be interrupted for any
reason relative
to the construction. Notwithstanding the foregoing, Landlord shall
not aggregate
Operating Costs unless and until (a) certificates of occupancy are
issued for
any additional building or buildings within the Office Park; and
(b) such
aggregation is subject to the provisions of Section 5.3 hereof.
ARTICLE 3
LEASE TERM; COMMENCEMENT DATE;
DELIVERY AND ACCEPTANCE OF PREMISES
Section 3.1 The commencement date shall be the earlier of (a) the
date the
Premises are deemed available for occupancy pursuant to Section 3.2
hereof or
(b) the date Tenant, or anyone claiming by, through or under
Tenant, occupies
any portion of the Premises for the purpose of the conduct of
Tenant's (or such
other person's) business therein ("Commencement Date").
Section 3.2 Unless otherwise provided in this Lease, the Premises
shall be
deemed available for occupancy as soon as the following conditions
have been
met: (a) the Landlord's Work (as defined in Exhibit "C" attached
hereto) has
been substantially completed as reasonably determined by Landlord's
architect or
space planner in accordance with generally accepted building
standards; and (b)
either a certificate or certificates of occupancy (temporary or
final) or other
certificate permitting the lawful occupancy of the Premises has
been issued for
the Premises by the appropriate governmental authority; and (c) at
least five
(5) business days' notice of the occurrence or anticipated
occurrence of the
conditions in clauses (a) and (b) above has been given to Tenant.
Notwithstanding the foregoing, if there is a delay in the
availability for
occupancy of the Premises due to Tenant Delay (as defined in
Exhibit "C" hereof)
then the Premises shall be deemed available for occupancy on the
date on which
the Premises would have been available for occupancy but for such
Tenant Delay,
even though a certificate of occupancy or other certificate
permitting the
lawful occupancy of the Premises has not been issued or the
Leasehold
Improvements have not been commenced or completed.
Section 3.3 The Net Rentable Area of the Premises and the Building
are as stated
in Article I. The Net Rentable Area of the Premises shall be deemed
to be 1.17
times the floor or useable area within the Premises. If, due to
changes in the
Building or the Premises after the Commencement Date, the areas
vary from that
stated in Article I, Landlord may notify Tenant of the changed area
and Base
Rent and Tenant's
LANDLORD ___________ TENANT ____________
4
Share shall be recomputed based upon the actual Net Rentable Area
of the
Premises as so determined. The information in such notice shall be
conclusive
and binding on Tenant as to all matters set forth therein, unless
within ten
(10) days following delivery of such notice, Tenant contests any of
the matters
contained therein by notifying Landlord in writing of Tenant's
objections and
the reasons therefor.
Section 3.4 Tenant may not occupy the Premises prior to the
Commencement Date
without Landlord's express written consent and any entry by Tenant
shall be at
Tenant's sole cost and risk and subject to all of the terms of this
Lease;
provided however, that no such early entry shall change the
Commencement Date or
the Expiration Date. Notwithstanding the foregoing, Tenant shall be
entitled to
enter the Premises upon prior verbal approval by Landlord.
Section 3.5 Occupancy of the Premises or any portion thereof by
Tenant or anyone
claiming through or under Tenant for the conduct of Tenant's, or
such other
person's business therein shall be conclusive evidence that Tenant
and all
parties claiming through or under Tenant (a) have accepted the
Premises as
suitable for the purposes for which the Premises are leased
hereunder, and (b)
have waived any defects in the Premises, except for punchlist items
identified
to Landlord within thirty (30) days following the Commencement
Date; provided
however, that, if Landlord's Work has been constructed and
installed by to
prepare the Premises for Tenant's occupancy, Tenant's acceptance of
the Premises
as set forth above, shall occur upon Landlord's substantial
completion of
Landlord's Work, in the Premises in accordance with the terms of
Exhibit "C"
hereof. Landlord shall have no liability, except for the negligence
or willful
misconduct of Landlord, its agents, employees, representatives or
contractors to
Tenant or any of Tenant's agents, employees, licensees, servants or
invitees for
any injury or damage to any person or property due to the condition
or design
of, or any defect in, the Premises or the Project, including any
electrical,
plumbing or mechanical systems and equipment of the Premises or the
Project and
the condition of or any defect in the Land; and Tenant, for itself
and its
agents, employees, licensees, servants and invitees, expressly
assumes all risks
of injury or damage to person or property, either proximate or
remote, resulting
from the condition of the Premises or the Project, and agrees to
rely on
insurance to cover such risks.
ARTICLE 4
RENT
Section 4.1 Tenant shall pay to Landlord, without notice, demand,
offset or
deduction, except as expressly provided herein, in lawful money of
the United
States of America, at Landlord's Address for Payment, or at such
other place as
Landlord shall designate in writing from time to time: (a) the Base
Rent and the
Additional Rent in equal monthly installments, in advance, on the
first day of
each calendar month during the Lease Term, except that the first
monthly
installment of Base Rent and Additional Rent shall be paid in
advance on the
date of Tenant's execution of this Lease and applied to the first
installments
of Base Rent and such Additional Rent coming due under this Lease.
If either the
Commencement Date or the Expiration Date falls on a date other than
the first
day of a calendar month, the Rent due for such fractional month
shall be
prorated on a per diem basis between Landlord and Tenant so as to
charge Tenant
only for the portion of such fractional month falling within the
Lease Term.
Section 4.2 If any Rent is not paid to and received by Landlord
within five (5)
days after the date it is due, and such late payment occurs more
than once in
any twelve (12) month period, Tenant shall pay to Landlord a late
charge equal
to four (4%) percent of the amount of the late payment or $100.00,
whichever is
more, in order to cover the agreed administrative expense and
inconvenience to
Landlord of processing and dealing with late payments. This late
payment shall
apply to the second and all subsequent late payments in any twelve
(12) month
period. In addition all delinquent payments of Rent shall bear
interest until
paid at a rate per annum (the "Interest Rate") equal to the greater
of: (i)
twelve percent (12%), (ii) two percent (2%) above the prime rate of
interest
from time to time publicly announced by SunTrust Bank, Atlanta,
Georgia, or any
successor thereof, provided that if either Section 4.2(i) or (ii)
or both is at
any time greater than the maximum rate permitted under applicable
law, the
Interest Rate shall be the maximum rate permitted under applicable
law.
Section 4.3 A "Lease Year" shall mean a 12 month period commencing
on first day
of the month in which the Commencement Date occurs and any
anniversary thereof
and running for a period of one year, except that: (a) if the
Commencement Date
does not occur on the first day of a month, then the first Lease
Year shall not
include the period from the first day of the month in which the
Commencement
Date occurs until the Commencement Date, and (b) the final Lease
Year shall end
on the Expiration Date. If the first or last Lease Year is less
than twelve (12)
months, all amounts shall be prorated based upon a 365-day year.
LANDLORD ___________ TENANT ____________
5
ARTICLE 5
OPERATING COSTS
Section 5. 1 Tenant shall pay to Landlord, as Additional Rent, for
each year or
fractional year of the Lease Term, Tenant's share of the Operating
Costs (as
defined in Section 5.2 hereof)("Tenant's Operating Cost Payment"),
which payment
shall be calculated and paid as follows:
A. Commencing as of the first day of the Commencement Date, and as
of the first
day of January of each year during the Lease Term thereafter, (or
as soon after
as is practicable), Landlord shall furnish Tenant with a statement
("Landlord's
Operating Cost Estimate") setting forth Landlord's reasonable
estimate of
Operating Costs for the forthcoming year and Tenant's Operating
Cost Payment.
Notwithstanding the foregoing, Landlord shall only furnish Tenant
with the
Landlord's Operating Cost Estimate in the event that said statement
reflects an
increase in the Tenant's Operating Cost Payment from the preceding
calendar
year. Except during the first twelve (12) months of the Term (where
Operating
Costs are abated or included in the Base Rent), on the first day of
each
calendar month during such year, Tenant shall pay to Landlord
one-twelfth
(1/12th) of Tenant's Operating Cost Payment over and above the Base
Year
Operating Cost, in addition to Tenant's share of Operating Cost
already included
in the Base Rent pursuant to Section 1.1(K) of the Lease, based on
Landlord's
Operating Cost Estimate. If for any reason Landlord has not
provided Tenant with
Landlord's Operating Cost Estimate on the first day of January of
any year
during the Lease Term, then (a) until the first day of the calendar
month
following the month in which Tenant is given Landlord's Operating
Cost Estimate,
Tenant shall continue to pay to Landlord on the first day of each
calendar month
the sum, payable by Tenant under this Section 5.1 for the month of
December of
the preceding year and, (b) promptly after Landlord's Operating
Cost Estimate is
furnished to Tenant, if required as set forth above, Landlord shall
give notice
to Tenant if the installments of Tenant's Operating Cost Payments
previously
made for such year were greater than the installments of Tenant's
Operating
Costs Payments to be made for such year in accordance with
Landlord's Operating
Cost Estimate, and (a) if there shall be a deficiency, Tenant shall
pay the
amount thereof to Landlord within ten (10) days after the delivery
of Landlord's
Operating Cost Estimate, and (ii) on the first day of the calendar
month
following the month in which Landlord's Operating Cost Estimate is
given to
Tenant and on the first day of each calendar month throughout the
remainder of
such year and continuing until Landlord's Operating Cost Estimate
for the
following year is received, Tenant shall pay to Landlord an amount
equal to
one-twelfth (1/12th) of Tenant's Operating Cost Payment. The
foregoing
notwithstanding, Landlord shall have the right from time to time
during any year
(but no more frequently than twice during any calendar year) to
notify Tenant in
writing of any change in Landlord's Operating Cost Estimate, in
which event
Tenant's Operating Cost Payment, as previously estimated, shall be
adjusted to
reflect the amount shown in such notice and shall be effective, and
due from
Tenant, on the first day of the month following Landlord's giving
of such
notice.
B. In the event that the actual Operating Costs exceed Tenant's
Operating Cost
Payments for the preceding calendar year, commencing on the first
day of March
of the year 2007, and on the first day of March of each year during
the Lease
Term thereafter (or as soon after as is practicable), Landlord
shall furnish
Tenant with a statement of the actual Operating Costs, and Tenant's
Operating
Cost Payments for the preceding calendar year. Within thirty (30)
days after
Landlord's giving of such statement, Tenant shall make a lump sum
payment to
Landlord in the amount, if any, by which Tenant's Operating Costs
Payment for
such preceding year as shown on such Landlord's statement exceeds
the aggregate
of the monthly installments of Tenant's Operating Costs Payment
actually paid
during such preceding year.
C. If the Lease Term ends on a date other than the last day of
December, the
actual Operating Costs for the year in which the Expiration Date
occurs, shall
be prorated so that Tenant shall pay that portion of Tenant's
Operating Cost
Payment for such year represented by a fraction, the numerator of
which shall be
the number of days during such fractional year falling within the
Lease Term,
and the denominator of which is 365 (or 366, in the case of a leap
year). The
provisions of this Section 5.1 shall survive the Expiration Date or
any sooner
termination provided for in this Lease.
Section 5.2. Operating Costs: "Operating Costs," as that term is
used herein,
shall consist of all reasonable, actual expenses and costs (but
excluding
specific charges separately billed or chargeable to specific
tenants) of every
kind and nature which Landlord shall pay or incur because of or in
connection
with the ownership, maintenance, operation, management and repair
of the
Project, determined in accordance with generally accepted
accounting principles
consistently applied.
A. Operating Costs shall include, but not be limited, to the
following:
(a) Wages and salaries of personnel or entities (exclusive of
Landlord's executive personnel but including the building manager
and all on
site personnel whether full time or part time) and all costs and
fees of
personnel and entities engaged in the operation, repair,
maintenance, or
security of the Project, and payroll taxes, insurance, and benefits
relating to
employees working on or for the Project, prorated to the extent
they work at the
Project.
LANDLORD ___________ TENANT ____________
6
(b) The costs of all inventory, supplies, repair parts, furniture
and
materials (including work clothes and uniforms) used or reasonably
needed for
the operation, repair and maintenance of the Project.
(c) The cost of performance by Landlord's personnel, or of service
contractors under service or other agreements for, maintenance,
janitorial
services, security, access control, alarm service, window cleaning,
elevator
maintenance and landscaping for the Project, landscaping for any
land controlled
by Landlord in the immediate vicinity of the Project, and
landscaping for any
land within adjacent public rights-of-way which Landlord performs,
but as to any
service contractors owned by or affiliated with Landlord, only to
the extent
such fees do not exceed costs available from unaffiliated
third-party
contractors.
(d) All utilities for the Project, including water, sewer, power,
electricity, gas, fuel, lighting, telephone, cable and all other
utilities; and
all costs of providing air conditioning, heating and ventilation
for the
Building.
(e) The cost of all insurance carried on or related to the Project
by
or for Landlord, including property, casualty and liability
insurance applicable
to any part of the Project and to Landlord's equipment, fixtures
and personal
property used in connection therewith, including rent loss or
business
interruption insurance providing indemnity against such perils as
are commonly
insured against by prudent landlords, and such other insurance as
may be
required by any ground lessor or mortgagee of Landlord or which
Landlord
reasonably considers necessary in the operation of the Project,
together with
all appraisal and consultants' fees in connection with such
insurance.
(f) "Taxes" which for purposes of this Lease shall mean (i) all
property taxes, assessments, and other governmental charges,
applicable to or
assessed against the Project or any portion thereof, or applicable
to or
assessed against Landlord's personal property used in connection
therewith,
whether federal, state, county, or municipal and whether assessed
by taxing
districts or authorities presently taxing the Project or the
operation thereof
or by other taxing authorities subsequently created, or otherwise,
and any other
taxes and assessments attributable to or assessed against all or
any part of the
Project or its operation, and (ii) any reasonable expenses,
including fees and
disbursements of attorneys, tax consultants, arbitrators,
appraisers, experts
and other witnesses, incurred by Landlord in contesting any taxes
or the
assessed valuation of all or any part of the Project. If at any
time during the
Lease Term there shall be levied, assessed, or imposed on Landlord
or all or any
part of the Project by any governmental entity any general or
special ad valorem
or other charge or tax directly upon rents received under leases,
or if any fee,
tax, assessment, or other charge is imposed which is measured by or
based, in
whole or in part, upon such rents, or if any charge or tax is made
based
directly or indirectly upon the transactions represented by leases
or the
occupancy or use of the Project or any portion thereof, such taxes,
fees,
assessments or other charges shall be deemed to be Taxes.
Nevertheless, the
following shall not be included within the Taxes to be reimbursed
by Tenant as
part of the Operating Costs: (i) franchise, corporation, income or
net profits
tax, unless substituted for real estate taxes or imposed as
additional charges
in connection with the ownership of the Project, which may be
assessed against
Landlord or the Project or both, (ii) transfer taxes assessed
against Landlord
or the Project or both, (iii) penalties or interest on any late
payments of
Landlord and (iv) personal property taxes of Tenant or other
tenants in the
Project.
(g) Legal and accounting costs incurred by Landlord or paid by
Landlord
to third parties (exclusive of legal fees with respect to disputes
with
individual tenants, negotiations of tenant leases, or with respect
to the
ownership rather than the operation of the Project), appraisal
fees, consulting
fees, all other professional fees and disbursements and all
association dues.
(h) The cost of upkeep, repairs and maintenance of the Project as a
first class office building (excluding repairs and general
maintenance paid or
reimbursed by proceeds of insurance or by Tenant, other tenants of
the Project
or other third parties).
(i) Amortization of the cost of improvements or equipment which are
capital in nature and which are intended to reduce or avoid
increases in
Operating Costs of the Project, or in the reasonable estimation of
Landlord,
enhance the Project for the general benefit of tenants or occupants
thereof, or
are required by any governmental authority subsequent to the date
of this Lease.
All such costs, including actual interest, shall be amortized on a
straight-line
basis over the useful life of the capital investment, as reasonably
determined
by Landlord.
(j) The Project management office rent or rental value.
LANDLORD ___________ TENANT ____________
7
(k) Management fees and all items reimbursable to the Project
manager,
if any, pursuant to any management contract for the Project, in no
event,
however, to exceed five (5%) percent of gross receipts.
B. Notwithstanding the foregoing, Operating Costs shall not
include:
(a)
Reserves or expenses for any capital replacements or
improvements; except as described in Paragraph 5.2 above;
(b)
Costs of special services rendered to individual tenants for
which a special charge is made.
(c)
Interest and principal payments on loans or indebtedness secured
by the Building;
(d)
Cost of improvements for other tenants of the Building;
(e)
Legal fees, brokerage commissions, advertising costs, or other
related expenses incurred by Landlord in connection with the
leasing of space to
individual tenants in the Building or in procuring tenants for the
Building;
(f)
Repairs, alterations, additions, improvements, or replacements
made to rectify or correct any defect in the original design,
materials or
workmanship of the Building or common areas;
(g)
Damage and repairs attributable to fire or other casualty;
(h)
Damage and repairs necessitated by the gross negligence or
willful misconduct of Landlord, or its employees, contractors or
agents;
(i)
Salaries, wages, bonuses, or payments of any other kind to
officers and executives of Landlord and to any employees or
building staff above
the position of Building Manager to the extend that said personnel
do not
perform direct services in connection with the management,
operation, repair of
maintenance of the Building;
(j)
Landlord's general overhead expenses not related to the Building
including, but not limited to, the cost of Landlord's office space
located in
the Building;
(k)
Legal fees, accountant's fees and other expenses incurred in
connection with disputes with tenants or other occupants of the
Building or
associated with the enforcement of the terms of any leases with
tenants or the
defense of Landlord's title to or interest in the Building or any
part thereof;
(l)
Costs (including permit, license and inspection fees) incurred in
renovation or otherwise improving, decorating or painting, or
altering space for
individual tenants or vacant space in the Building;
(m)
Costs
incurred due to a violation by Landlord or any other
tenant of the Building of the terms and conditions of a lease;
(n)
Any other expense which, under generally accepted accounting
principles, would not be considered a reasonable maintenance or
operating
expense related to the Building;
(o)
Expenses for repair, replacements and general maintenance paid by
the proceeds of insurance or by Tenant or third parties, or through
condemnations awards;
(p)
Any cost or expense for which Landlord is entitled to be
separately reimbursed or for which Landlord received a credit from
any other
party; and
(q)
Any excess operating expenses incurred with respect to the
parking facilities for any special tenant requirements (e.g. night
parking for a
restaurant in the Building) or for special services required for
non-tenant
users of the parking facility.
Section 5.3 If the Building is not fully occupied (meaning that
less than ninety
five (95%) percent of the Net Rentable Area of the Building is
occupied by
tenants paying rent, inclusive of management office) during any
full or
fractional year of the Lease Term, the actual variable components
(e.g.
electrical, janitorial) of
LANDLORD ___________ TENANT ____________
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Operating Costs shall be adjusted for such year or period to an
amount which
Landlord estimates would have been incurred in Landlord's
reasonable judgment
had the Building been so occupied, and the adjusted amount will be
used to
determine Tenant's Operating Cost Payment. This adjustment will
also be
applicable to any Operating Cost aggregation relative to the Office
Park as set
forth in Section 2.3.
Section 5.4 If during the Lease Term any change occurs in either
the number of
square feet of the Net Rentable Area of the Premises or of the Net
Rentable Area
of the Building, Tenant's Share of Operating Costs (as defined in
Section 1.J.
hereof) shall be adjusted, effective as of the date of any such
change. Landlord
shall promptly notify Tenant in writing of such change and the
reason therefor.
Any changes made pursuant to this Section 5.4 shall not alter the
computation of
Operating Costs as provided in this Article 5, but, on and after
the date of any
such change, Tenant's Operating Costs Payment pursuant to Section
5. 1 A. shall
be computed upon Tenant's Share thereof, as adjusted. If such
estimated payments
of Tenant's Share are so adjusted during a year, a reconciliation
payment for
Tenant's Operating Cost Payments pursuant to this Article 5 for the
calendar
year in which such change occurs shall be computed pursuant to the
method set
forth in Section 5. 1 B, such computation to take into account the
daily
weighted average of Tenant's Share during such year.
ARTICLE 6
PARKING
Section 6.1 Landlord hereby grants to Tenant a license to use in
common with
other tenants and with the public the Parking Facilities. Tenant
shall be
entitled and obligated to purchase no less than two (2) parking
spaces in the
Parking Facilities for each 1,000 square feet of useable area of
the Premises
leased by Tenant (any fraction to be rounded down), said spaces of
which shall
be either unassigned or reserved spaces. Landlord may, but shall
not be
obligated to, offer Tenant any additional parking spaces, at
additional fees to
be determined by Landlord. If Tenant fails to observe the Rules and
Regulations
with respect to the Parking Facilities, then Landlord, at its
option, shall have
the right to treat such failure as a default under this Lease.
Furthermore, if
any of Tenant's employees, licensees or invitees or other person
using the
Parking Facilities with the authorization of Tenant violates the
Rules and
Regulations established from time to time by Landlord relative to
the use of the
Parking Facilities, or parks a vehicle so as to block another
parking space, or
parks in reserved or handicapped spaces without authorization, or
damages the
Parking Facilities or leaves trash or debris in the Parking
Facilities and
repeats such misconduct after oral or written warning (which may be
by warning
notice placed on a windshield) then Landlord may tow or otherwise
remove the
vehicle of the offender and terminate such offender's right to
utilize the
Parking Facilities.
Section 6.2 The fees for parking in unassigned spaces in the
Parking facilities
shall be determined by Landlord based on Landlord's estimate of the
market price
for covered, secured parking in the vicinity, and shall be paid
monthly. Such
fees may vary from time to time. Landlord may also make reserved
parking spaces
available from time to time subject to availability and at an
increased fee as
determined by Landlord. As of the Date of Lease, the monetary
parking fee is
$75.00 for unassigned parking spaces and $120.00 for reserved
spaces.
Section 6.3 If all or any portion of the Parking Facilities shall
be damaged or
rendered unusable by fire or other casualty or any taking pursuant
to eminent
domain proceeding (or deed in lieu thereof), and as a result
thereof Landlord or
the operator of the Parking Facilities is unable to make available
to Tenant the
parking provided for herein, then the number of cars which Tenant
shall be
entitled to park hereunder shall be proportionately reduced so that
the number
of cars which Tenant may park in the Parking Facilities after the
casualty or
condemnation in question shall bear the same ratio to the total
number of cars
which can be parked in the Parking Facilities at such time as the
number of cars
Tenant had the right to park in the Parking Facilities prior to
such casualty or
condemnation bore to the aggregate number of cars which could be
parked therein
at that time.
6.4 Section 6.4 Tenant and all of its employees, principals,
licensees and
invitees shall use the Parking Facilities at their sole risk, and
Landlord
assumes no responsibility for loss or damage to vehicles using the
Parking
Facilities.
ARTICLE 7
SERVICES
Section 7.1 A. During the Lease Term, Landlord shall furnish Tenant
with the
following services, subject to the Rules and Regulations: (a) hot
and cold water
in building standard bathrooms and chilled water in building
standard drinking
fountains; (b) electrical power sufficient for lighting the
Premises and for the
operation therein of typewriters, voice writers, calculating
machines, word
processing equipment, copying
LANDLORD ___________ TENANT ____________
9
machines, personal computers, and similar items of business
equipment which
consume, in the aggregate, less than five (5) watts per square foot
of Net
Rentable Area of the Premises and require a voltage of 120 volts
single phase or
less, (c) heating, ventilating or air-conditioning, as appropriate,
during
Business Hours (as defined in Section 7.1.D. herein) at such
temperatures and in
such amounts as customarily and seasonally provided to tenants
occupying
comparable space in office buildings in the Atlanta, Georgia
suburban area; (d)
electric lighting for the Common Areas of the Project; (c)
passenger elevator
service (if the Premises requires elevator service), in common with
others, for
access to and from the Premises twenty four (24) hours per day,
seven (7) days
per week; provided, however, that Landlord shall have the right to
limit the
number of (but not cease to operate all) elevators to be operated
after Business
Hours and on Saturdays, Sundays and Holidays; (f) janitorial
cleaning services
to standards established by Landlord, but excluding cleaning of
dishes and
cooking implements; (g) facilities for Tenant's loading, unloading,
delivery and
pick-up activities, including access thereto during Business Hours,
subject such
limitations as Landlord may impose; and (h) replacement, as
necessary, of all
building standard lamps and ballasts in building standard light
fixtures within
the Premises. All services referred to in this Section 7.1 A. shall
be provided
by Landlord and paid for by Tenant as part of Tenant's Operating
Costs Payment.
B. If Tenant requires air-conditioning, heating or other services,
including
cleaning services, routinely supplied by Landlord for hours or days
in addition
to the hours and days specified in Section 7.1 A., Landlord shall
make
reasonable efforts to provide such additional service after
reasonable prior
written request therefor from Tenant, and Tenant shall reimburse
Landlord for
the cost of such additional service; provided however, that, if any
other
tenants in the Building served by the equipment providing such
additional
service to the Premises request that Landlord concurrently provide
such service
to such other tenants, the cost of Landlord's providing such
additional and
concurrent service shall be prorated among all of the tenants
requesting such
service. Landlord shall have no obligation to provide any
additional service to
Tenant at any time Tenant is in default under this Lease beyond any
applicable
grace, notice or cure period provided with respect thereto by the
terms hereof,
unless Tenant pays to Landlord, in advance, the cost of such
additional service.
If any machinery or equipment which generates abnormal heat or
otherwise creates
unusual demands on the air-conditioning or heating system serving
the Premises
is used in the Premises and if Tenant has not, within five (5) days
after demand
from Landlord, taken such steps, at Tenant's expense, as shall be
necessary to
cease such adverse affect on the air-conditioning or heating
system, Landlord
shall have the right to install supplemental air-conditioning or
heating units
in the Premises, and the full cost of such supplemental units
(including the
cost of acquisition, installation, operation, use and maintenance
thereof) shall
be paid by Tenant to Landlord in advance or on demand.
C. If Tenant's requirements for or consumption of electricity
exceed the
capacities specified in clause (b) of Section 7.1 A. hereof,
Landlord shall, at
Tenant's sole cost and expense, make reasonable efforts to supply
such service
through the then-existing feeders and risers serving the Building
and the
Premises and shall bill Tenant periodically for the actual cost
incurred by
Landlord in providing such additional service and Tenant shall pay
each such
bill with the installment of Rent next due. The degree of such
additional
consumption and potential consumption by Tenant shall be determined
at
Landlord's election, by either or both (a) a survey of standard or
average
tenant usage of electricity in the Building performed by a
reputable consultant
selected by Landlord and paid for by Tenant, and (b) a separate
meter in the
Premises to be installed, maintained, and read by Landlord, all at
Tenant's sole
cost and expense. Tenant shall not install any electrical equipment
requiring
special wiring unless approved in advance by Landlord. At no time
shall use of
electricity in the Premises exceed the capacity of existing feeders
and risers
to or wiring in the Premises. Any risers or wiring necessary to
meet Tenant's
excess electrical requirements shall, upon Tenant's written
request, be
installed by Landlord, at Tenant's sole cost, if, in Landlord's
reasonable
judgment, the same are necessary and shall not (i) cause permanent
damage or
injury to the Project, the Building or the Premises, (ii) cause or
create a
dangerous or hazardous condition, (iii) entail excessive or
unreasonable
alterations, repairs or expenses or (iv) unreasonably interfere
with or disturb
other tenants or occupants of the Building.
D. For the purposes of this Lease "Business Hours" shall be from
8:00 a.m. to
6:00 p.m. on Monday through Friday, and 8:00 a.m. to 12:00 noon on
Saturdays,
except for holidays designated by Landlord which shall be
consistent with those
holidays designated by landlords of similar office buildings in the
Atlanta,
Georgia area.
Section 7.2 Landlord's obligation to furnish electrical and other
utility
services shall he subject to the rules and regulations of the
supplier of such
electricity or other utility services and the rules and regulations
of any
municipal or other governmental authority regulating the business
of providing
electricity and other utility services. Landlord shall have the
right, at
Landlord's option, upon not less than thirty (30) days prior
written notice to
Tenant (provided such prior notice will be less if either the
discontinuance of
such service is required by applicable law or Landlord receives
shorter notice
from the utility company providing electricity or other utility
service), to
discontinue electric or other utility services to the Premises and
LANDLORD ___________ TENANT ____________
10
arrange for a direct connection thereof through a public utility
supplying such
service. If Landlord gives such notice of discontinuance, Landlord
shall make
all necessary arrangements with the public utility supplying
electric or other
utility service directly to the Building to furnish electric or
other utility
service to the Premises, and, unless prohibited by law or
regulations of such
public utility, Landlord shall not discontinue electric or other
utility service
to the Premises until such public utility is ready to supply
service to the
Premises. Tenant shall, however, be responsible for contracting
promptly and
directly with such public utility supplying such service and for
paying all
deposits for, and all costs relating to, such service.
Section 7.3 No failure to furnish or any stoppage of the services
referred to in
this Article 7 resulting from any cause shall make Landlord liable
in any
respect for damages to any person, property or business, nor
subject Landlord
for liability to Tenant for any business loss or consequential
damages. No such
failure or stoppage be construed as an eviction of Tenant, or
entitle Tenant to
any abatement of Rent or other relief from any of Tenant's
obligations under
this Lease, except that in the event that any of the services
required to be
furnished by Landlord to the Premises (a) is interrupted by reason
of the gross
negligence or willful misconduct of Landlord and is not restored
within five (5)
business days, and if such interruption substantially and adversely
affects the
operation of Tenant's business in and from the Premises, then
Tenant shall be
entitled to cease operating in the Premises and receive an
abatement of Base
Rent for each full and/or partial day thereafter that such service
is not
restored and Tenant ceases to operate in the Premises until the
date of
restoration. Should any malfunction of any systems or facilities
occur within
the Project or should maintenance or alterations of such systems or
facilities
become necessary, Landlord shall make reasonable efforts to repair
the same with
reasonable diligence, and Tenant shall have no claim for rebate,
abatement of
Rent, or damages because of malfunctions or any such interruptions
in service.
Tenant shall not, however, be entitled to any abatement of Base
Rent if the
interruption or abatement in service or the failure by Landlord to
furnish such
service is the result of force majeure or is the result of an
interruption or
abatement in service of a public utility. By way of example only,
there shall be
no abatement of Base Rent if Landlord is unable to furnish water or
electricity
to the Premises if no water or electricity is then being made
available to the
Building by the supplying utility company or municipality. At the
time of the
loss of service, Tenant must give written notice promptly to
Landlord of the
loss of service and its claim for abatement and Tenant only shall
be entitled to
abatement of Base Rent in proportion to the area rendered unusable.
Landlord may
prevent or stop abatement by providing substantially the same
service in similar
quality and quantity by temporary or alternative means until the
cause of the
loss of service can be corrected. Such abatement shall be Tenant's
sole remedy
for loss of service and Tenant shall have no right to terminate
this Lease.
ARTICLE 8
ASSIGNMENT AND SUBLETTING
Section 8.1 Except as expressly permitted herein or as approved by
Landlord in
writing, such approval not to be unreasonably withheld, neither
Tenant nor its
legal representatives or successors in interest shall, by operation
of law or
otherwise, assign, mortgage, pledge, encumber or otherwise
transfer: (i) this
Lease or any part hereof, (ii) the interest of Tenant under this
Lease, or (iii)
the rent thereunder. The Premises or any part thereof shall not be
sublet,
occupied or used for any purpose by anyone other than Tenant,
without Tenant's
obtaining in each instance the prior written consent of Landlord in
the manner
hereinafter provided. Tenant shall not materially modify, extend,
or amend a
sublease previously consented to by Landlord without obtaining
Landlord's prior
written consent thereto. Landlord's consent to any assignment of
this Lease or
sublease of the Premises shall not waive, nor be deemed to waive
the provisions
of this Article 8 and all subsequent assignments and subleases
shall require the
prior written consent of Landlord in the manner hereinafter
provided, such
consent not to be unreasonably withheld.
Section 8.2 An assignment of this Lease shall be deemed to have
occurred (a) if
in a single transaction or in a series of transactions more than a
fifty (50%)
percent ownership interest in Tenant, whether stock, partnership,
interest or
otherwise, is transferred, diluted, reduced, or otherwise affected
with the
result being that the present holder or owners of Tenant, have less
than a fifty
(50%) percent interest in Tenant, or (b) if Tenant's obligations
under this
Lease are taken over or assumed in consideration of Tenant leasing
space in
another office building. The transfer of the outstanding capital
stock of any
corporate Tenant, through the NASDAQ over-the-counter market or any
recognized
national securities exchange shall not be included in the
calculation of such
fifty (50%) percent interest.
Section 8.3 Notwithstanding Sections 8.1 and 8.2, Tenant shall have
the right,
upon thirty (30) days' prior written notice to Landlord, to (a)
sublet no more
than fifty (50%) percent of the floor area of the Premises to any
related
corporation, successor corporation into which or with which Tenant
is merged or
consolidated or which acquired substantially all of Tenant's assets
and
property, or other entity which controls Tenant, is controlled by
Tenant, or is
under common control with Tenant (a "Permitted Transferee"); or (b)
assign this
LANDLORD ___________ TENANT ____________
11
Lease to a Permitted Transferee; provided that (i) such successor
corporation or
other entity assumes all of the obligations and liabilities of
Tenant and shall
have assets, capitalization and net worth at least equal to the
assets,
capitalization and net worth of Tenant as of the date of this Lease
as
determined by generally accepted accounting principles, and (ii)
Tenant shall
provide in its notice to Landlord the information required in
Section 8.4. For
the purpose hereof "control" means ownership of more than fifty
(50%) percent of
all the voting stock or legal and equitable interest in such
corporation or
entity.
Section 8.4 Should Tenant desire to assign this Lease or sublessee
the Premises
(or any part thereof) other than as permitted under Section 8.3,
Tenant shall
give Landlord written notice no later than thirty (30) days in
advance of the
proposed effective date of the proposed assignee or sublessee,
specifying (a)
the name, current address, and business of the proposed assignee or
sublessee,
(b) the amount and location of the space within the Premises
proposed to be so
subleased, (c) the proposed effective date and duration of the
assignment or
sublease, (d) the proposed rent and all consideration to be paid to
Tenant by
such assignee or sublessee, and (e) a financial statement, business
resume and
other information as Landlord may reasonably request to evaluate
the proposed
assignee or sublessee. Landlord shall have thirty (30) days
following receipt of
such notice and other information requested by Landlord to elect
one of the
following options: (i) to terminate this Lease as to the space so
affected as of
the proposed effective date set forth in Tenant's notice, in which
event Tenant
shall be relieved of all further obligations hereunder as to such
space, except
for obligations under Articles 17 and 22 and all other provisions
of this Lease
which expressly survive the termination hereof; provided, however,
that Tenant
may nullify Landlord's termination of this Lease by withdrawing its
request for
Landlord's consent to the proposed assignment or sublease in a
written notice
given to Landlord within seven (7) days following Landlord's notice
of
termination; or (ii) to permit Tenant to assign or sublease such
space;
provided, however, that, if the rent rate agreed upon between
Tenant and its
proposed sublessee or assignee is greater than the rent rate that
Tenant must
pay Landlord hereunder for that portion of the Premises, or if any
consideration
shall be promised to or received by Tenant in connection with such
proposed
assignment or sublease (in addition to rent), then one half of such
excess rent
and other consideration shall be considered Additional Rent owed by
Tenant to
Landlord (less brokerage commissions, attorneys fees and other
disbursements
reasonably incurred by Tenant for such assignment or sublease if
reasonably
acceptable evidence of such disbursements is delivered to
Landlord), and shall
be paid by Tenant to Landlord, in the case of excess rent, in the
same manner
that Tenant pays Base Rent and, in the case of any other
consideration, within
ten (10) business days after receipt thereof by Tenant; or (iii) to
refuse, in
Landlord's reasonable discretion, to consent to Tenant's assignment
or
subleasing of such space and to continue this Lease in full force
and effect as
to the entire Premises. The parties agree that Landlord may
reasonably refuse to
consent to an assignment or sublease if the proposed assignee or
subtenant is
not financially creditworthy, is a governmental authority or
agency, an
organization or person enjoying sovereign or diplomatic immunity, a
medical or
dental practice or health care provider or a user that will attract
a volume,
frequency or type of visitor or employee to the Building which is
not consistent
with the standards of a high quality office building or that will
impose an
excessive demand on or use of the facilities or services of the
Building. It
shall also be reasonable for Landlord to refuse to consent to any
assignment or
sublease if Tenant is then in default under this Lease, or such
assignment or
subletting would cause a default under another lease in the
Building or under
any ground lease, deed of trust, mortgage, restrictive covenant,
easement or
other encumbrance affecting the Project, or cause a violation of
any applicable
laws or regulations or insurance requirements affecting the
Project, or in any
way increase the risk of environmental damage to the Project, or if
the proposed
assignee or sublessee is at such time a tenant of the Building or a
person or
entity who or which is a prospective tenant of the Building or with
whom or
which Landlord is then dealing in connection with the leasing of
space in the
Building. If Landlord should fail to notify Tenant in writing of
such election
within the aforesaid thirty (30) day period, Landlord shall be
deemed to have
elected option (iii) above. Tenant agrees to reimburse Landlord for
legal fees
and any other reasonable costs incurred by Landlord in connection
with any
permitted assignment or sublease. Tenant shall deliver to Landlord
copies of all
documents executed in connection with any permitted assignment or
subletting,
which documents shall be in form and substance reasonably
satisfactory to
Landlord and which shall require any assignee to assume performance
of all terms
of this Lease to be performed by Tenant or any subtenant to comply
with all the
terms of this Lease to be performed by Tenant. No acceptance by
Landlord of any
Rent or any other sum of money from any assignee, sublessee or
other category of
transferee shall be deemed to constitute Landlord's consent to any
assignment,
sublease, or transfer.
Section 8.5 Any attempted assignment or sublease by Tenant in
violation of the
terms and provisions of this Article 8 shall be void and shall
constitute a
material breach of this Lease. In no event, shall any assignment,
subletting or
transfer, whether or not with Landlord's consent, relieve Tenant of
its primary
liability under this Lease for the entire Lease Term, and Tenant
shall in no way
be released from the full and complete performance of all the terms
hereof.
Further, Tenant's continuing primary liability for the Tenant's
obligations
under this Lease following an assignment or sublease shall not be
released,
impaired or
LANDLORD ___________ TENANT ____________
12
otherwise affected by Landlord's waiver of any provision of this
Lease or
Landlord's failure to enforce any provision of this Lease. If
Landlord takes
possession of the Premises before the expiration of the Lease Term
of this
Lease, Landlord shall have the right, at its option, to terminate
all subleases,
or to take over any sublease of the Premises or any portion thereof
and such
subtenant shall attorn to Landlord, as its landlord, under all the
terms and
obligations of such sublease occurring from and after such date,
but excluding
previous acts, omissions, negligence or defaults of Tenant and any
repair or
obligation in excess of available net insurance proceeds or
condemnation award.
Section 8.6 In any proceeding under Title 11 of the United States
Bankruptcy
Code relating to Bankruptcy, as amended (the "Bankruptcy Code"),
Tenant, for
itself and any Trustee in Bankruptcy or Debtor in Possession agrees
as follows:
A. The Debtor in Possession or Trustee in Bankruptcy shall not be
entitled to
seek, request or obtain an extension of time to assume or reject
this Lease
pursuant to 11 U.S.C. Section 365(d)(3).
B. Adequate assurance of future performance pursuant to 11 U.S.C.
Section 365(b)
by a proposed assignee of this Lease shall include, at a minimum,
that: (i) the
Trustee or any other proposed assignee of this Lease shall deliver
to Landlord a
security deposit in an amount equal to at least three (3) months
Rent accruing
under the Lease; (ii) any proposed assignee of the Lease shall
provide to
Landlord an audited financial statement, dated no later than six
(6) months
prior to the effective date of such proposed assignment or sublease
with no
material change therein as of the effective date, which financial
statement
shall show the proposed assignee to have a net worth equal to at
least thirty
six (36) months Rent accruing under the Lease, or, in the
alternative, the
proposed assignee shall provide a guarantor of such proposed
assignee's
obligations under the Lease, which guarantor shall provide an
audited financial
statement meeting the requirements of (ii) above and shall execute
and deliver
to Landlord a guaranty agreement in form and substance acceptable
to Landlord;
and (iii) any proposed assignee shall grant to Landlord a security
interest in
favor of Landlord in all furniture, fixtures, and other personal
property to be
used by such proposed assignee in the Premises.
C. The parties agree, that for the purposes of the Bankruptcy Code
relating to
(a) the obligation of the Trustee to provide adequate assurance
that the Trustee
will "promptly" cure defaults and compensate Landlord for actual
pecuniary loss,
the word "promptly" shall mean that cure of defaults and
compensation will occur
no later than sixty (60) days following the filing of any motion or
application
to assume this Lease; and (b) the obligation of the Trustee to
compensate or to
provide adequate assurance that the Trustee will promptly
compensate Landlord
for "actual pecuniary loss," the term "actual pecuniary loss" shall
mean, in
addition to any other provisions contained herein relating to
Landlord's damages
upon default, the immediate payment of all delinquent Rent and
other payments
due Landlord.
Section 8.7 The term "Landlord," as used in this Lease, so far as
covenants or
obligations on the part of Landlord are concerned, shall be limited
to mean and
include only the owner or owners, at the time in question, of the
fee title to,
or a lessee's interest in a ground lease of, the Land or the
Building. In the
event of any transfer or conveyance of the Project by Landlord, the
Landlord
herein named (and in case of any subsequent transfers or
conveyances, the then
grantor) shall be relieved from and after the date of such transfer
or
conveyance of liability as respects the performance of any
covenants or
obligations on the part of Landlord contained in this Lease
thereafter to be
performed without further agreement. Nothing in this Lease shall
impair
Landlord's right to sell, assign or convey the Project, the
Premises or its
interest therein.
ARTICLE 9
REPAIRS
Section 9.1 Except for ordinary wear and tear, casualty and
condemnation and
except as otherwise provided in Section 9.2, Landlord shall perform
all
maintenance and make all repairs and replacements to the Premises
(including the
Leasehold Improvements) and such costs shall be included within the
Operating
Cost. Nevertheless, Tenant shall pay to Landlord the actual and
reasonable cost
(including a fee equal to fifteen percent (15%) of actual costs to
cover
Landlord's overhead and manager) for maintenance, repairs and
replacements
within the Premises caused or necessitated by the willful
misconduct or
negligence of Tenant or its agents to the extent the cost thereof
is not
collectible under Landlord's insurance. Amounts payable by Tenant
pursuant to
this Section 9.1 shall be payable on demand after receipt of an
invoice therefor
from Landlord. Landlord has no obligation and has made no promise
to maintain,
improve, repair, decorate, or paint the Premises or any part
thereof, except as
specifically set forth in this Lease. Landlord shall have no
obligation to
maintain, repair or replace any furniture, furnishings, fixtures or
personal
property of Tenant.
LANDLORD ___________ TENANT ____________
13
Section 9.2 Tenant shall keep the Premises (including the Leasehold
Improvements) in good order and in a safe, neat and clean
condition. Except as
provided in Section 10.1 or specifically consented to by Landlord,
Tenant shall
not perform any maintenance or repair work or make any replacement
in or to the
Premises (including the Leasehold Improvements) but rather shall
promptly notify
Landlord of the need for such maintenance, repair or replacement so
that
Landlord may proceed to perform the same pursuant to the provisions
of Section
9.1. In the event Landlord specifically consents to the performance
of any
maintenance or the making of any repairs or replacements by Tenant
and Tenant
fails to promptly commence and diligently pursue the performance of
such
maintenance or the making of such repairs or replacements, then
Landlord, at its
option, may perform such maintenance or make such repairs and
Tenant shall
reimburse Landlord, on demand after Tenant receives an invoice
therefor, the
actual cost thereof plus a fee equal to fifteen percent (15%) of
the actual
costs to cover overhead and a fee for Landlord's agent or manager.
Section 9.3 All repairs made by Tenant pursuant to Section 9.2
shall be
performed in a good and workmanlike manner by contractors or other
repair
personnel selected by Tenant from an approved list of contractors
and repair
personnel maintained by Landlord in the Project's management
office; provided,
however, that neither Tenant nor its contractors or repair
personnel shall be
permitted to do any work affecting the Central Areas of the
Building. In no
event shall such work be done for Landlord's account or in a manner
which allows
any liens to be filed in violation of Article 11. To the extent any
repairs
involve the making of alterations to the Premises, Tenant shall
comply with the
provisions of Article 10.
Section 9.4 Subject to the other provisions of this Lease imposing
obligations
regarding repair upon Tenant, Landlord shall repair all machinery
and equipment
necessary to provide the services of Landlord described in Article
7 (provided
that Tenant shall pay the costs of any repair to such systems or
any part
thereof damaged by the negligence or willful misconduct of Tenant
or Tenant's
employees, customers, clients, agents, licensees and invitees) and
for repair of
all portions of the Project which do not comprise a part of the
Premises and are
not leased to others.
ARTICLE 10
ALTERATIONS
Section 10.1 Tenant shall not make any alterations or renovations
to the
Premises without first obtaining Landlord's written consent in each
instance.
Consent for merely "cosmetic" alterations is not required. If
Landlord
unreasonably withholds its consent after having been provided with
full
information and details as herein required, then Tenant may, as its
sole remedy
and at its sole cost and risk, proceed with the alteration or
renovation at its
sole risk and expense utilizing a contractor approved by Landlord
as provided
herein. Landlord shall not be deemed unreasonable by refusing to
consent to any
alteration which: (i) is or may be visible from the exterior of the
Building or
the Project, (ii) which may affect the building structure,
exterior, load
bearing members, walls, stairwells, escalators, or any electrical,
mechanical,
HVAC communication, alarm or other systems and equipment in the
Building or
Project or which are prohibited by any underlying ground lease or
mortgage.
Should Tenant desire to make any alterations to the Premises,
Tenant shall
submit all plans and specifications for such proposed alterations
to Landlord
for Landlord's review before Tenant allows any such work to
commence, and
Landlord shall approve or disapprove such plans and specifications
for any of
the reasons set forth in this Section 10.1 or for any other reason
reasonably
deemed sufficient by Landlord. Tenant shall select and use only
contractors,
subcontractors or other repair personnel from those listed on
Landlord's
approved list maintained by Landlord in the Project management
office or
otherwise approved by Landlord. Upon Tenant's receipt of written
approval from
Landlord and any required approval of any mortgagee or lessor of
Landlord, and
upon Tenant's payment to Landlord of (a) a reasonable fee
prescribed by Landlord
for the work of Landlord and Landlord's employees and
representatives in
reviewing and approving such plans and specifications and (b) the
fees, if any
charged by any mortgagee or lessor of Landlord for such review and
approval,
Tenant shall have the right to proceed with the construction of all
approved
alterations, but only so long as such alterations are in strict
compliance with
the plans and specifications so approved by Landlord and with the
provisions of
this Article 10. All alterations, whether directly or indirectly
caused or
necessitated by Tenant's alteration, shall be made at Tenant's sole
cost and
expense, either by Tenant's contractors or, at Landlord's option,
by Landlord on
terms reasonably satisfactory to Tenant, including a fee of fifteen
percent
(15%) of the actual costs of such work to cover Landlord's overhead
and a fee
for Landlord's agent or manager in supervising and coordinating
such work. If
Tenant's contractor performs such work, a fee of seven and one-half
percent
(7.5%) of the actual costs of such work shall be paid to Landlord
as a fee for
Landlord's agent or manager in supervising and coordinating such
work to cover
overhead and a fee for Landlord's agent or manager for supervising
and
coordinating such work. In no event, however, shall anyone other
than Landlord
or Landlord's employees or representatives perform work to be done
which affects
the Central Areas of the Building.
LANDLORD ___________ TENANT ____________
14
Section 10.2 All construction, alterations and repair work done by
or for Tenant
shall (a) be performed in such a manner as to maintain harmonious
labor
relations; (b) not adversely affect the safety of the Project, the
Building or
the Premises or the systems thereof and not affect the Central
Areas of the
Building; (c) comply with all building, safety, fire, plumbing,
electrical, and
other codes and governmental and insurance requirements; (d) not
result in any
usage in excess of building standard of wa
