**Exhibit 10.34**

 

**LEASE****AGREEMENT**

 

**CONCOURSE**

 

**ATLANTA,****GEORGIA**

 

 
| LANDLORD: |   | 485  PROPERTIES, LLC                      |
|-----------|--------|-------------------------------------------|
|      |   |                                      |
| TENANT:   |   | FIRST  HORIZON PHARMACEUTICAL CORPORATION |
|      |   |                                      |
| BUILDING: |   | CORPORATE  CENTER V                       |
|      |   |                                      |
| FLOORS:   |   | 17  AND 18                                |
|      |   |                                      |
| SQ.  FT.: |   | 50,994                                    |
|      |   |                                      |
| TERM:     |   | EIGHT  (8) YEARS                     |

 

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**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 |   |

 

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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 byLandlord

 

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

 

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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”                |

 

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LEASE AGREEMENTCONCOURSE

 

THIS LEASE AGREEMENT (this “Lease”), made this 7thday of February***,*** 2006, by and between 485 PROPERTIES, LLC (“Landlord”),a Delaware limited liability company, which has as its address for all purposeshereunder 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 Delawarecorporation, 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 andleases 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 spaceplans 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) dayfollowing the date the Tenant Improvements have been Substantially Complete orthe date the Tenant Improvements would have been Substantially Complete in the

 

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absenceof Tenant Delay; (ii) the date Tenant occupies the Premises or any portionthereof for the purpose of conducting business therefrom; or (iii) July 15,2006 (the earliest to occur of (i), (ii) or (ii) being hereinafterreferred to as the “Commencement Date”), and shall end at midnight on the lastday of the ninety-sixth (96th) full calendar month following the CommencementDate (the “Expiration Date”), unless sooner terminated as herein provided.Notwithstanding the foregoing, this Lease shall be effective and enforceableupon 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 Leaseexpiration or termination, the period between the last twelve (12) calendarmonth period and said expiration or termination; provided, however, that thefirst Lease Year shall commence on the Commencement Date and expire on the lastday of the twelfth (12th) full calendar month following theCommencement Date.

 

(d)           The Building and the land upon which said Building is located (which includescertain parking facilities serving the Building), more particularly describedon Exhibit “B”, attached hereto and by this reference incorporatedherein, is herein referred to as the “Property”.

 

(e)           The Premises shall include the appurtenant right to use, in common withothers, public lobbies, entrances, stairs, corridors, elevators, and otherpublic 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 thePremises used for shafts, pipes, conduits, ducts, telephone ducts and equipment,electric or other utilities, sinks or other Building facilities, and the usethereof 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 thereduction or elimination of Tenant’s light, air or view will not affect thisLease.

 

2.             RENT

 

(a)           Tenant shall pay to Landlord at P.O. Box 402862, Atlanta, Georgia30384-2862 or at such other place Landlord designates, without demand,deduction or setoff, an annual rental for each Lease Year of the Term as setforth below in this Paragraph 2(a), due and payable in equal monthlyinstallments (the “Monthly Rental”) in advance on the first (1st) day of eachcalendar month during the Term, except that Tenant shall pay the firstinstallment of Monthly Rental upon the execution and delivery of this Lease byTenant. 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 |   |

 

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(b)           If the Term commences at any time other than the first day of a monthor terminates at any time other than the last day of a month, the amount ofRent due from Tenant shall be proportionately adjusted based on that portion ofthe month that this Lease is in effect.

 

(c)           The term “Rent”, as used herein, shall mean Monthly Rental, Tenant’sShare 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 initiallycashed or deposited by a person or entity other than Landlord (albeit onLandlord’s authority), then, for any and all purposes under this Lease; (i) Landlordshall not be deemed to have accepted such payment until ten (10) daysafter the date on which Landlord shall have actually received such funds, and (ii) Landlordshall be deemed to have accepted such payment if (and only if) within said ten (10) dayperiod, Landlord shall not have refunded (or attempted to refund) such paymentto Tenant. Nothing contained in the immediately preceding sentence shall beconstrued to place Tenant in default of Tenant’s obligation to pay Rent if andfor so long as Tenant shall timely pay the Rent required pursuant to this Leasein 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’sShare of Operating Costs in excess of the Initial Operating Costs. Thesepayments shall be in addition to and not in lieu of any other payments due fromTenant hereunder. The “Initial Operating Costs” shall be, for the purposes ofthis Lease, the actual Operating Costs for calendar year 2006, adjusted pursuantto 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 relatedareas (such as, by way of illustration but not limitation, the parking areas),computed on an accrual basis and including all expenses, costs, anddisbursements 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 personsengaged in the management, operation, repair, security or maintenance of theProperty and Building, including, but not limited to, fringe benefits, taxes,insurance and any other benefits relating thereto;

 

(ii)           All supplies and materials used in theoperation and maintenance of the Property and Building;

 

(iii)          Cost of water, sewage, electricity and otherutilities furnished in connection with the operation of the Building;

 

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(iv)          Cost of all service agreements andmaintenance for the Property and Building and the equipment therein, including,but not limited to, trash removal, security services, alarm services, windowcleaning, janitorial service, HVAC maintenance, elevator maintenance, andgrounds maintenance, and cost of all services described in subparagraph 8(a) below;

 

(v)           Cost of all insurance relating to theProperty and Building including, but not limited to, the cost of casualty andliability insurance applicable to the Property and Building and Landlord’spersonal property used in connection therewith;

 

(vi)          All Taxes (as hereinafter defined) and anyreasonable consultants fees incurred with respect to issues or concernsinvolving the taxes or the Building, the Property, or both;

 

(vii)         Cost of repairs and general maintenance ofthe interior and exterior of the Property and Building (including, but notlimited to, light bulbs and glass breakage; the redecorating, repainting,recarpeting and other such work of any common areas; heating, ventilation andair conditioning equipment; plumbing and electrical equipment; and elevators),parking areas, and landscaping;

 

(viii)        A management fee and other expenses incurredfor the general operation and management of the Property and Building, not toexceed 3% of gross revenues from the Building;

 

(ix)           An amortization cost due to any capitalexpenditures incurred (i) which have the effect of reducing or limitingOperating Costs of the Property and Building, if such reduction or limitationinures to Tenant’s benefit (but only to the extent and in the amount that suchOperating Costs of the Property and Building are reduced); (ii) which may berequired by governmental authority or by Landlord’s insurance carrier; or (iii) whichare designed to protect or enhance the health, safety or welfare of the tenantsin 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 andexpenses incurred by Landlord in connection with the management, maintenanceand repair of the Property; and

 

(xii)          Anything which could be classified as anOperating Cost under generally accepted accounting principles, consistentlyapplied, but not specified or expressly set forth hereunder; provided such costis reasonably consistent with operating costs of similar class A officebuildings in the central perimeter submarket of Atlanta, Georgia.

 

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Excludedfrom “Operating Costs” are:

 

(i)            net recoveries which reduce expenses incurredby the Landlord including, but not limited to, those pursuant to legal orcontractual warranties;

 

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

 

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

 

(iv)          costs of any replacement of to the structureof 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 tobe capitalized under generally accepted accounting principles (“GAAP”);

 

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

 

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

 

(vii)         costs and expenses incurred when Tenant wasnot a Tenant of the Building, such as the original construction costs of theBuilding, development or complex;

 

(viii)        costs and expenses incurred with respect toany risk which, according to the terms and conditions of this Lease, is notTenant’s responsibility;

 

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

 

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

 

(xi)           costs and expenses in connection withservices or other benefits provided to another tenant or occupant of theBuilding;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(xxii)        costs for charitable or politicalcontributions;

 

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

 

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

 

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

 

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

 

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

 

(xxvii)      Landlord’s actual costs incurred in bringingthe Property into compliance with applicable laws with which the Property isnot in compliance as of the date hereof, including, without limitation,building codes, fire safety regulations and the Americans with DisabilitiesAct.

 

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

 

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

 

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

 

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

 

(c)           The term “Tenant’s Share” shall mean theproportion that the rentable square footage of the Premises bears toninety-five percent (95%) of the Total Building Rentable Area, or the averagepercentage of the Total Building Rentable Area actually leased in the Buildingfor any calendar year, if such average is greater than ninety-five percent(95%) of the Total Building Rentable Area. The average shall be determined byadding together the total leased space on the last day of each month during thecalendar year in question and dividing by twelve (12). Tenant’s Share is usedin this Lease to determine the portion of Operating Costs payable by Tenant, ona per square foot per annum basis. Notwithstanding anything to the contrarycontained herein, if the Building is not fully occupied during any calendaryear, appropriate adjustments shall be made to determine Operating Costs asthough the Building had been fully occupied in such calendar year for theentire calendar year.

 

(d)           Prior to January 1 of each calendar yearafter the calendar year in which this Lease is executed (or as soon thereafteras practical), Landlord shall provide Tenant with the projected Operating Costsfor such current calendar year, and Tenant shall thereafter pay Tenant’s Shareof projected Operating Costs for operating the Property and Building in excessof the Initial Operating Costs. Such projected Operating Costs in excess of theInitial Operating Costs shall be payable in advance on a monthly basis bypaying one-twelfth (l/12th) of such amount during each month of such respectivecalendar 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 untilthe month after such comparison is given. Not later than May 1, 2007,Landlord shall provide Tenant with an

 

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unauditedstatement of the actual Operating Costs for 2006 and Landlord shall, no laterthan September 1 (or as soon thereafter as practical) after each calendaryear during the Term thereafter, provide Tenant an unaudited statement of suchyear’s actual Operating Costs. If actual Operating Costs are greater thanprojected Operating Costs, Tenant shall pay Landlord, within thirty (30) daysof such statement’s receipt, Tenant’s Share of the difference thereof. If suchyear’s projected Operating Costs are greater than the actual Operating Costs,Landlord shall credit Tenant, within thirty (30) days of such statementissuance, Tenant’s Share of the difference between projected Operating Costsand actual Operating Costs.

 

(e)           If this Lease commences at any time other than the first day of a calendaryear or terminates at any time other than the last day of a calendar year, theamount of Operating Costs due from Tenant shall be proportionately adjustedbased on that portion of the year that this Lease was in effect.

 

(f)            Tenant’s payments of Operating Costs shallnot be deemed payments of base rental under any governmental wage and pricecontrols or analogous governmental actions affecting the amount of Rent whichLandlord may charge Tenant for the Premises.

 

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

 

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

 

(i)            Within ninety (90) days after Tenant receivesLandlord’s statement of any calendar year’s actual Operating Costs as describedin subparagraph (d) above, Tenant may contest such statement byproviding written notice to Landlord, provided that there does not then existan Event of Default hereunder. If no such contest is made by written notice toLandlord within such ninety (90) day period, such Operating Expenses statementshall be binding upon Tenant in all respects. If Tenant timely contests suchOperating Expenses statement, Tenant shall have the right to inspect andexamine, at reasonable times during normal business hours, Landlord’s books ofaccount and records pertaining to the Operating Expenses, all at Tenant’s solecost and expense. Prior to any such audit being performed, Tenant and itsauditor shall execute a confidentiality agreement in form and substancereasonably acceptable to Landlord. Such audit

 

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shallbe conducted at the offices of the Building manager where such records are keptwithin thirty (30) days after the date of Tenant’s notice. Such audit may beinitially conducted, at Tenant’s expense, by a qualified employee of Tenant, oran independent auditor of Tenant’s choice (whose compensation in no event shallbe contingent upon the results of such audit or the amount of any refundreceived by Tenant). Landlord and/or Landlord’s Building manager shallcooperate with Tenant and/or Tenant’s representatives with respect to any suchspecific 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 ofsame, as applicable. Tenant shall notify Landlord of the results of such auditin writing. Landlord may have an agent or employee present during suchinspection and audit. Landlord shall have the right to dispute the results ofTenant’s audit, by written notice delivered to Tenant within thirty (30) daysfollowing Landlord’s receipt of the results of such audit. Any such disputeshall be resolved by an independent certified public accountant mutuallysatisfactory to Landlord and Tenant (whose compensation in no event shall becontingent upon the results of such audit or the amount of any refund receivedby Tenant), or pursuant to the applicable rules of the AmericanArbitration Association if Landlord and Tenant cannot agree on the identity ofsuch accountant, with the cost of such accountant being shared by Landlord andTenant. If the audit by Tenant shall ultimately result in a determination(whether by agreement between Landlord and Tenant or by arbitration) thatTenant has underpaid Landlord for its share of Operating Expenses, Tenant shallpay the additional amount owed to Landlord within thirty (30) days of suchultimate resolution. If the audit by Tenant shall ultimately result in adetermination (whether by agreement between Landlord and Tenant or byarbitration) that Tenant has overpaid Landlord for its share of OperatingExpenses, such overpayment shall be applied to the next accruing installment(s)of Monthly Rental due from Tenant, until such credit is depleted, except thatif the ultimate result of any such audit of Operating Expenses for the lastyear of the Term shows that Tenant has overpaid Landlord for its share ofOperating Expenses, Landlord shall directly reimburse Tenant such amount withinthirty (30) days of such ultimate resolution. If the audit by Tenant shallultimately result in a determination that Tenant has overpaid Landlord for itsshare of Operating Expenses by more than five percent (5%) of Tenant’s share ofthe Operating Expenses, then Landlord shall pay the cost of such audit. Tenanthereby agrees to keep the results of any such audit confidential, and torequire Tenant’s auditor and its employees and each of their respectiveattorneys and advisors to likewise keep the results of such audit confidential.In particular, but without limitation, Tenant agrees that: (i) Tenantshall not disclose the results of any such audit to any past, current orprospective tenant of the Building; and (ii) Tenant shall require, thatits auditors, attorneys and anyone associated with such parties shall notdisclose the results of such audit to any past, current or prospective tenantof Landlord in the Building; provided, however, that Landlord hereby agreesthat nothing in items (i) or (ii) above shall preclude Tenant fromdisclosing the results of such audit in any judicial or quasi-judicialproceeding, or pursuant to court order or discovery request, or to any currentor prospective assignee or sub lessee of Tenant, or to any agent,representative, or employee of Landlord who or which requests the same or asrequired 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 allstandards of said Exhibit “C”. Without limiting the generality of theforegoing, Tenant shall timely apply for all permits and

 

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

 

Subject to Tenant Delay and Force Majeure, and provided that this Leaseis executed by Tenant prior to January 31, 2006, Landlord shall permitTenant 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 loadingdocks, common areas, electricity, air conditioning, security and elevators atno charge to Tenant or its contractors. All provisions of this Lease shallapply with respect to such early access by Tenant other than the obligation topay 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 attachedas Exhibit “D”, by this reference incorporated herein.

 

6.             USE

 

Tenant shall use the Premises for professional, executive officepurposes (including data center and call center uses), generally in accordancewith the manner of use by other tenants in the Building. The occupancy rate ofthe Premises shall in no event be more than one (1) person per 200rentable square feet within said Premises. Tenant’s use of the Premises shallnot violate any ordinance, law or regulation of any governmental body, or the “Rules andRegulations” of Landlord (the “Rules”) as set forth in Exhibit “E”attached hereto and made a part hereof, or cause an unreasonable amount ofuse of any of the services provided in the Building. Tenant shall conduct itsbusiness in the manner and according to the generally accepted business principlesof 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 thereinin a first-class condition, and will not commit or permit waste therein. Anyrepair work, maintenance and any alterations permitted by Landlord in thePremises (i) shall be done at Tenant’s sole cost and expense; (ii) shallbe done by Landlord’s employees or agents or, with Landlord’s consent, bypersons requested by Tenant; and (iii) shall first be consented to by Landlord.Tenant shall, at Tenant’s expense (but under the direction of Landlord andperformed by Landlord’s employees or agents, or with Landlord’s consent, bypersons requested by Tenant and consented to by Landlord), promptly repair anyinjury or damage to the Premises or Building caused by the misuse or neglectthereof by Tenant, by Tenant’s contractors, sub-contractors, customers,employees, licensees, agents, or invitees. Tenant shall give prompt notice toLandlord 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, structuralalterations, additions or improvements) in or about the Premises and will notdo anything to or on the Premises which will increase the rate of insurance onthe Building or the Property. All alterations, additions or improvements of a permanentnature made or installed by Tenant to the Premises shall become the property of

 

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Landlord at the expiration or early termination of this Lease. Exceptfor any typical office improvements or fixtures (including HVAC equipment),Landlord reserves the right to require Tenant to remove any improvements oradditions made to the Premises by Tenant and to repair and restore the Premisesto their condition prior to such alteration, addition or improvement,reasonable wear and tear, unrepaired casualty and condemnation excepted, unlessLandlord has agreed at or prior to the time Tenant requests the right to makesuch alteration, addition or improvement that such item need not be removed byTenant at the expiration or early termination of the Term.

 

(c)           No later than the last day of the Term, Tenant will remove Tenant’spersonal property and repair injury done by or in connection with installationor 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 gooda condition at the beginning of the Term, reasonable wear and tear, unrepairedcasualty and condemnation excepted. All property of Tenant remaining in thePremises after expiration or early termination of the Term shall be deemedconclusively abandoned and may be removed by Landlord, and Tenant shallreimburse Landlord for the cost of removing the same, subject however, toLandlord’s right to require Tenant to remove any improvements or additions madeto 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 orworkers consented to by Landlord prior to the time such work is commenced.Landlord may condition its consent upon its receipt from such contractorsor workers of acceptable (i) lien waivers; and (ii) evidence ofliability and personal property insurance coverage in amounts and withinsurance carriers satisfactory to Landlord. Tenant shall promptly remove anylien or claim of lien for material or labor claimed against the Premises orBuilding, or both, by such contractors or workers if such claim should arise, andTenant hereby indemnifies and holds Landlord harmless from and against any andall 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 tosuch claims or liens.

 

(e)           All personal property brought into the Premises by Tenant, itsemployees, licensees and invitees shall be at the sole risk of Tenant, andLandlord shall not be liable for theft thereof or of money deposited therein orfor any damages thereto, such theft or damage being the sole responsibility ofTenant.

 

8.            SERVICES

 

(a)           Landlord shall cause to be furnished the following services (the costof which services are included within Operating Costs):

 

(i)            Elevator service for passenger and deliveryneeds;

 

(ii)           During the hours from 8:00 AM to 6:00 PM onweekdays and 8:00 AM to 1:00 PM on Saturdays, air conditioning during summeroperations and heat during winter operations at temperature levels similar toother first class office buildings in the Atlanta area, but consistentwith and subject to all Federal and local energy conservation regulations.Landlord will provide Tenant with additional heating and air conditioningservices so long as Tenant notifies Landlord of its desire for such services nolater than 3:00 PM

 

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

 

(iii)          Public restrooms, including the furnishing ofsoap, paper towels, and toilet tissue;

 

(iv)          Either hot and cold or tempered running waterfor 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 andpolishing, window washing, smudge removal and Venetian blind cleaning asappropriate;

 

(vi)          The replacement of building standardfluorescent lamps and ballasts as needed;

 

(vii)         Repairs and maintenance, for maintaining ingood order at all times the exterior walls, exterior windows, exterior doorsand roof of the Building, public corridors, stairs, elevators, storage rooms,restrooms, the heating, ventilating and air conditioning systems, electricaland plumbing systems of the Building, and the walks, paving and landscaping surroundingthe Building;

 

(viii)        General grounds care;

 

(ix)           General management, including supervision,inspections and management functions; and

 

(x)            Electricity for the Premises, Building andProperty at a design load not less than six (6) watts per rentable squarefoot.

 

(b)           The services provided in Paragraph 8(a) arepredicated on and are in anticipation of the use of the Premises as follows:

 

(i)            Services shall be provided for the Buildingduring normal business hours as described in the Rules;

 

(ii)           HVAC design is based on sustained outsidetemperatures being no higher than 95 degrees Fahrenheit and no lower than 14degrees Fahrenheit with sustained occupancy of the Premises by no more than oneperson per 200 square feet of floor area and heat generated by electricallighting and fixtures not to exceed3.0 watts per square foot;

 

(iii)          Electric power usage and consumption for thePremises shall be based on lighting of the Premises during normal businesshours on a level suitable for normal office use and power for small desk-topmachines and devices using no more than 110 volt, 20 amp circuits (allowableload of 15 amps). Heavier

 

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

 

(iv)          Should Tenant’s total rated electrical designload per square foot in the Premises exceed the Building standard ratedelectrical design load of six (6) watts per rentable square foot, on a perrentable square foot basis, as accurately determined by Landlord from time totime, for either low or high voltage electrical consumption, or if Tenant’selectrical design requires low voltage or high voltage circuits in excess ofTenant’s share of the Building standard circuits, as such share is accuratelydetermined by Landlord in Landlord’s reasonable judgment, Landlord may (atTenant’s expense), if reasonably possible, install within the Building one (1) additionalhigh voltage panel and/or one (1) additional low voltage panel withassociated transformer (the “Additional Electrical Equipment”) as necessary toaccommodate the aforesaid requirements. If the Additional Electrical Equipmentis installed because Tenant’s low or high voltage rated electrical design loadexceeds the applicable Building standard rated electrical design load (on a persquare foot basis) of six (6) watts per rentable square foot, then a metermay also be added by Landlord (at Tenant’s expense) to measure theelectricity provided through the Additional Electrical Equipment.

 

(c)           If Tenant uses any services in an amount or for a period in excess ofthat provided for herein, Landlord also reserves the right to charge Tenantreimbursement for the cost of such added services. The charge for after hoursheating and air conditioning shall be $30.00 for each hour outside the timesset forth in Section 8(a)(ii). Landlord reserves the right to install separatemetering devices to determine such excessive periods and/or amounts, at Tenant’ssole cost and expense. If there is disagreement as to such additional charge,the opinion of the appropriate local utility company or an independentprofessional engineering firm shall prevail.

 

(d)           Except as set forth in subparagraph (f) below, Landlord shall notbe liable for any damages and Tenant shall have no right of set-off orreduction in Rent as a result of the installation, use, malfunction, orinterruption of use of any equipment in connection with the furnishing ofservices referred to herein, including, but not limited to, any interruption inservices by any cause beyond the immediate control of the Landlord; providedhowever, Landlord shall exercise due care in furnishing adequate anduninterrupted services. Without limitation on the foregoing, under no circumstancesshall Landlord incur liability for damages caused directly or indirectly by anymalfunction of Tenant’s computer systems resulting from or arising out of thefailure or malfunction of any electrical, air conditioning or other systemserving the Building, and Tenant hereby expressly waives the right to make anysuch claim against Landlord.

 

(e)           There may be available in the Building a shared communicationssystems service (the “Shared Service”), upon terms, conditions and fees to beagreed upon by Tenant and the party providing such Shared Service. NeitherLandlord nor any manager of the Building shall be liable to Tenant for damagesif the furnishing of any such Shared Service is disrupted, terminated or diminishedin any manner, nor shall any disruption, diminution, or cessation relieveTenant from the performance of any of Tenant’s covenants, conditions andagreements under this Lease, nor shall any disruption, diminution or cessationconstitute constructive eviction or entitle Tenant to an

 

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abatementof Rent. Tenant holds Landlord and any such manager harmless from any claimsTenant may have arising out of or connected with such cessation orinterruption. If Tenant elects not to use the Shared Service, and Tenant hastelephone or other such equipment installed at Tenant’s own direction, suchsystem shall not (i) cause the Building to violate any municipal safetycodes or ordinances, including, but not limited to, fire safety codes; (ii) causedamage to the Building; (iii) require an amount of electrical or otherservices unreasonably in excess of the requirements for customarybusiness-telephone systems; or (iv) impact upon the normal use, functionand operation of the Shared Service. If Tenant elects not to use or be a part ofthe Shared Service, Tenant shall not use any wiring or other equipment which isa part of the Shared Service without the prior, written consent of theprovider of such Shared Service. If Tenant uses any such wiring or equipmentwithout such consent, Tenant shall be liable for, and shall pay to the providerof such services on demand, (i) the cost of such use; (ii) the costof repairing or replacing any wiring or equipment damaged or altered by suchuse; and (iii) any other damages caused by such use.

 

(f)            Notwithstanding the foregoing, in the eventthat (i) Landlord fails to provide services to Tenant as required by thisLease for a continuous period in excess of five (5) consecutive businessdays after receiving written notice of such failure, (ii) such failure ison account of a reason within Landlord’s reasonable control, and (iii) suchfailure materially interferes with Tenant’s use and enjoyment of all or aportion of the Premises then:

 

(i)            Landlord shall provide Tenant a creditagainst Monthly Rental next owing, in an amount equal to the Monthly Rentalunder this Lease (with the amount of such Monthly Rental being prorated in theevent such failure does not affect Tenant’s ability to use or enjoy the entirePremises) from and after the expiration of such five (5) business dayperiod and until such time as Landlord resumes providing such service orservices to Tenant; provided, however, Tenant shall not be entitled to any suchcredit in the event that such failure to provide services is caused orcontributed 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 suchfailure to provide services is a failure under Section 8(a)(ii), and suchfailure cannot be remedied within four hours of such failure, then upon Tenant’srequest, Landlord shall provide temporary HVAC.

 

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

 

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

 

9.            DESTRUCTION OR DAMAGE TO PREMISES

 

(a)           If the Premises or the Building are totally destroyed (or sosubstantially damaged as to be untenantable in the determination of theArchitect) by storm, fire, earthquake or other casualty, Landlord shall havethe option to:

 

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(i)            Terminate this Lease as of the date of theoccurrence of the storm, earthquake, fire or other casualty by giving notice toTenant within sixty (60) days from the date of such damage or destruction; or

 

(ii)           Commence the process of restoration of thePremises to a tenantable condition within sixty (60) days from the date ofreceipt by Landlord of all of the insurance proceeds paid with respect to suchcasualty, and proceed with duediligence to complete said restoration of the Premises. If Landlord chooses to restorethe Premises, Rent shall abate with respect to the untenantable portion of thePremises from the date of such casualty until the date of SubstantialCompletion thereof.

 

IfLandlord fails to complete such restoration within one hundred fifty (150) daysof the date of the casualty, this Lease may be terminated as of the dateof the casualty upon notice from either party to the other, given not more thanten (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 andeffect and Rent shall commence upon delivery of the Premises to Tenant in astate of Substantial Completion.

 

(b)           If the Premises are damaged but not rendered untenantable for Tenant’s businessuse by any event set forth in Paragraph 9(a) above, Rent shall abate inthe proportion the Premises have been made untenantable. Landlord shall restorethe Premises expeditiously, and upon the date of restoration, full Rent shallcommence.

 

(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, itscontractors, subcontractors, agents, employees, guests or invitees.

 

10.           DEFAULT BY TENANT; LANDLORD’S REMEDIES

 

(a)           The occurrence of any of the following shallconstitute an Event of Default hereunder by Tenant:

 

(i)            The Rent or any other sum of money due ofTenant hereunder is not paid within five (5) days following the later of (i) thedate that the same is due or (ii) written notice from Landlord that thesame is due, provided, however, that in no event shall Landlord be obligated toprovide Tenant any such written notice on more than two (2) occasionsduring any twelve (12) month period;

 

(ii)           Any petition is filed by or against Tenantunder any section or chapter of the National or Federal Bankruptcy Act or any other applicable Federal or Statebankruptcy, insolvency or other similar law, and, in the case of a petitionfiled against Tenant, such petition is not dismissed within thirty (30) daysafter the date of such filing; if Tenant shall become insolvent or transferproperty to defraud creditors; if Tenant shall make an assignment for thebenefit of creditors; or if receiver is appointed for any of Tenant’s assets;

 

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(iii)          Tenant fails to bond off or otherwise removeany lien filed against the Premises or the Building by reason of Tenant’sactions, within ten (10) days after Tenant has notice of the filing ofsuch lien; or

 

(iv)          Tenant fails to observe, perform andkeep the covenants, agreements, provisions, stipulations, conditions and Rules hereincontained to be observed, performed and kept by Tenant (other than the failureto pay when due any Rent or anyother sum of money becoming due Landlord hereunder, which under allcircumstances is governed by and subject to Paragraph 10(a)(i) herein),and persists in such failure after thirty (30) days written notice by Landlordrequiring that Tenant remedy, correct, desist or comply (or if any such failureto 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 continuouslyproceeds with the rectification of the failure to comply on the part ofTenant and, in all such events, cures such failure to comply on the part ofTenant no later than sixty (60) days after such notice).

 

(b)           Upon the occurrence of an Event of Default, Landlord shall have theoption to do and perform any one or more of the following:

 

(i)            Terminate this Lease, in which event Tenantshall immediately surrender the Premises to Landlord. If Tenant shall fail todo so, Landlord may, without further notice and without prejudice to any otherremedy Landlord may have, enter upon the Premises without the requirementof resorting to the dispossessory procedures set forth in O.C.G.A. §§ 44-7-50etseq. and expel or remove Tenant and Tenant’s effects withoutbeing liable for any claim for trespass or damages therefor. Upon any suchtermination, Tenant shall remain liable to Landlord for damages, due andpayable monthly on the day Rent would have been payable hereunder, in an amountequal to the Rent and any other amounts which would have been owing by Tenantfor the balance of the Term, had this Lease not been terminated, less the netproceeds, if any, of any reletting of the Premises by Landlord, after deductingall of Landlord’s costs and expenses (including, without limitation,advertising expenses and professional fees) incurred inconnection 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 calculatedon the current rate being paid by Tenant, and other sums which in Landlord’sreasonable determination would become due and payable during the remainder ofthe Term (including, but not limited to, increases in Rent pursuant toParagraph 2(b) and 3(d) herein), discounted to present value by usinga reasonable discount rate selected by Landlord, to be due and payableimmediately. Upon such acceleration of such amounts, Tenant agrees to pay thesame at once, together with all Rent and other amounts theretofore due, atLandlord’s address as provided herein; provided however, that such paymentshall not constitute a penalty or forfeiture but shall constitute liquidateddamages for

 

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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 areimpossible to ascertain and that the amount set forth above is a reasonableestimate thereof). Upon making such payment, Tenant shall receive from Landlordall rents received by Landlord from other tenants renting the Premises duringthe Term, provided that the monies to which Tenant shall so become entitledshall in no event exceed the entire amount actually paid by Tenant to Landlordpursuant 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 thePremises. The acceptance of such payment by Landlord shall not constitute awaiver of rights or remedies to Landlord for any failure of Tenant thereafteroccurring to comply with any term, provision, condition or covenant of thisLease; and/or

 

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

 

(iv)          As agent of Tenant, do whatever Tenant isobligated to do under this Lease, including, but not limited to, entering thePremises, without being liable to prosecution or any claims for damages, inorder to accomplish this purpose. Tenant agrees to reimburse Landlordimmediately upon demand for any expenses which Landlord may incur in thuseffecting compliance with this Lease on behalf of Tenant. Landlord shall not beliable for any damages

 

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resulting to Tenant from such action, whether caused by the negligenceof Landlord or otherwise.

 

(c)           Pursuit by Landlord of any of the foregoing remedies shall not precludethe pursuit of general or special damages incurred, or of any of the otherremedies provided herein, at law or in equity.

 

(d)           No act or thing done by Landlord or Landlord’s employees or agentsduring 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 byLandlord of any particular remedy hereunder, at law or in equity, shallpreclude 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 covenantor condition contained in this Lease or any of the Rules now or hereafteradopted by Landlord, shall not prevent a subsequent act, which would haveoriginally constituted a violation, from having all the force and effect of anoriginal violation. The receipt by Landlord of Rent with knowledge of thebreach of any covenant in this Lease shall not be deemed a waiver of suchbreach.

 

11.           ASSIGNMENT AND SUBLETTING

 

(a)           Tenant shall not sublet any part of the Premises, nor assign thisLease or any interest herein, nor, once any such sublet or assignment isconsented to by Landlord, amend or modify the terms of such sublet orassignment, without the prior consent of Landlord, which consent shall not beunreasonably withheld, delayed or conditioned. Without limiting the generalityof the foregoing, Landlord may deny consent to an assignment or subleaseif, by way of illustration but not limitation, (i) the financial statementsof the proposed assignee or sublessee are unsatisfactory, or (ii) theproposed assignment or sublease provides for rental or other payment for suchuse, occupancy or utilization based, in whole or in part, on the net income or profitsderived by any person or entity from the Premises leased, used, occupied orutilized.

 

(b)            Consent by Landlord to one assignment orsublease shall not destroy or waive this provision, and all later assignmentsand subleases shall likewise be made only upon prior consent of Landlord. If asublease or assignment is consented to by Landlord, any sublessees or assigneesshall become liable directly to Landlord for all obligations of Tenanthereunder without relieving or in any way modifying Tenant’s liabilityhereunder. If Tenant notifies Landlord of Tenant’s intent to sublease or assignthis Lease, Landlord shall within fifteen (15) days following receipt of suchnotice, together with a copy of the proposed sublease or assignment andtogether with information regarding the proposed subtenant or assignee indetail reasonably sufficient to enable Landlord to evaluate the proposedsubtenant or assignee (i) consent to such proposed subletting; or (ii) denysuch consent, giving reasons for denying such consent at the time of the denial.If Landlord gives its consent to any such assignment or sublease, afterdeducting Tenant’s out of pocket costs, including marketing costs, leasingcommissions, rent abatement and tenant improvements, fifty percent (50%) of anyrent or other cost collected by Tenant from the assignee or subtenant for allor any portion of the Premises over and above the Rent payable by Tenant forsuch space shall be due and payable, and shall be paid, to Landlord. If thearea of Premises is reduced or a sublease or assignment is made as hereinprovided, Tenant shall pay Landlord a charge equal to the actual costs incurredby Landlord, in Landlord’s reasonable judgment (including, but not limited to,the use and time of Landlord’s personnel), for all of the reasonably necessarylegal and

 

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

 

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

 

12.           CONDEMNATION

 

If the Premises (or a part ofsuch Premises such that the Premises, in the reasonable judgment of theArchitect, are untenantable) are taken by eminent domain or other similarproceeding or are conveyed in lieu of such taking, this Lease shall expire onthe date when title or right of possession vests, and Rent paid for any periodbeyond said date shall be repaid to Tenant. If there is a partial taking wherethis Lease is not terminated, the Rent shall be adjusted in proportion to thesquare feet of Premises taken, as determined by Architect. In either event,Landlord shall be entitled, and Tenant shall not have any right, to claim anyaward made in any condemnation proceeding, action or ruling relating to theBuilding or the Property; provided, however, Tenant shall be entitled to make aclaim in any condemnation proceeding, action or ruling relating to the Buildingfor Tenant’s moving expenses and the unamortized value of leaseholdimprovements in the Premises actually paid for by Tenant, to the extent suchclaim does not in any manner impact upon or reduce Landlord’s claim or award insuch condemnation proceeding, action or ruling. Landlord shall have, inLandlord’s sole discretion, the option of terminating this Lease if any suchcondemnation, action, ruling or conveyance in lieu thereof makes continuationof Landlord’s use of the Building economically unfeasible.

 

13.           INSPECTIONS

 

Landlord, its agents or employees may enter the Premises atreasonable hours and upon reasonable notice (which notice may be bytelephone) to Tenant except in the event of an emergency to (a) exhibit thePremises to prospective purchasers or tenants of the Premises or the Building; (b) inspectthe 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 systemsserving the Building which run through the Premises.

 

14.           SUBORDINATION

 

(a)           This Lease shall be subject and subordinate to any underlying landleases or deeds to secure debt which may now or hereafter affect thisLease, the Building or the Property and also to all renewals, modifications,extensions, consolidations, and replacements of

 

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suchunderlying land leases and deeds to secure debt. Neither the Building nor theProperty nor any portion thereof is currently subject to any such land lease ordeed to secure debt. In confirmation of the subordination set forth in thisParagraph 14, Tenant shall, at Landlord’s request, execute and deliver suchfurther 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 suchunderlying land leases executed after the date hereof, provided that Landlordobtains a nondisturbance agreement for the benefit of Tenant from suchMortgagee or Lessor. Notwithstanding the foregoing, Landlord or such Mortgageeor Lessor shall have the right to subordinate or cause to be subordinated, inwhole or in part, any such underlying land leases or deeds to secure debt tothis Lease (but not in respect to priority of entitlement of insurance orcondemnation proceeds). If any such underlying land leases or deeds to securedebt terminate for any reason or any such deeds to secure debt are foreclosedor a conveyance in lieu of foreclosure is made for any reason, Tenant shall,notwithstanding any subordination, deliver to Mortgagee within ten (10) daysof written request an attornment agreement, providing that such Tenant shallcontinue 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 eventof exercise of the power of sale or conveyance in lieu of foreclosure under anydeed to secure debt, Tenant shall at the option of the purchaser at suchforeclosure or other sale, attorn to such purchaser and recognize such personas Landlord under this Lease. The institution of any suit, action or other proceedingby a Mortgagee or a sale of the Property pursuant to the powers granted to aMortgagee under its deed to secure debt, shall not, by operation of law orotherwise, result in the cancellation or the termination of this Lease or ofthe obligations of Tenant hereunder.

 

(c)           If such purchaser requests and accepts such attornment, from and aftersuch attornment, Tenant shall have the same remedies against such purchaser forthe breach of an agreement contained in this Lease that Tenant might have hadagainst Landlord if the deed to secure debt had not been terminated orforeclosed, except such purchaser shall not be (i) liable for any act oromission of the prior Landlord; (ii) subject to any offsets or defenseswhich Tenant might have against the prior Landlord; or (iii) bound by anyRent or security deposit which Tenant might have paid in advance to the priorLandlord.

 

15.           INDEMNIFICATION AND HOLD HARMLESS

 

(a)           Tenant shall defend, protect, indemnify and hold harmless Landlord andLandlord’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 anddisbursements) arising from (i) the use of the Premises, the Building orthe 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 theConcourse project, and (ii) any act, neglect, fault, willful misconduct oromission of Tenant or Tenant’s agents, employees or contractors, or from anybreach 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 byLandlord, or (iii) any action or proceeding brought on account of anymatter in items (i) or (ii). If any action or proceeding is broughtagainst Landlord by reason of any such claim, upon notice from Landlord, Tenantshall defend the same at Tenant’s expense by counsel reasonably satisfactory toLandlord. As a material part of the consideration to Landlord, Tenanthereby releases Landlord

 

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andLandlord’s agents and employees from responsibility for, waives its entireclaim of recovery for and assumes all risk of (x) damage to property or injuryto persons in or about the Premises, the Building or the Concourse project fromany cause whatsoever (except to the extent caused by the negligence or willfulmisconduct of Landlord or Landlord’s agents or employees or by the failure ofLandlord to observe any of the terms and conditions of this Lease), or (x) lossresulting from business interruption or loss of income at the Premises. Theobligations of Tenant under this Paragraph 15(a) shall survive anytermination of this Lease with respect to any events occurring or circumstancesexisting prior to such termination.

 

(b)           Landlord shall indemnify and hold harmless Tenant and Tenant’s agentsand employees against and from any and all claims, suits, liabilities,judgments, costs, demands, causes of action and expenses (including, withoutlimitation, reasonable attorney’s fees) arising from the negligence or willfulmisconduct of Landlord or Landlord’s agents or employees or from the breach ofthis Lease by Landlord.

 

(c)           The foregoing indemnities shall not relieve any insurance carrier ofits obligations under any policies required to be carried by either partypursuant to this Lease, to the extent that such policies cover the peril oroccurrence that results in the claim that is subject to the foregoingindemnities.

 

16.          INSURANCE

 

(a)           Tenant shall carry during the Term (and any other period during whichTenant is in possession of the Premises, with all premiums paid prior to thedue date at Tenant’s sole expense) (i) all risk coverage insuranceinsuring Tenant’s interest in its improvements to the Premises and any and allfurniture, equipment, supplies, contents and other property owned, leased, heldor possessed by Tenant and contained therein, such insurance coverage to be inan amount equal to the full insurable value of such improvements and property,as such may increase from time to time, (ii) worker’s compensationand employer’s liability insurance as required by applicable law, (iii) commercialgeneral liability coverage for injury to or death of a person or persons andfor damage to property occasioned by or arising out of any construction workbeing done on the Premises, or arising out of the condition, use, or occupancyof the Premises, or other portions of the Building or Property, the limits ofsuch 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 peroccurrence, plus excess coverage of not less than Five Million Dollars($5,000,000) combined single limit for bodily injury and property damage peroccurrence, (iv) insurance against thefts within the Premises, theBuilding or any project within which the Building is located, and (v) businessinterruption insurance with a limit of liability representing loss of at leasttwelve (12) months of income. Tenant shall also maintain and provide such otherrequired evidence to Landlord of any other form of insurance whichLandlord, acting reasonably, requires from time to time in form, in amounts,and for risks against which a prudent tenant would insure. Landlord and Tenantshall each have included in all policies of insurance respectively obtained bythem with respect to the Building or Premises a waiver by the insurer of allright of subrogation against the other in connection with any loss or damageinsured against. All said insurance policies shall be carried with companieslicensed to do business in the State of Georgia reasonably satisfactory toLandlord and rated in Best’s Insurance Guide, or any successor thereto (or, ifthere be none, an organization having a national reputation) as having ageneral policyholder rating of “A-” and a financial rating of at least “X.” Allsuch policies shall be noncancellable except after twenty (20) days’ writtennotice to Landlord.

 

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Eachpolicy shall name Landlord, Landlord’s property manager and any other persondesignated by Landlord as additional insureds and provide that it is primaryto, and not contributing with, any policy carried by Landlord, Landlord’sproperty manager, or other designated person covering the same loss. AtLandlord’s request, duly executed certificates of such insurance shall bedelivered 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 comprehensivepublic liability insurance coverage with respect to the Property and propertyinsurance coverage on an all-risk extended coverage basis with respect to theProperty, in such amounts, with such insurance providers and under such termsas such insurance coverage is typically carried and maintained by institutionalowners of Class A properties similar to the Property in the Atlanta, Georgiaoffice market. Notwithstanding the foregoing, Landlord shall have the right toself- insure (“Self-Insure”) all or any part of any of said requiredinsurance coverages, in Landlord’s sole discretion, so long as suchself-insuring party maintains has a net worth of not less than Fifty MillionDollars ($50,000,000.00) as shown on financial statements for the most recentlyconcluded fiscal year prepared by an independent certified public accountant inaccordance with generally accepted accounting principles consistently appliedand provided to Tenant upon request. “Self-Insure” shall mean that Landlord isitself acting as though it were the insurance company providing the insurancerequired under the provisions hereof, and Landlord shall pay amounts due inlieu of insurance proceeds because of self-insurance which amounts shall be treatedas insurance proceeds for all purposes under this Lease. In the event that Landlordelects to Self-Insure, and an event or claim occurs for which a defense and/orcoverage would have been available from an insurance company, with respect to aloss or damage which Landlord would otherwise be required to insure against asprovided above, Landlord shall (i) undertake the defense of any suchclaim, including a defense of Tenant, at Landlord’s sole cost and expense, and (ii) useits own funds to pay any claim or replace any property or otherwise provide thefunding which would have been available from insurance proceeds but for suchelection by Landlord to Self-Insure.

 

(c)           Landlord and Tenant hereby mutually waive any claim against the other andits agents for any loss or damage to any of their property located on or aboutthe Premises, the Building or the Concourse project that is caused by orresults from perils covered by property insurance carried by the respectiveparties, to the extent of the proceeds of such insurance actually received withrespect to such loss or damage, whether or not due to the negligence of the otherparty or its agents. Because the foregoing waivers will preclude the assignmentof 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 ofthese mutual waivers and have their insurance policies endorsed to prevent theinvalidation of the insurance coverage because of these waivers. Nothing inthis Paragraph 16(c) shall relieve a party of liability to the other for failureto carry insurance required by this Lease.

 

17.          REMEDIES CUMULATIVE

 

The rights given to Landlord and Tenant herein are in addition to anyrights that may be given to Landlord or Tenant by any statute or underlaw.

 

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18.                                   ENTIRE AGREEMENT - NO WAIVER

 

This Lease contains the entire agreement of the parties hereto and norepresentations, inducements, promises or agreements, oral or otherwise,between the parties not embodied herein shall be of any force and effect. The failureof either party to insist in any instance on strict performance of any covenantor condition hereof, or to exercise any option herein contained, shall not beconstrued as a waiver of such covenant, condition or option in any otherinstance. This Lease cannot be changed or terminated orally, and can bemodified only in writing, executed by each party hereto.

 

19.                                   HOLDING OVER

 

If Tenant remains in possession of the Premises after expiration of theTerm, or after any termination of this Lease by Landlord, with Landlord’sacquiescence and without any written agreement between the parties, Tenantshall be a tenant at sufferance and such tenancy shall be subject to all theprovisions hereof, except that the Monthly Rental for said holdover periodshall be (i) 150% of the amount of Rent due in the last month of the Termduring the first three (3) months of the holdover period, and (ii) doublethe amount of Rent due in the last month of the Term for the remainder of theholdover period. There shall be no renewal of this Lease by operation of law.Nothing in this Paragraph shall be construed as a consent by Landlord to thepossession of the Premises by Tenant after the expiration of the Term or anytermination of this Lease by Landlord, or as an exclusive remedy in the eventof a holdover. This Paragraph 19 shall survive the termination of this Lease,by lapse of time or otherwise. Notwithstanding the above, Tenant shall have theoption to extend the Term for up to six (6) months (the “Short TermHoldover Option”) by providing Landlord with written notice of its intent toexercise the Short Term Holdover Option no later than one hundred eighty (180)days prior to the otherwise effective Expiration Date. Monthly Rental duringany such period shall be 110% of the amount of Rent due in the monthimmediately preceding the otherwise effective Expiration Date.

 

20.                                   HEADINGS

 

The headings in this Lease are included for convenience only and shallnot be taken into consideration in any construction or interpretation of any part ofthis Lease.

 

21.                                   NOTICES

 

(a)                                  Any notice, request or consent by eitherparty to the other hereunder shall be valid only if in writing and shall bedeemed to be duly given only if hand-delivered, or sent by certified mail or bya recognized national overnight delivery service which has a receipt of noticeas a part of its delivery function. Such notices shall be addressed (i) ifto Tenant, at the Premises after the Commencement Date and, prior to theCommencement Date, at:

 

6195 Shiloh Road

Alpharetta, GA 30005

Attention: Leslie Zacks, General Counsel

 

with, in both cases, a copy to:

 

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Paul Hastings

600 Peachtree Street NE

Twenty-fourth Floor

Atlanta, GA 30308

Attn: Tinley Anderson, Esq.

 

and(ii) if to Landlord, at Landlord’s address set forth above, or at suchother address for either party as that party may designate by notice tothe other. Notice shall be deemed given, if delivered personally, upon deliverythereof, and if mailed, upon the mailing thereof.

 

(b)                                 Tenant hereby appoints as its agent toreceive service of all dispossessory or distraint proceedings, Tenant’sadministrator of the Premises at the time of any such service.

 

22.                                   HEIRS, SUCCESSORS, AND ASSIGNS - PARTIES

 

(a)                                  This Lease shall bind and inure to thebenefit of Landlord and Tenant, and their respective successors, heirs, legalrepresentatives and assigns. The term “Landlord” as used in this Lease meansonly the owner (or the ground lessee) for the time being of the Property and Buildingof which the Premises are a part, so that in the event of any sale or sales ofsaid Property (or of any lease thereof), Landlord named herein shall be andhereby is entirely released of all covenants and obligations of Landlordhereunder accruing thereafter, and it shall be deemed without further agreementthat the purchaser, or the lessee, as the case may be, has assumed andagreed to carry out any and all covenants and obligations of Landlord hereunderduring the period such party has possession of the Property and Building. Ifthe Property and Building are severed as to ownership by sale and/or lease, theowner of the entire Building or lessee of the entire Building that has theright to lease space in the Building to tenants shall be deemed “Landlord”.Tenant shall be bound to any such succeeding party for performance by Tenant ofall the terms, covenants, and conditions of this Lease and agrees to executeany attornment agreement not in conflict with the terms and provisions of thisLease at the request of any such party.

 

(b)                                 The parties “Landlord” and “Tenant” andpronouns relating thereto, as used herein, shall include male, female, singularand plural, corporation, partnership or individual, as may fit theparticular parties.

 

23.                                   ATTORNEY’S FEES

 

If Landlord has to engage or consult with an attorney as a result of orin connection with a failure by Tenant to pay any Rent asand when due under this Lease, then Tenant shall owe to Landlord, in additionto and not in lieu of any other amounts due hereunder, and shall pay within ten(10) days after demand for payment therefor is made, all such attorneysfees incurred by Landlord. Also, if any law suit or court action betweenLandlord and Tenant arises out of or under this Lease, the prevailing party insuch law suit or court action shall be entitled to and shall collect from thenon-prevailing party the reasonable attorney’s fees and court costs actuallyincurred by the prevailing party with respect to said lawsuit or court action.

 

24.                                   TIME OF ESSENCE

 

TIME IS OF THE ESSENCE OF THIS LEASE.

 

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25.                              NO ESTATE IN LAND

 

Tenant has been granted a usufruct only in the Premises under thisLease, and not a leasehold or other estate in land, and that Tenant’s interesthereunder is not subject to levy, execution and sale and is not assignableexcept with Landlord’s prior written consent. No estate shall pass out ofLandlord by this Lease.

 

26.                              INTENTIONALLY DELETED

 

27.                               INTENTIONALLY DELETED

 

28.                               PARKING ARRANGEMENTS

 

Landlord shall maintain unreserved covered parking spaces for use byTenant and Tenant’s invitees and employees, in such amount or ratio as is in compliance with the zoning for the Property, as may bemodified from time to time, but in no event less than 4 parking spaces forevery 1,000 occupied rentable square feet in the Premises, and Tenant (andTenant’s guests and employees) shall only be entitled to use that amount ofparking spaces (determined on a parking space per square foot leased basis).Such parking shall be available subject to the reasonable limitations andconditions from time to time imposed by Landlord, but neither Landlord nor anyparking contractor or other party acting on behalf of Landlord shall charge anyparking fees to Tenant or its visitors for such unreserved spaces. Said parkingshall be maintained on the Property or on areas located in the vicinity of theProperty. Notwithstanding the above, Tenant shall be entitled, as part ofthe parking ratio above, to the use of twelve (12) reserved spaces. Suchreserved spaces shall be located at an area mutually agreed upon by Landlordand Tenant, and Tenant shall not be charged for the use of such twelve (12)reserved spaces.

 

29.                               RULES AND REGULATIONS

 

The Rules on Exhibit “E” are a part of thisLease. Landlord may from time to time amend, modify, delete or addadditional Rules for the use, operation, safety, cleanliness and care ofthe Premises and the Building, provided that Landlord enforces such Rules againstall tenants on a nondiscriminatory basis and provided that no such changematerially affects Tenant’s ability to use and enjoy the Premises for thepurposes intended by this Lease. Such new or modified Rules shall beeffective upon notice to Tenant. Tenant will cause its employees and agents, orany others permitted by Tenant to occupy or enter the Premises to at all timesabide by the Rules. If there is a breach of any Rules beyond anyapplicable notice and cure period provided in Paragraph 10(a), Landlord shallhave all remedies in this Lease provided for in an Event of Default by Tenantand shall, in addition, have any remedies available at law or in equity,including but not limited to, the right to enjoin any breach of such Rules.Landlord shall not be responsible to Tenant for the nonobservance by any othertenant or person of any such Rules.

 

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30.                                   INTENTIONALLY DELETED

 

31.                                   LATE PAYMENTS

 

Any payment due of Tenant hereunder not received by Landlord withinfive (5) days of the date when due shall be assessed a five percent (5%)charge for Landlord’s administrative and other costs in processing and pursuingthe payment of such late payment, and shall be assessed an additional fivepercent (5%) charge for the aforesaid costs of Landlord for each monththereafter until paid in full. Acceptance by Landlord of a payment, and thecashing of a check, in an amount less than that which is currently due shall inno way affect Landlord’s rights under this Lease and in no way be an accord andsatisfaction. This provision does not prevent Landlord from declaring thenon-payment of Rent when due an Event of Default hereunder, subject toParagraph 10(a)(i).

 

32.                                   ESTOPPEL CERTIFICATE

 

Tenant shall, within ten (10) business days of the request byLandlord, execute, acknowledge and deliver to Landlord, any Mortgagee,prospective Mortgagee or any prospective purchaser or transferee of theProperty, the Building, or both (as designated by Landlord), an EstoppelCertificate in recordable form, or in such other form as Landlord may fromtime to time require, evidencing whether or not (a) this Lease is in fullforce and effect; (b) this Lease has been amended in any way; (c) Tenanthas accepted and is occupying the Premises; (d) there are any existingdefaults on the part of Landlord hereunder or defenses or offsets againstthe enforcement of this Lease to the knowledge of Tenant (specifying the natureof such defaults, defenses or offsets, if any); (e) the date to which Rentand other amounts due hereunder, if any, have been paid; and (f) any suchother information as may be reasonably requested by Landlord. Eachcertificate delivered pursuant to this Paragraph may be relied on byLandlord, any prospective purchaser or transferee of Landlord’s interesthereunder, or any Mortgagee or prospective Mortgagee.

 

33.                                   SEVERABILITY AND INTERPRETATION

 

(a)                                  If any clause or provision of this Leaseshall be deemed illegal, invalid or unenforceable under present or future lawseffective during the Term, the remainder of this Lease shall not be affected bysuch illegality, invalidity or unenforceability, and in lieu of each clause or provisionof this Lease that is illegal, invalid or unenforceable, there shall be addedas a part of this Lease a clause or provision as similar in terms to suchillegal, invalid or unenforceable clause or provision as may be possibleand be legal, valid and enforceable.

 

(b)                                    If any provisions of this Lease requirejudicial interpretation, the court interpreting or construing the same shallnot apply a presumption that the terms of any such provision shall be morestrictly construed against one party or the other by reason of the rule ofconstruction that a document is to be construed most strictly against the partywho itself or through its agent prepared the same, as all parties hereto haveparticipated in the preparation of this Lease.

 

34.                                   MULTIPLE TENANTS

 

If more than one individual or entity comprises and constitutes Tenant,then all individuals and entities comprising Tenant are and shall be jointlyand severally liable for the due

 

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andproper performance of Tenant’s duties and obligations arising under or inconnection with this Lease.

 

35.                                  FORCE MAJEURE

 

Any prevention, delay or stoppage due to strikes, lockouts, labordisputes, acts of God, inability to obtain services, labor, or materials orreasonable substitutes therefor, inability to obtain permits or othergovernmental approvals after timely application therefor, governmental actions,civil commotions, war, terrorism, fire or other casualty, and other causesbeyond the reasonable control of the party obligated to perform, except withrespect to the obligations imposed with regard to Rent and other charges to bepaid by Tenant pursuant to this Lease (collectively, “Force Majeure”),notwithstanding anything to the contrary contained in this Lease, shall excusethe performance of such party for a period equal to any such prevention, delayor stoppage and therefore, if this Lease specifies a time period forperformance of an obligation of either party, that time period shall beextended by the period of any delay in such party’s performance caused by anevent of Force Majeure.

 

36.                                  QUIET ENJOYMENT

 

So long as Tenant is in full compliance with the terms and conditionsof this Lease, Landlord shall warrant and defend Tenant in the quiet enjoymentand possession of the Premises during the Term against any and all claims madeby, through or under Landlord, subject to the terms of this Lease.

 

37.                                  BROKERAGE COMMISSION; INDEMNITY

 

COUSINS PROPERTIES SERVICES LP (“COUSINS”) HAS ACTED AS CONTRACTMANAGER FOR LANDLORD IN THIS TRANSACTION AND TRAMMELL CROW SERVICES, INC.HAS ACTED AS AGENT FOR TENANT IN THIS TRANSACTION. BOTH COUSINS AND TRAMMELLCROW SERVICES, INC. ARE TO BE PAID A COMMISSION BY LANDLORD. Tenant andLandlord each warrant to the other that there are no other claims for broker’scommissions or finder’s fees in connection with the warranting party’sexecution of this Lease. Tenant hereby indemnifies Landlord and holds Landlordharmless from and against all loss, cost, damage or expense, including, but notlimited to, attorney’s fees and court costs, incurred by Landlord as a resultof or in conjunction with a claim of any real estate agent or broker, if madeby, through or under Tenant. Landlord hereby indemnifies Tenant and holdsTenant harmless from and against all loss, cost, damage or expense, including,but not limited to, attorney’s fees and court costs, incurred by Tenant as aresult of or in conjunction with a claim of any real estate agent or broker, ifmade by, through or under Landlord. Tenant shall cause any agent or brokerrepresenting Tenant, upon such broker’s receipt of any commission due to suchbroker, to execute a lien waiver to and for the benefit of Landlord, waivingany and all lien rights with respect to the Building or Property such agent orbroker has or might have under Georgia law.

 

38.                                  EXCULPATION OF LANDLORD

 

LANDLORD’S LIABILITY TO TENANT WITH RESPECT TO THIS LEASE SHALL BELIMITED SOLELY TO LANDLORD’S INTEREST IN THE PROPERTY. NEITHER LANDLORD, ANYOFFICER, DIRECTOR, OR SHAREHOLDER OF LANDLORD

 

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NOR ANY OF THE PARTNERS OF LANDLORD SHALL HAVE ANY PERSONAL LIABILITYWHATSOEVER WITH RESPECT TO THIS LEASE.

 

39.                                   ORIGINAL INSTRUMENT

 

Any number of counterparts of this Lease may be executed, and eachsuch counterpart shall be deemed to be an original instrument.

 

40.                                   GEORGIA LAW

 

This Lease has been made under and shall be construed and interpretedunder and in accordance with the laws of the State of Georgia.

 

41.                                   NO RECORDATION OF LEASE

 

Neither this Lease nor any memorandum hereof shall be recorded orplaced on public record.

 

42.                                   HAZARDOUS WASTES

 

Tenant shall not (either with or without negligence) cause or permitthe escape, disposal or release of any biologically or chemically active orother hazardous substances or materials. Tenant shall not allow the storage oruse of such substances or materials in any manner not sanctioned by law or bythe highest standards prevailing in the industry for the storage and use ofsuch substances or materials, nor allow to be brought into the Building, thePremises or the Property, any such materials or substances except to use in theordinary course of Tenant’s business, and then only after notice is given toLandlord of the identity of such substances or materials. Without limitation,hazardous substances and materials shall include those described in theComprehensive Environmental Response, Compensation and Liability Act of 1980,as amended, 42 U.S.C. Section 9601 et seq., the Resource Conservation andRecovery Act, as amended, 42 U.S.C. Section 6901 et seq., any applicablestate or local laws and the regulations adopted under these acts. If any lenderor governmental agency shall ever require testing to ascertain whether or notthere has been any release of hazardous materials, then the reasonable coststhereof shall be reimbursed by Tenant to Landlord upon demand as additionalcharges if such requirement applies to the Premises. In addition, Tenant shallexecute affidavits, representations and the like from time to time at Landlord’srequest concerning Tenant’s best knowledge and belief regarding the presence ofhazardous substances or materials on the Premises. In all events, Tenant shallindemnify Landlord in the manner elsewhere provided in this Lease from anyliability, loss, cost, damage or expense (including, without limitation,reasonable attorney fees) incurred by or on behalf of Landlord resulting fromany release of hazardous materials on the Premises occurring while Tenant is inpossession, or elsewhere if caused by Tenant or persons acting under Tenant.Except with respect to any release described in the preceding sentence,Landlord shall indemnify Tenant from any liability of Tenant resulting from thepresence of any hazardous materials on the Property or any release of hazardousmaterials from the Property. The within covenants shall survive the expiration orearlier termination of the Term. As of the date of this Lease, Landlord has notreceived any written notice that the Premises, the Building or the Propertycontains any such hazardous substances of materials in violation of applicablelaw.

 

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43.                                    PATRIOT ACT.

 

Tenant (which for this purpose includes its partners, members,principal stockholders and any other constituent entities (i) has not beendesignated as a “specifically designated national and blocked person” on themost current list published by the U.S. Treasury Department Office of ForeignAssets Control at its official website, <http://www.treas.gov/ofac/t11sdn.pdf>or at any replacement website or other replacement official publication of suchlist; (ii) is currently in compliance with and will at all times duringthe Term (including any extension thereof) remain in compliance with theregulations of the Office of Foreign Asset Control of the Department of theTreasury and any statute, executive order (including the September 24,2001, Executive Order Blocking Property and Prohibiting Transactions withPersons Who Commit, Threaten to Commit, or Support Terrorism), or othergovernmental action relating thereto; and (iii) has not used and will notuse funds from illegal activities for any payment made under this Lease.

 

44.                                    LEASE BINDING UPON DELIVERY

 

This Lease shall not be binding until and unless all parties have dulyexecuted said Lease and a fully executed counterpart of said Lease hasbeen delivered to Tenant.

 

45.                                    SPECIAL STIPULATIONS

 

The special stipulations attached hereto as Exhibit “F”, ifany, and made a part hereof shall control if in conflict with any of theforegoing provisions of this Lease.

 

[REMAINDER OF PAGE INTENTIONALLY LEFTBLANK]

 

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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to beexecuted under seal, on the day and year first above written.

 
|                           | LANDLORD:                            |
|--------------------------------|--------------------------------------|
|                           |                                 |
|                           | 485  PROPERTIES, LLC, a              |
|                           | Delaware  limited liability company  |
|                           |                                 |
|                           | By:                                  | /s/ Elizabeth Andress |   |
| Date  executed by              | Name:                                | Elizabeth Andress |   |
| Landlord:  1/7/2006            | Title:                               | Assistant  Secretary |   |
|                           |                                 |
|                           |                                 |
|                           | TENANT:                              |
|                           |                                 |
|                           | FIRST  HORIZON PHARMACEUTICAL        |
|                           | CORPORATION,  a Delaware corporation |
|                           |                                 |
|                           | By:                                  | /s/ Darrell Borne | (SEAL) |
|                           |                                 |   |   |
|                           |                                 | Authorized  Signature |   |
|                           |                                 |   |   |
|                           |                                 |   /s/ Darrell Borne |   |
|                           |                                 | Type  Name of Signatory |   |
|                           |                                 |   |   |
| Date  executed by              | By:                                  |    /s/ Leslie B Zales | (SEAL) |
| Tenant:  January 30, 2006 |                                 | Authorized  Signature |   |
|                           |                                 |   |   |
|                           |                                 |    /s/ Leslie B Zacks |   |
|                           |                                 | Type  Name of Signatory |   |
|                           |                                 |
|                           | (CORPORATE SEAL)                     |
|                                |                                      |  |  |  |  |

 

*Note: If Tenant is a corporation, two authorizedcorporate officers must execute this Lease in their appropriate capacities forTenant, affixing the corporate seal.

 

By the execution and delivery of this Lease Tenant has made and shallbe deemed to have made a continuous and irrevocable offer to lease thePremises, on the terms contained in this Lease, subject only to acceptance byLandlord (as evidenced by Landlord’s signature hereon), which Landlord may acceptin its sole and absolute discretion. If a fully executed counterpart ofthis Lease is not delivered to Tenant within twelve (12) days after the dateexecuted by Tenant and delivered to Landlord, as set forth above, Tenant’soffer shall expire and no longer be subject to acceptance by Landlord.

 

Tenant’sFederal Employer Identification Number: 582004779

 

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EXHIBIT “A”

 

SPACE PLAN OF PREMISES

 

A-1

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EXHIBIT “A-l”

 

SPACE PLAN OF EXPANSION SPACE 

 

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EXHIBIT “B”

 

LEGAL DESCRIPTION - CORPORATE CENTER VTRACT I

 

All that tract or parcel of land lying and being in Land Lot 17, 17thDistrict, Fulton County, Georgia and being more particularly described asfollows:

 

To reach the TRUE POINT OF BEGINNING, commence at the intersection ofthe former southern Right-of-way of Hammond Drive (variable Right-of-Way, was47.9 feet from the centerline) extended and the former western Right-of-Way ofPeachtree Dunwoody Road (variable Right-of-Way, was 41.7 feet from thecenterline) extended; thence along the former southern Right-of-Way of HammondDrive North 86° 36’ 33” West a distance of 169.01 feet to a point; thencecontinuing along said former Right-of-Way North 84° 29’ 08” West a distance of208.47 feet to a point; thence continuing along said former Right-of-Way North87° 58’ 03” West a distance of 344.41 feet to a point; thence continuing alongsaid former Right-of-Way South 02° 01’ 32” West a distance of 23.63 feet to apoint; thence leaving said Right-of-Way South 02° 01’ 32” West a distance of97.90 feet to the TRUE POINT OF BEGINNING; thence South 02° 01’ 32” West adistance of 161.45 feet to a point; thence North 87° 56’ 37” West a distance of68.50 feet to a point; thence South 02° 42’ 10” West a distance of 424.58 feetto a point; thence North 87° 18’ 46” West a distance of 0.27 feet to a point;thence South 02° 33’ 01” West a distance of 113.39 feet to a point; thenceNorth 88° 54’ 38” West a distance of 49.13 feet to a point; thence South 02° 41’57” West a distance of 369.97 feet to a point; thence North 42° 17’ 47” West adistance of 26.56 feet to a point; thence North 02° 42’ 13” East a distance of43.66 feet to a point; thence North 87° 17’ 47” West a distance of 19.09 feetto a point; thence North 02° 42’ 13” East a distance of 19.09 feet to a point;thence North 87° 17’ 47” West a distance of 19.09 feet to a point; thence North02° 42’ 13” East a distance of 19.09 feet to a point; thence North 87° 17’ 47”West a distance of 19.09 feet to a point; thence North 02° 42’ 13” East adistance of 19.09 feet to a point; thence North 87° 17’ 47” West a distance of19.09 feet to a point; thence North 02° 42’ 13” East a distance of 19.09 feetto a point; thence North 87° 17’ 47” West a distance of 123.76 feet to a point;thence South 47° 42’ 13” West a distance of 24.63 feet to a point; thence North87° 17’ 47” West a distance of 26.04 feet to a point; thence North 02° 42’ 13”East a distance of 44.37 feet to a point; thence along a curve to the left anarc distance of 184.93 feet (said curve having a radius of 67.55 feet, a chorddistance of 132.35 feet and a chord bearing of North 02° 42’ 13” East) to apoint; thence North 02° 42’ 13” East a distance of 44.37 feet to a point;thence North 87° 17’ 47”, West a distance of 33.87 feet to a point; thenceNorth 00° 00’ 00” East a distance of 211.03 feet to a point; thence North 47°42’ 11” East a distance of 105.51 feet to a point; thence North 48° 42’ 12”East a distance of 103.91 feet to a point; thence along a curve to the left anarc distance of 150.75 feet (said curve having a radius of 1317.92 feet, achord distance of 150.67 feet, and a chord bearing of North 41° 59’ 43” East)to a point; thence along a curve to the left an arc distance of 37.41 feet (saidcurve having a radius of 23.00 feet, a chord distance of 33.42 feet, and achord bearing of North 07° 52’ 36” West) to a point; thence along a curve tothe left an arc distance of 44.69 feet (said curve having a radius of 78.00feet, a chord distance of 44.08 feet, and a chord bearing of North 70° 53’ 04”West) to a point; thence North 87° 17’ 49” West a distance of 129.20 feet to apoint; thence South 02° 42’ 11” West a distance of 10.75 feet to a point;thence North 87° 17’ 49” West a distance of 77.00 feet to a point; thence South02° 42’ 11” West a distance of 22.00 feet to a point; thence North 87° 17’ 49”West a distance of 60.67 feet to a point; thence North 02° 42’ 11” East adistance of 22.00 feet to a point; thence North 87°

 

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17’49” West a distance of 193.33 feet to a point; thence North 02° 42’ 11” East adistance of 279.00 feet to a point; thence South 87° 17’ 49” East a distance of340.88 feet to a point; thence South 02° 13’ 27” West a distance of 225.00 feetto a point; thence South 88° 11’ 11” East a distance of 195.22 feet to a point;thence North 01° 55’ 53” East a distance of 96.86 feet to a point; thence South50° 05’ 28” East a distance of 78.91 feet to a point; thence North 39° 45’ 06”East a distance of 143.00 feet to a point being the TRUE POINT OF BEGINNING,said tract containing 7.225 acres.

 

The legal description as contained herein is based on the property asshown on a survey title “As-Built Survey of Concourse Corporate Center V forConcourse V Associates and Ticor Title Insurance Company of California andTeachers Insurance and Annuity Association of America”, prepared by BenchmarkEngineering Corporation, bearing the certification of Dennis Boutwell, GeorgiaRegistered Land Surveyor No. 1873, dated September 20, 1988, lastrevised July 24, 1989

 

LEGAL DESCRIPTION - CORPORATE CENTER VTRACT II

 

All that tract or parcel of land lying and being in Land Lot 17, 17thDistrict, Fulton County, Georgia and being more particularly described asfollows

 

To reach the TRUE POINT OF BEGINNING, commence at the intersection ofthe former southern Right-of-Way of Hammond Drive (variable Right-of-Way, was47.9 feet from the centerline) extended and the former western Right-of-Way ofPeachtree Dunwoody Road (variable Right-of-Way, was 41.7 feet from thecenterline) extended; thence along the former southern Right-of-Way of HammondDrive North 86° 36’ 33” West a distance of 169.01 feet to a point; thencecontinuing along said former Right-of-Way North 84° 29’ 08” West a distance of208.47 feet to a point; thence continuing along said former Right-of-Way North87° 58’ 03” West a distance of 344.41 feet to a point; thence continuing alongsaid former Right-of-Way South 02° 01’ 32” West a distance of 26.81 feet to apoint on the existing Right-of-Way of Hammond Drive; thence leaving saidexisting Right-of-Way South 02° 01’ 32” West a distance of 161.45 feet to apoint; thence South 39° 45’ 06” West a distance of 143.00 feet to a point;thence North 50° 05’ 28” West a distance of 78.91 feet to a point; thence North01° 55’ 53” West a distance of 96.86 feet to a point; thence North 88° 11’ 11”West a distance of 195.22 feet to a point; thence North 02° 13’ 27” East adistance of 225.00 feet to a point, being the TRUE POINT OF BEGINNING; thenceNorth 87° 17’ 49” West a distance of 600.13 feet to a point; thence South 00°28’ 40” East a distance of 115.99 feet to a point; thence along a curve to theright an arc distance of 162.30 feet (said curve having a radius of 1301.00feet, a chord distance of 162.20 feet, and a chord bearing of South 03° 05’ 46”West) to a point; thence South 06° 40’ 11” West a distance of 133.86 feet to apoint; thence along a curve to the left an arc distance of 156.81 feet (saidcurve having a radius of 1000.00 feet, a chord distance of 156.65 feet, and achord bearing of South 02° 10’ 40” West) to a point; thence South 02° 18’ 52”East a distance of 22.60 feet to a point; thence South 87° 41’ 08” West adistance of 109.76 feet to a point on the eastern Right-of-Way of North FultonExpressway (also known as Georgia Route No. 400 - variable Right-of-Way);thence along said Right-of-Way along a curve to the right an arc distance of175.78 feet (said curve having a radius of 3701.72 feet, a chord distance of175.77 feet, and a chord bearing of North 00° 16’ 12” East) to a point; thencecontinuing along said Right-of-Way North 01° 33’ 39” East a distance of 425.80feet to a point at the intersection with the existing southern Right-of-Wayof said Hammond Drive; thence along the said existing southern

 

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Right-of-Way of Hammond Drive North 89° 30’ 25” East a distance of51.66 feet to a point; thence continuing along said existing Right-of-Way North83° 08’ 10” East a distance of 136.85 feet to a point; thence continuing alongsaid existing Right-of-Way North 88° 57’ 54” East a distance of 244.32 feet toa point; thence continuing along said existing Right-of-Way South 87° 56’ 55”East a distance of 295.27 feet to a point; thence leaving said existingRight-of-Way South 02° 13’ 27” West a distance of 45.94 feet to a point beingthe TRUE POINT OF BEGINNING, said tract containing 2.197 acres.

 

The legal description as contained herein is based on the property asshown on a survey title “As-Built Survey of Concourse Corporate Center V forConcourse V Associates and Ticor Title Insurance Company of California andTeachers Insurance and Annuity Association of America”, prepared by BenchmarkEngineering Corporation, bearing the certification of Dennis Boutwell, GeorgiaRegistered Land Surveyor No. 1873, dated September 20, 1988, lastrevised July 24, 1989.

 

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EXHIBIT “C”

 

WORK AGREEMENT FORCOMPLETION OF THE PREMISES

 

Landlordand Tenant executed a Lease for Premises on the seventeenth (17th)and eighteenth (18th) floors of the Building and hereby attach thisWork Agreement to said Lease as Exhibit “C” thereto. To induceTenant to enter into the Lease and in consideration of the mutual covenantsherein contained, Landlord and Tenant agree as follows:

 

ARTICLE 1 - DEFINITIONS

 

The following terms shall have the meanings described below. Terms notdefined herein shall have the meaning given in the Lease:

 

Additional Allowance shall mean Ten Thousand Dollars ($10,000).

 

Allowanceshall mean Thirty Seven Dollars and Fifty Cents ($37.50) multiplied by thenumber of rentable square feet in the Premises.

 

Architectshall mean Veenendaal Cave, Inc.

 

Base Building Improvements shall mean Building Standard improvements to be constructed orinstalled in the Building.

 

Building Plans and Specifications shall mean the final drawings andspecifications for Base Building Improvements.

 

Building Standard Materials shall mean such materials described in Exhibit H attached hereto,or materials of comparable quality substituted therefor by Landlord. Except forBuilding Standard Hardware and items pre-installed by Landlord, Tenant may, butis not obligated to, purchase Building Standard Materials. Tenant shall beobligated to buy Building Standard Hardware and all items pre-installed byLandlord. Tenant may also be obligated to utilize and pay for certainother Building Standard Materials in accordance with Section 3.01(c) herein.

 

Contractorshall mean the party selected in accordance with Article 5 herein to dothe Tenant Improvements.

 

Change Ordershall mean any alteration, substitution, addition or change to or in the TenantSpace Plans or Tenant Improvement Construction Documents requested by Tenantafter the same have been consented to by Landlord.

 

Completion Dateshall mean the date of Substantial Completion of Tenant Improvements under theTenant Improvement Construction Documents.

 

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Construction Contract shall mean the agreement to be entered between Tenant and Contractorfor the construction of the Tenant Improvements.

 

Design Allowanceshall mean Two Dollars Seventy-five Cents ($2.75) multiplied by the number ofrentable square feet in the Premises.

 

Substantial Completion or Substantially Complete shall be as described in Section 3.04hereof.

 

Tenant’s Architect shall mean Rule, Joy, Trammell + Rubio, LLC.

 

Tenant’s Costsshall mean the aggregate of (a) all costs and expenses of constructing theTenant Improvements that are in excess of the Allowance, and (b) all costsand expenses related to the design (including any revision and redesign costs)of the Tenant Improvements.

 

Tenant Improvements shall mean all improvements constructed or installed in or on thePremises and common areas of the Building in accordance with the TenantImprovement Construction Documents, net of a $.15 per square foot test fitallowance to be paid to Rule, Joy, Trammell + Rubio, LLC by Landlord.

 

Tenant Improvement Costs shall mean the aggregate cost for the Tenant Improvements, approved byTenant in accordance with Section 3.01 hereof, together with the cost ofany Change Orders as provided in Section 3.05 hereof and the costs of allcontract administration and construction management performed by Tenant’sArchitect.

 

Tenant Improvement Construction Documents shall mean the working drawings,specifications and finish schedules for the Tenant Improvements prepared byTenant’s Architect and consented to by Landlord and Tenant in accordanceherewith.

 

Tenant Space Plans shall mean the schematic presentation of the Premises prepared byTenant’s Architect and consented to by Landlord and Tenant in accordanceherewith.

 

Tenant’s Workshall mean all work in or about the Premises not within the scope of the worknecessary to construct the Tenant Improvements, such as (by way of illustrationand not limitation) delivering and installing furniture, telephone equipmentand wiring and office equipment.

 

Working Dayshall mean the period from 9:00 A.M. until 5:00 P.M. on any Mondaythrough Friday, excluding federal and Georgia state holidays. By way ofillustration, any period described in this Work Letter as expiring at the endof the third (3rd) Working Day after receipt of a document, then: (i) ifreceipt occurs at 9:01 A.M. on Monday, said period shall expire at 5:00 P.M.on the following Thursday; and (ii) if receipt occurs at 4:59 P.M. onWednesday, the period shall expire at 5:00 P.M. on the following Monday.

 

ARTICLE 2. TENANT SPACEPLANS AND TENANTIMPROVEMENT PLANS AND SPECIFICATIONS

 

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Section 2.01 Schedule for Preparation

 

Tenantshall contract with Tenant’s Architect for the preparation of the Tenant SpacePlans and Tenant Improvement Construction Documents; provided, however, thatTenant agrees to contract, at reasonable or market rates, with the Building’smechanical, electrical and plumbing engineers with respect to the engineeringdrawings that are included in the Tenant Improvement Construction Documents.Subject to the immediately preceding sentence, Tenant Space Plans and TenantImprovement Construction Documents for the Tenant Improvements shall beprepared by Tenant’s Architect, reviewed by Architect, and consented to byTenant and Landlord as provided hereinbelow. Architect, on Landlord’s behalf,shall provide review and monitoring services during both the preparation of theTenant Space Plans and Tenant Improvement Construction documents and thecompletion of the work therein for a fee of one percent (1%) of the TenantImprovement Costs, but not in excess of $15,000. Tenant shall be solelyresponsible for such Architect’s fee, but Tenant shall be allowed to apply anyportion of the Allowance towards such fee.

 

1.                                       As soon as reasonably possible (but in noevent later than ten (10) Working Days after the full execution anddelivery of the Lease) Tenant shall provide Tenant’s Architect all specifications,information and documents necessary to enable Tenant’s Architect to prepare theTenant Space Plans.

 

2.                                       Within ten (10) Working Days afterreceipt of all items described in Section 2.01(1) above, Tenant’sArchitect shall prepare and deliver to Tenant and Landlord the Tenant SpacePlans.

 

3.                                       By the end of the third (3rd) full WorkingDay after receipt of the Tenant Space Plans, Tenant and Landlord shall reviewand resubmit the same to Tenant’s Architect, either with consent or withcomments thereto. Landlord’s comments shall include its determination of whetherTenant will be required to remove any Tenant Improvements at the end of theTerm pursuant to Section 7(b) and whether Tenant’s electrical designwould require Additional Electrical Equipment pursuant to Section 8(b)(iv).Landlord agrees that Tenant will not be obligated to remove any HVAC equipmentor other Tenant Improvements that are typical for commercial use.

 

4.                                       By the end of the third (3rd) full WorkingDay after receipt of any comments to the Tenant Space Plans, Tenant’s Architectshall resubmit to Tenant and Landlord the Tenant Space Plans with such changesor information as requested.

 

5.                                       This process described in Section 2.01(2),(3) and(4) shall continue until Tenant and Landlord have satisfied themselvesthat such proposed Tenant Space Plans are acceptable, but once Tenant SpacePlans have been resubmitted, Tenant and Landlord shall confine their commentsthereupon only to the changes made by Tenant’s Architect or changes requested tothe prior submission of Tenant Space Plans, but not made by Tenant’s Architect.Once each of Tenant and Landlord has satisfied itself that such proposed TenantSpace Plans are acceptable, each shall notify the other, and the Tenant SpacePlans as so consented to shall constitute the final Tenant Space Plans. Whenthe parties give such final consent, Tenant shall notify Landlord of the amountof time Tenant estimates, in Tenant’s reasonable judgment, SubstantialCompletion of Tenant Improvements within the portion of the Premises shown onsuch Tenant Space Plans will require.

 

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6.                                       After final consent to the Tenant SpacePlans, Tenant’s Architect shall prepare and deliver to Tenant and Landlord theprepared Tenant Improvement Construction Documents.

 

7.                                       By the end of the third (3rd) full WorkingDay after receipt of the Tenant Improvement Construction Documents, Tenant andLandlord shall review and resubmit the same to Tenant’s Architect, either withTenant’s consent or comments thereto.

 

8.                                       By the end of the third (3rd) full WorkingDay after receipt of any comments to the Tenant Improvement ConstructionDocuments, Tenant’s Architect shall resubmit to Tenant and Landlord the TenantImprovement Construction Documents with such changes or information asrequested.

 

9.             The process described in Section 2.01(6),(7) and (8) shall continue until each of Landlord and Tenant issatisfied that such proposed Tenant Improvement Construction Documents are acceptable,but once Tenant Improvement Construction Documents have been resubmitted to,Tenant and Landlord shall confine their comments thereupon only to changes madeby Tenant’s Architect or the changes requested to the prior submission ofTenant Improvement Construction Documents, but not made by Tenant’s Architect.Once each of Landlord and Tenant is satisfied that such proposed TenantImprovement Construction Documents are acceptable, each shall notify the other,and the Tenant Improvement Construction Documents consented to by Tenant andLandlord shall constitute the final Tenant Improvement Construction Documents.

 

10.           Any approval or consent by Landlord of anyitems submitted by Tenant to and/or reviewed by Landlord pursuant to this WorkLetter shall be deemed to be strictly limited to an acknowledgment of approvalor consent by Landlord thereto and shall not imply or be deemed to imply anyrepresentation or warranty by Landlord that the design is safe or structurallysound or will comply with any legal or governmental requirements. Any deficiency,mistake or error in design (expressly excluding the engineering drawings), althoughthe same has the consent or approval of Landlord, shall be the soleresponsibility of Tenant, and Tenant shall be liable for all costs and expenseswhich may be incurred and all delays suffered in connection with orresulting from any such deficiency, mistake or error in design.

 

ARTICLE 3. CONSTRUCTIONOF TENANT IMPROVEMENTS

 

Section 3.01Pricing of Tenant Improvements

 

(a) Within ten (10) Working Days after final approval of theTenant Improvement Construction Documents, Tenant shall obtain a price proposalfor the Tenant Improvements from Contractor. Such price proposal shall besubject to Landlord’s review and approval, which approval by Landlord shall notbe unreasonably withheld or delayed. Should Tenant desire to seek adjustmentsof such price proposal, Tenant shall work promptly with Tenant’s Architect andContractor to alter the Tenant Improvement Construction Documents to cause theprice quotation to be acceptable to Tenant and to establish the TenantImprovement Costs. Upon determination of the Tenant Improvement Costs and thewritten approval of the Tenant Improvement Construction Documents by Landlordand Tenant, Tenant shall have given final approval of the same, and Tenantshall be

 

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authorizedto proceed with contracting with Contractor for the construction andinstallation of the Tenant Improvements in accordance with the TenantImprovement Construction Documents.

 

(b)                                 Included in the pricing for the TenantImprovements shall be the cost of those Building Standard Materials whichTenant is obligated to purchase under this Work Letter, which shall be purchasedby Tenant in appropriate quantities for the Premises. The cost of such BuildingStandard Materials shall be charged against the Allowance, to the extentavailable.

 

(c)                                  If Tenant has, as a part of anyspecifications for the Tenant Improvements, designated Building StandardMaterials or a standard that allows for equivalent quality items and wouldpermit the use of Building Standard Materials, Landlord shall have the right,at Landlord’s option and in Landlord’s sole discretion, to sell those BuildingStandard Materials to Tenant at the price given for such item (on a unit costbasis) by the bidder selected to perform that portion of the work whichwill be using the Building Standard Materials in question; provided, however,Landlord shall not charge for any materials, whether or not Building StandardMaterials, which were located in the Premises on January 1, 2006 orremained after the demolition of existing improvements. Any such costs under thisSection 3.01(c) shall be charged against the Allowance, to the extentavailable.

 

Section 3.02 Construction of Tenant Improvements.

 

Tenant will enter into a Construction Contract with Contractor toconstruct the Tenant Improvements, with Landlord named as a third partybeneficiary thereunder. Tenant shall cause the Tenant Improvements to beperformed in a good and workmanlike manner. If Landlord notifies Tenant of anydefect with the Tenant Improvements within ninety (90) days after Tenant takespossession of the Premises then Tenant shall, at Tenant’s cost, remedy suchdefect.

 

Section 3.03 Tenant Delay

 

If there is delay in achieving Substantial Completion of Tenant’sImprovements as a result of or in connection with:

 

A.                                   Tenant’s failure to furnish any informationor documents in accordance with this Work Letter;

 

B.                                     Tenant’s request for materials, finishes orinstallations other than Building Standard Materials, finishes orinstallations;

 

C.                                     Any Change Order, including any change in theTenant Improvement Construction Documents made pursuant to Section 3.01hereof and any failure by Tenant to respond to a “Change Order Effect Notice”within the time period required hereunder;

 

D.                                    Tenant’s failure to respond within any of thetime periods specified herein;

 

E.                                      If in the performance or prosecution ofTenant’s Work, Tenant’s employees or agents interfere with or in any mannerhinder Contractor from prosecuting to the fullest extent possible the TenantImprovements work; or

 

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F.                                      Tenant’s failure to return properly executedoriginal counterparts of this Lease to Landlord within three (3) WorkingDays after receipt from Landlord;

 

then such shall be a “Tenant Delay”. 

 

Section 3.04Completion of Premises

 

A.                                   The Premises shall be SubstantiallyCompleted, as to any floor, and Substantial Completion shall have occurred, asto any floor, upon the following:

 

(i)            Tenant Improvements shall have been completedas to the floor in substantial compliance with the Construction Contract andotherwise sufficient so that Architect can execute the most recently publishedversion of AIA form G704, titled “Certificate of Substantial Completion”;and

 

(ii)           Tenant shall have obtained a certificate ofoccupancy (or evidence reasonably satisfactory to Tenant and Landlord that uponcompletion of the Tenant’s Work, a certificate of occupancy will be issued) forthe Premises in question, permitting use of the floor of the Premises inquestion;

 

provided, to the extent compliance with the conditions set forth abovewould have occurred earlier but for Tenant Delay, then compliance with suchcondition shall be deemed to have occurred on the date it would have occurredbut for the Tenant Delay.

 

Section 3.05 Changes in Plans and Specifications

 

A.                                   If at any time after the Tenant ImprovementCosts are determined, Tenant desires to make Change Orders, Tenant shall submitto Tenant’s Architect, with a copy to Architect, for pricing by Contractorworking drawings and specifications for any and all such desired Change Orders.Tenant’s Architect shall respond to Tenant, within five (5) Working Daysof such request by Tenant, with an estimate of the effect of such desiredChange Order on Tenant Improvement Costs and the schedule of anticipatedSubstantial Completion (the “Change Order Effect Notice”). Tenant shall havethree (3) Working Days to respond to such Change Order Effect Notice, withthe authorization required hereunder, although Tenant may, within said three (3) WorkingDay period, request more time to finally respond to the Change Order EffectNotice. A failure by Tenant to respond to any such Change Order Effect Noticeshall be denial of consent, and, upon denial, Contractor shall proceed with itswork in accordance with the Tenant Improvement Construction Documents. Once thecost and the schedule change, if any, for such Change Order has been approvedby Tenant, all references in this Work Agreement to the “Tenant Improvement ConstructionDocuments” shall be to the Tenant Improvement Construction Documents, aschanged pursuant to this Section 3.05, and all references to “TenantImprovement Costs” shall include the net aggregate approved cost for the ChangeOrders determined in this Section 3.05 (after taking into account anysavings affected by such Change Order), except that there may be a feecharged by the Tenant Improvement Contractor for any Change Order which reducesTenant Improvement Costs.

 

B.                                     Once the Change Order, the costs therefor andthe schedule change associated therewith have been approved and a form evidencingsuch approval executed by Tenant is delivered to Landlord, Tenant shall havegiven full authorization to cause Contractor to proceed with the work of

 

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constructingthe Tenant Improvements in accordance with the Tenant Improvement ConstructionDocuments as so modified; provided that any changes required by Tenant whichconstitute a material deviation from the previously approved Tenant ImprovementConstruction Documents shall be effective only after the approval of Landlord,not to be unreasonably withheld or delayed, unless such change would result ina material delay in the completion of the work being done by Contractor.

 

Section 3.06 General Provisions Applicable to Tenant’s Work

 

1.                                       Tenant will require a high grade, first-class operationto be conducted in the Premises. Tenant’s Work and the Tenant Improvementsshall be performed in a first-class manner, using new and first-class,quality materials. Tenant’s Work and the Tenant Improvements shall beconstructed and installed in accordance with all applicable laws, ordinances,codes and rules and regulations of governmental authorities. Tenant shallpromptly correct any of Tenant’s Work and the Tenant Improvements which is notin conformance therewith.

 

2.                                       Tenant’s contract parties and subcontractorsshall be subject to administrative supervisions by Landlord and Architect intheir use of the Building and their relationship with Contractor, orcontractors of other tenants in the Building. The entry by Tenant and/or itscontract parties into the Premises for the performance of Tenant’s Work shallbe subject to the Lease, except the payment of Rent. If Landlord allows Tenantand/or its contract parties to enter the Premises and commence the performanceof Tenant’s Work prior to the Completion Date, such entry by Tenant shall be atTenant’s sole risk.

 

3.                                       Tenant’s Work shall be coordinated andconducted to maintain harmonious labor relations and not (a) to interfereunreasonably with or to delay the completion of any work being performed byContractor or by any other tenant in the Building; or (b) to interferewith or disrupt the use and peaceful enjoyment of other tenants in theBuilding. Contractor shall have priority over Tenant’s Work.

 

4.                                       Tenant and Tenant’s contract parties shallperform their work, including any storage for construction purposes,within the Premises only. Tenant shall be responsible for removal, as needed,from the Premises and the Building of all trash, rubbish, and surplus materialsresulting from any work being performed in the Premises. Tenant shall exerciseextreme care and diligence in removing such trash, rubbish, or surplusmaterials from the Premises to avoid littering, marring, or damaging anyportion of the Building. If any such trash, rubbish, or surplus materials arenot promptly removed from the Building in accordance with the provisions hereofor if any portion of the Building is littered, marred, or damaged, Landlord may causesame to be removed or repaired, as the case may be, at Tenant’s cost andexpense. Tenant shall pay Landlord the amount of any such cost and expensespromptly upon demand therefor.

 

ARTICLE 4. PAYMENT OFCOSTS

 

Section 4.01Allowance for Tenant Improvement Costs

 

Landlord shall pay the Tenant Improvement Costs, upto, but not in excess of, the Allowance, Additional Allowance and Design Allowanceand Tenant will pay any excess. The Allowance is

 

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applicableto Tenant Improvements (including the costs of cabling and other soft costs inan amount up to Five Dollars ($5.00) per rentable square foot in the Premisesand moving expenses in an amount up to Five Dollars ($5.00) per rentable squarefoot in the Premises). If the Tenant Improvement Costs are less than theAllowance then up to Five Dollars of any portion of the Allowance remaining may becredited towards the first months Rent. The Additional Allowance is applicableonly to improvements to the common areas of the Building performed inaccordance with plans and specifications mutually approved by Landlord andTenant as provided herein. The Design Allowance is applicable only to the feesof Tenant’s Architect. Notwithstanding the foregoing, the costs of furnishingnew ceiling tile and standard building lighting throughout the Premises shallbe provided by Landlord at its sole cost and expense and shall not be appliedto the Allowance. In addition, Landlord shall, at its sole cost and expense,perform the general specifications described on Exhibit “C-l”attached hereto. The cost of demolishing the space below ceilings in accordancewith Tenant’s demolition plan shall be provided as follows. Landlord shall, atits sole cost and expense, pay the amount of the lowest bid received for thedemolition work and the difference, if any, between the lowest bid received forthe demolition work and the actual cost of the demolition work done byContractor shall be included in the Tenant Improvement Costs. Landlord shalldisburse the Allowance, Additional Allowance, and Design Allowance inaccordance with applications for payment and supporting material submitted toLandlord by Tenant’s Architect. Such applications and supporting materialsshall be submitted on a monthly basis, by Tenant’s Architect and Landlord shallmake such disbursements within thirty (30) days of the receipt thereof. Exceptas specifically set forth elsewhere in this Lease, Landlord will not charge anyfees to Tenant for supervision, coordination or similar services, unless suchservices are specifically requested by Tenant.

 

Section 4.02 Payment of Tenant’s Costs

 

Tenant shall pay Tenant’s Costs to Landlord prior to commencement ofconstruction of the Tenant Improvements upon Tenant’s receipt from Tenant’sArchitect of an invoice for such costs. Failure by Tenant to pay Tenant’s Costsin accordance with this Article 4 will constitute a failure by Tenant topay Rent when due under the Lease.

 

ARTICLE 5. CONTRACTORREQUIREMENTS

 

A.                                   The prospective bidders for the engagement as“Contractor” shall be four (4), including:

 

(i)                                     Raven

(ii)                                  Leapley

(iii)                               Cork & Howard

(iv)                              DPR Construction

 

B.                                     Tenant shall be responsible for preparing bidinstructions to prospective contractors. Such bid instructions shall seek aseparate bid for the cost of demolishing the space below ceilings. Tenant shallreceive, qualify and determine the responsiveness of all bids. However,Landlord may elect to review such work and services.

 

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C.                                     All bids from such potential contractorsshall be required to be submitted on or before ten (10) business daysafter such potential contractors’ receipt from Tenant of Tenant Space Plans orBuilding Plans and Specifications sufficient to generate a bid with a maximumprice quoted. From such bids, Tenant shall select Contractor.

 

ARTICLE 6. DESIGNATIONOF REPRESENTATIVES

 

Section 6.01Landlord’s Agent

 

Landlordhereby designates Jennifer Zeigler to act as its authorized representative onthis Work Agreement. Any response from such person under this Work Agreementshall be the response of Landlord.

 

Section 6.02Tenant’s Agent

 

Tenanthereby designates Ann Rubio to act as its authorized representative on thisWork Agreement. Any response from such person under this Work Agreement shallbe the response of Tenant.

 

Section 6.03Mutual Cooperation

 

Landlord’sAgent and Tenant’s Agent shall cooperate with one another in coordinatingSubstantial Completion of Tenant’s Work and the Tenant Improvements, and incontrolling and minimizing the time and costs of the Tenant Improvements andTenant Work.

 

ARTICLE 7. ADA COMPLIANCE

 

Section 7.01Building

 

Tenantshall not be obligated to pay for Building compliance with the Americans withDisabilities Act (“ADA”), unless such compliance arises out of Tenant’sspecific use of the Premises and Building.

 

Section 7.02Tenant’s Improvements

 

TenantImprovements shall be and Tenant shall cause the Tenant Space Plan to be incompliance with the ADA, to the extent the ADA requirements are applicable andmandatory and are not voluntary (but not mandatory) for such TenantImprovements.

 

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EXHIBIT “C-l”

 

GENERAL BUILDING SPECIFICATIONS TO BEPERFORMED BY LANDLORD

 

Thegeneral building specifications outlined below, will be performed by theLandlord at its sole expense, and shall be performed in a good and workmanlikemanner and shall conform to National Building Code and applicablemunicipal by-laws. In any new construction or whereever possible, Tenant willrequire the Landlord to install the HVAC distribution, lighting and sprinklerspursuant to the Tenant’s plans and specifications in quantities as outlinedbelow:

 

A.                                   General Requirement: Ensure that all plansand specifications for the proposed office project can accommodate aworkstation densification ratio of 220 rentable square feet per person. Thisincludes but is not limited to HVAC, electrical, lighting, floor loading,elevators, washrooms and stairwells.

 

B.                                     Common Areas: Tenant requires the basebuilding work to include the main lobby, and washrooms (pursuant to OBCrequirements) to be constructed and finished to a suburban Class “A”standard by the Landlord.

 

C.                                     Electrical: Tenant requires a minimum of 6watts per square foot of power for lighting and tenant requirements. Outlineany potential for additional power or back-up systems that the Landlord wouldmake available to Tenant as part of base building. All power shall bedistributed from the main disconnect to a panel on each floor.

 

D.                                    HVAC: HVAC to meet requirements of currentASHRAE standards (15 CFM per person of outdoor air) and distributed in an openarea concept. Identify the Building’s current HVAC system and distributionmethod and hours of operation.

 

E.                                      Lighting: Tenant requires base building lighting to provide 40 foot candles atdesk top level, distributed in an open area concept.

 

F.                                      Ceiling System: Tenant requires the Building’sceiling finish height to be a minimum of nine (9) feet, and the Landlordto install a drop, T-bar ceiling system, with new ceiling tile (ArmstrongCirrus or equivalent) stockpiled in the floor for installation by Tenant.

 

G.                                     Exterior Walls: All exterior and core wallsto be dry-walled, taped and sanded, with one coat of primer.

 

H.            Floor Covering: Tenant requires thefloors to be smooth, level concrete ready to receive Tenant’s floor covering.

 

I.                                         Life Safety: Tenant requires Landlord toinstall a base-building fire suppression system, including installation of aprimary loop and branch distribution system, distribution of sprinkler system,fire hose and extinguisher cabinets finished and installed at each stairwell,exit signs, smoke detectors and any additional signal devices or systems, allas required in accordance with municipal and provincial codes.

 

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EXHIBIT “D”

 

MEMORANDUM CONFIRMING TERM

 

THIS MEMORANDUM (“Memorandum”) is made as of                        ,20     between                                        (“Landlord”)and                                             ,a                                   (“Tenant”),pursuant to that certain Lease Agreement between Landlord and Tenant dated asof                        ,20      (the “Lease”) for the premises located at                                                                                   ,                                         (the “Premises”) and more particularly describedin the Lease. All initial-capitalized terms used in this Memorandum have themeanings ascribed to them in the Lease.

 

1.                                       Landlord and Tenant hereby confirm that:

 

(a)                                  The Commencement Date of the Term is                        ,20    ;

 

(b)                                 The Expiration Date of the Term is                        ,20    ; and

 

(c)                                  The date rental commences under the Lease is                        ,20    .

 

2.                                       Tenant hereby confirms that all commitments,arrangements or understandings made to induce Tenant to enter into the Leasehave been satisfied.

 

3.                                       This Memorandum shall be binding upon andinure to the benefit of the parties and their permitted successors and assigns.

 

IN WITNESS WHEREOF, the parties have executed this Memorandum as of thedate first set forth above.

 
| LANDLORD:                 | TENANT: |
|---------------------------|---------|
|                      |    |
|                      |    |
| By:                       |    |   | By: |   |   |
| Authorized Representative |    | Its: |   |   |
|                           |         |  |  |  |  |  |

 

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EXHIBIT “E”

 

RULES AND REGULATIONS

 

The rules and regulations set forth in this Exhibit shall beand hereby are made a part of the Lease to which they are attached.Whenever the term “Tenant” is used in these rules and regulations, itshall be deemed to include Tenant, its employees or agents and any otherpersons permitted by Tenant to occupy or enter the Premises. The following rules andregulations may from time to time be modified by Landlord in the mannerset forth in Paragraph 29 of the Lease.

 

1.                                       Obstruction. The sidewalks, entries, passages, corridors, halls, lobbies, stairways,elevators and other common facilities of the Building shall be controlled byLandlord and shall not be obstructed by Tenant or used for any purposes otherthan ingress or egress to and from the Premises. Tenant shall not place anyitem in any of such locations, whether or not any such item constitutes anobstruction, without the prior written consent of Landlord. Landlord shall havethe right to remove any obstruction or any such item without notice to Tenantand at the expense of Tenant. The floors, skylights and windows that reflect oradmit light into any place in said Building shall not be covered or obstructedby Tenant.

 

2.                                       Ordinary Business Hours. Whenever used in the Lease or in these rules andregulations, the ordinary business hours of the Building shall be from 8:00 A.M.to 6:00 P.M. Monday through Friday and 8:00 A.M. to 1:00 P.M.Saturday of each week, excluding the legal holidays of New Year’s Day, MemorialDay, Independence Day, Labor Day, Thanksgiving Day, Christmas Day, and anyother holidays observed by owners of comparable buildings.

 

3.                                       Deliveries. Tenant shall insure that all deliveries of supplies to the Premises shallbe made only upon the elevator designated by Landlord for deliveries and onlyduring the ordinary business hours of the Building. If any person deliveringsupplies to Tenant damages the elevator or any other part of the Building,Tenant shall pay to Landlord upon demand the amount required to repair suchdamage.

 

4.                                       Moving. Furniture and equipment shall be moved in or out of the Building onlyupon the elevator designated by Landlord for deliveries and then only duringsuch reasonable hours and in such manner as may be prescribed by Landlord.Landlord shall have the right to approve or disapprove the movers or movingcompany employed by Tenant and Tenant shall cause such movers to use only theloading facilities and elevator designated by Landlord. If Tenant’s moversdamage the elevator or any other part of the Building, Tenant shall pay toLandlord upon demand the amount required to repair such damage.

 

5.                                       Heavy Articles. No safe or article the weight of whichmay, in the reasonable opinion of Landlord, constitute a hazard or damage tothe Building or its equipment, shall be moved into the Premises. Landlord shallhave the right to designate the location of such articles in the Premises.Safes and other heavy equipment, the weight of which will not constitute ahazard or damage the Building or its equipment shall be moved into, from orabout the Building only during such hours and in such manner as shall bereasonably prescribed by Landlord.

 

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6.                                       Nuisance. Tenant shall not do or permit anything to be done in the Premises, orbring or keep anything therein which would in any way constitute a nuisance orwaste, or obstruct or interfere with the rights of other tenants of theBuilding, or in any way injure or annoy them, or conflict with the lawsrelating to fire, or with any regulations of the fire department or with anyinsurance policy upon the Building or any part thereof, or conflict withany of the rules or ordinances of any governmental authority havingjurisdiction over the Building.

 

7.                                       Building Security. Landlord may restrict access to andfrom the Premises and the Building outside of the ordinary business hours ofthe Building. Landlord may require identification of persons entering andleaving the Building during this period and, for this purpose, may issueBuilding passes to tenants of the Building.

 

8.                                       Pass Key. The janitor of the Building may at all times keep a pass key tothe Premises, and he and other agents of Landlord shall at all reasonable timesbe allowed admittance to the Premises, but access within the Premises shall belimited by governmental regulations applicable to pharmaceutical companies.

 

9.                                       Locks and Keys for Premises. No additional lock or locks shall be placedby Tenant on any door in the Building and no existing lock shall be changedunless the written consent of Landlord shall first have been obtained. Areasonable number of keys to the Premises and to the toilet rooms, if locked byLandlord, will be furnished by Landlord, and Tenant shall not have anyduplicate key made. At the termination of this tenancy Tenant shall promptlyreturn to Landlord all keys to the Building, Premises and toilet rooms.

 

10.                                 Signs. Signs on Tenant’s entrance doors will be provided for Tenant by Landlord,the cost of the signs to be charged to and paid for by Tenant. Noadvertisement, sign or other notice shall be inscribed, painted or affixed onany part of the outside or inside of the Building, except upon theinterior doors as permitted by Landlord, which advertisement, signs, or othernotices shall be of Building standard order, size and style, and at such placesas shall be designated by Landlord.

 

11.                                 Use of Water Fixtures. Water closets and other water fixturesshall not be used for any purpose other than that for which the same areintended, and any damage resulting to the same from misuse on the part ofTenant shall be paid for by Tenant. No person shall waste water by tying backor wedging the faucets or in any other manner.

 

12.                                 No Animals, Excessive Noise. No animals shall be allowed in the offices,halls, corridors and elevators in the Building. No person shall disturb thetenants of this or adjoining buildings or space by the use of any radio ormusical instrument or by the making of loud or improper noises.

 

13.                                 Bicycles. Bicycles or other vehicles shall not be permitted anywhere inside oron the sidewalks outside of the Building, except in those areas designated byLandlord for bicycle parking.

 

14.                                 Trash. Tenant shall not allow anything to be placed on the outside of the Building,nor shall anything be thrown by Tenant out of the windows or doors, or down thecorridors, elevator shafts, or ventilating ducts or shafts of the Building. Alltrash shall be placed in

 

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receptaclesprovided by Tenant on the Premises or in any receptacles provided by Landlordfor the Building.

 

15.                                 Windows and Entrance Doors. Window shades, blinds or curtains of a uniform Buildingstandard, color and pattern only shall be used throughout the Building to give uniform colorexposure through exterior windows. Exterior blinds shall remain in the lowered positionat all times to provide uniform exposure from the outside. Tenant entrancedoors should be kept closed at all times in accordance with the fire code.

 

16.                                 Hazardous Operations and Items. Tenant shall not install or operate any steamor gas engine or boiler, or carry on any hazardous business in the Premiseswithout Landlord’s prior written consent, which consent may be withheld inLandlord’s absolute discretion. The use of oil, gas or inflammable liquids forheating, lighting or any other purpose is expressly prohibited. Explosives orother articles deemed extra hazardous shall not be brought into the Building.Landlord acknowledges that Tenant may have controlled substances withinthe Premises for use in connection with Tenant’s business and in compliancewith applicable laws.

 

17.                                 Hours for Repairs, Maintenance andAlterations. Any repairs,maintenance and alterations required or permitted to be done by Tenant underthe Lease shall be done only during the ordinary business hours of the Buildingunless Landlord shall have first consented in writing to such work being doneoutside of such times. If Tenant desires to have such work done by Landlord’semployees on Saturdays, Sundays, holidays or weekdays outside of ordinary businesshours, Tenant shall pay the extra cost of such labor.

 

18.                                 No Defacing of Premises. Except as permitted by Landlord, Tenantshall not mark upon, cut, drill into, drive nails or screws into, or in any waydeface the doors, walls, ceilings, or floors of the Premises or of theBuilding, nor shall any connection be made to the electric wires or electricfixtures without the consent in writing on each occasion of Landlord or its agents.Any defacement, damage or injury to the Premises or Building caused by Tenantshall be paid for by Tenant. Nothing contained in this Paragraph shall prohibitTenant from decorating the walls of the Premises with such items as arenormally found in first-class, commercial office buildings, so long as suchitems are no heavier than twenty (20) pounds.

 

19.                                 Limit on Equipment. Tenant shall not, without Landlord’s priorwritten consent, which consent shall not be unreasonably withheld or delayed,install or operate any equipment which will consume in conjunction with Tenant’sother equipment throughout the Premises, an amount of electricity which exceedsthat provided for under the Lease. If Tenant requires any interior wiring suchas for a business machine, intercom, printing equipment or copying equipment,such wiring shall be done by the electrician of the Building only at Tenant’s expense,and no outside wiring persons shall be allowed to do work of this kind unlessby the written consent of Landlord or its representatives. If telegraphic ortelephonic service is desired, the wiring for same shall be done as directed bythe electrician of the Building or by some other employee of Landlord who may beinstructed by the superintendent of the Building to supervise same, and noboring or cutting for wiring shall be done unless approved by Landlord or its representatives,as stated.

 

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20.                                 Solicitation. Landlord reserves the right to restrict,control or prohibit canvassing, soliciting and peddling within the Building.Tenant shall not grant any concessions, licenses or permission for the sale ortaking of orders for food or services or merchandise in the Premises, norinstall or permit the installation or use of any machine or equipment fordispensing goods or foods or beverages in the Building, nor permit thepreparation, serving, distribution or delivery of food or beverages in thePremises without the approval of Landlord and in compliance with arrangementsprescribed by Landlord. Only persons approved in writing by Landlord shall be permittedto serve, distribute, or deliver food and beverages within the Building, or touse the elevators or public areas of the Building for that purpose.

 

21.                                 Doors. Doors for entrance to and exit from the Premises shall be kept closedat all times, except when in use for entering or exiting the Premises.

 

22.                                 Captions. The caption for each of these rules and regulations is added asa matter of convenience only and shall be considered of no effect in theconstruction of any provision or provisions of these rules andregulations.

 

23.                                 No Smoking. Landlord shall prohibit smoking in any area other than certaindesignated smoking areas in the Building. Landlord shall notify Tenant of suchdesignated areas from time to time.

 

24.                                 No Use of Balconies. Tenant shall not have the right to use orhave access to the balconies of the Building.

 

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EXHIBIT “F”

 

SPECIAL STIPULATIONS

 

SpecialStipulations to Office Lease Agreement, dated February 7,2006,by and between 485 PROPERTIES, LLC, a Delaware limited liability company, as “Landlord,”and FIRST HORIZON PHARMACEUTICAL CORPORATION, a Delaware, corporation as “Tenant.”In the event of any conflict between the terms and conditions of any of thefollowing Special Stipulations and the terms and conditions of the main text ofthis Lease or of any of the other Exhibits to this Lease, the terms andconditions of these Special Stipulations shall control. In addition to anyother terms whose definitions are fixed and defined by these SpecialStipulations, the terms used herein with the initial letter capitalized shallhave the same meaning ascribed to them as set forth in the main text of thisLease or any of the other Exhibits. No inference or implication shall resultfrom or interpretation be based upon the deletion or omission of words ormaterial from the form on which this Lease appears or from a draft of thisLease, the words or material having been deleted or omitted being as thoughthey were never in such form or draft.

 

**1.****                                     ****Renewal Option****.**Tenant shall have the right to renew the Termfor two (2) additional periods of five (5) years each (the “RenewalTerm”), by giving Landlord prior written notice no more than twelve (12) monthsand no less than nine (9) months prior to the otherwise effectiveExpiration Date, that Tenant intends to exercise either of such renewal rights,subject to the following conditions:

 

(a)                                  Tenant shall be in possession of the Premisesand there shall not be an Event of Default by Tenant under any of the terms orprovisions of this Lease at the time such notice is given or at the time of thecommencement of the Renewal Term.

 

(b)                                 Tenant shall occupy the Premises during theRenewal Term under the same terms and conditions as specified in this Lease,except, for the first Renewal Term (x) Tenant shall be entitled to receive anAllowance of Five Dollars ($5.00) per rentable square feet in the Premises and(y) the Monthly Rental shall be Twenty Seven Dollars and Fifty Cents ($27.50)with 2.5% escalations every twelve (12) months and for the second Renewal Term (i) Tenantshall be entitled to receive an Allowance and other market concessions thenoffered by Landlord to similarly situated tenants, (ii) the Monthly Rentalfor any Renewal Term shall be the then Market Rate, but not less than theMonthly Rental for the Premises in effect immediately prior to the commencementof such Renewal Term. In no event shall Tenant be entitled to enter into morethan two (2) Renewal Terms.

 

(c)                                  As used herein, the term “Market Rate” shallbe determined as described in subparagraph (d) below as the amount of baseannual rent per square foot then being charged in comparable first-class officebuildings located in the Central Perimeter area of Atlanta, Georgia for spacecomparable to the Premises and taking into consideration all other relevant factorsestablishing similarity or dissimilarity between the comparable lease and theleasing of the Premises to Tenant for the Renewal Term, including withoutlimitation, escalations (including type, base year and stop), concessions,length of term, size and location of the Premises, building standard work letterand/or tenant improvement allowances, amenities

 

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offered,location of building, the cost and provision of parking spaces, and othergenerally applicable concessions, allowances, terms and conditions of tenancy.In determining the Market Rate, the greatest weight shall be accorded to leasesin the Building for comparable space entered into in the twelve (12) monthspreceding the date on which the Market Rate is determined.

 

(d)                                 Within thirty (30) days after Landlordreceives the notice of Tenant’s exercise of the renewal option with respect toany applicable Renewal Term, Landlord shall notify Tenant of the proposedMarket Rate. If Tenant rejects in writing the Market Rate proposed by Landlord(and Tenant shall be deemed to have accepted the same if Tenant does not objectthereto in a written notice to Landlord given within five (5) businessdays following Tenant’s receipt of Landlord’s proposed Market Rate), Landlordand Tenant shall negotiate in good faith for a period of fifteen (15) days toreach a mutual agreement on the Market Rate. If the parties are unable to cometo an agreement within such period, Tenant shall have the option, exercisableby written notice delivered to Landlord within five (5) days after theexpiration of such fifteen (15) day period, to elect to arbitrate such rate.Tenant shall have the option to specify in such notice its selection of a realestate appraiser, who shall act on Tenant’s behalf in determining the MarketRate or elect to allow the then-current Term of this Lease to expire on thisLease expiration date. Within ten (10) days after Landlord’s receipt ofTenant’s selection of a real estate appraiser, Landlord, by written notice toTenant shall designate a real estate appraiser, who shall act on Landlord’sbehalf in the determination of the Market Rate. Within fifteen (15) days of theselection of Landlord’s appraiser, the two appraisers shall render a jointwritten determination of the Market Rate. If the two appraisers are unable toagree upon a joint written determination within said fifteen (15) day period,the two appraisers shall select a third appraiser meeting the qualificationsstated below. Each of the parties shall bear one-half (1/2) of the cost of theappointment of the third appraiser and of the third appraiser’s fee. If thethree (3) appraisers are unable to agree upon the Market Rate withinfifteen (15) days following the appointment of the third appraiser, then eachappraiser shall separately determine the Market Rate, they shall average thetwo (2) closest figures, and within three (3) days after theexpiration of such fifteen (15) day period, the appointed third appraiser shallnotify Landlord and Tenant of such averaged determination of the Market Rate,which averaged determination shall be binding upon both Landlord and Tenant. Inthe event that one of the three appraised Market Rates is equidistant betweenthe highest and the lowest, then notwithstanding the foregoing sentence, thereshall be no averaging, and the equidistant Market Rate shall be the finalarbitrated rate. In the event that the appraisal process has not been completedprior to the commencement of the Renewal Term, then upon commencement of theRenewal Term, and until the appraisal process is completed (the “Interim Period”),Tenant shall pay Landlord monthly Rent equal to the Rent for the immediatelypreceding Lease year, until the increase in the Rent is determined by suchprocess as provided herein; provided, however, that such payments made duringthe Interim Period shall be subject to adjustment based upon the results ofsuch process. If, as a result of such appraisal process, it is determined thatTenant has underpaid Rent during the Interim Period, then such underpaid Rentshall be due from Tenant to Landlord within fifteen (15) days after expirationof the Interim Period. If, as a result of such appraisal process, it isdetermined that Tenant has overpaid Rent during the Interim Period, then suchoverpaid Rent shall be credited to Tenant’s next payment(s) of Rent falling dueunder this Lease. All appraisers selected in accordance with this subparagraphshall have at least ten (10) years prior experience in the CentralPerimeter area of metropolitan Atlanta, Georgia commercial leasing market andshall be

 

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members of the American Institute of Real Estate Appraisers or similarprofessional organization. If either Landlord or Tenant fails or refuses toselect an appraiser, the other appraiser shall alone determine the Market Rate.Landlord and Tenant agree that they shall be bound by the determination ofMarket Rate pursuant to this subparagraph for the Renewal Term. Landlord shallbear the fee and expenses of its appraiser and Tenant shall bear the fee andexpenses of its appraiser.

 

(e)                                  In the event Tenant fails timely to notifyLandlord in the manner herein specified, Tenant shall be conclusively deemed tohave waived its right to enter into any Renewal Term.

 

(f)                                    This renewal right shall be subject to reviewand approval by Landlord, in its reasonable discretion, of Tenant’s credit andfinancial condition at the time of such renewal.

 

**2.****                                     ****Right of First Offer****.**Subject to the rights of existing tenantswhich occupied space on the 16th floor as of January 1, 2006,Landlord hereby grants to Tenant a continuous right of first offer to leaseavailable space on the sixteenth (16th) floor of the Building (the “ROFOSpace”), which right shall be exercised by Tenant or its parent, subsidiary, oraffiliate, at either (i) by written notice given to Landlord upon Tenant’sdecision to lease such ROFO Space or (ii) by written notice given toLandlord within ten (10) business days after Landlord provides writtennotice to Tenant that Landlord is negotiating to lease the ROFO Space toanother occupant (Tenant’s failure to provide such notice by the expiration ofsuch ten (10) business day period being deemed Tenant’s waiver of anyright to lease the ROFO Space), subject to the following conditions:

 

(a)                                  Tenant, or its parent, subsidiary, oraffiliate, shall be in possession of the Premises and there shall not be anEvent of Default by Tenant under any of the terms or provisions of this Leaseat the time Landlord provides such notice to Tenant.

 

(b)                                 Tenant, or its parent, subsidiary, oraffiliate, shall occupy the Premises (including but not limited to the ROFOSpace) under the same terms and conditions as specified in this Lease,including the Allowance and Design Allowance, except that if Tenant exercisesthe right of first offer after the eighteenth (18th) month of theTerm, then the rental rate, allowance and concessions for the ROFO Space willbe the Market Rate, which shall be determined as described in Sections l(c) andl(d) of Exhibit F of this Lease.

 

(c)                                  The term of this Lease for ROFO Space shallbe conterminous with the Term for the remainder of the Premises, providedhowever, that if less than thirty-six (36) months are remaining in the Term forthe remainder of the Premises, then the Term with respect to the entirePremises (including the ROFO space) shall be extended to no less thanthirty-six (36) months from the date Tenant occupies the ROFO Space.

 

**3.****                                     ****Expansion Option****.**In addition to Tenant’s rights underParagraph 2 above, Landlord hereby grants to Tenant an exclusive right to leaseup to approximately 25,000 square feet of space on the Sixteenth (16th)floor of the Building, as shown on Exhibit “A-l” (the “Expansion Space”),subject to the following conditions:

 

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(a)                                  Such expansion option will exist only for thefirst eighteen (18) months of the initial Term of this Lease.

 

(b)                                 Tenant, or its parent, subsidiary, oraffiliate, shall be in possession of the Premises and there shall not be an Eventof Default by Tenant under any of the terms or provisions of this Lease at thetime Tenant provides such notice to Landlord.

 

(c)                                  Tenant, or its parent, subsidiary, oraffiliate, shall occupy the Expansion Space under the same terms and provisionsof this Lease, except that Tenant’s obligation to pay Rent with respect to theExpansion Space shall commence on the earliest to occur of (i) five (5) monthsafter the date the Expansion Space is Substantially Complete or the date theExpansion Space would have been Substantially Complete in the absence of TenantDelay, (ii) four (4) months after the date Tenant occupies theExpansion Space or any portion thereof for the purpose of conducting businesstherefrom; or (iii) the twenty second (22nd) month followingthe Commencement Date.

 

**4.****                                     ****Termination Option****.**Tenant, or its parent, subsidiary, oraffiliate, shall have the right to terminate this Lease effective as of anydate on or after the fifth (5th) anniversary of the CommencementDate, subject to the following terms and conditions:

 

(a)                                  In order for Tenant to exercise suchtermination right there shall not be an Event of Default by Tenant under any ofthe terms or provisions of this Lease at the time such notice is given or uponthe effective date of termination.

 

(b)                                 In order for Tenant to exercise suchtermination right, Tenant must provide written notice of such exercise toLandlord no later than nine (9) months prior to the effective date oftermination.

 

(c)                                  One (1) month prior to the effectivedate of termination of this Lease pursuant to this Special StipulationParagraph 4, Tenant shall pay to Landlord an amount equal to the sum of theunamortized portion of the Allowance, all other concessions, fees andallowances (including, without limitation, the Additional Allowance and theDesign Allowance) and any leasing commissions paid by Landlord with respect tothis Lease, calculated using an eight (8) year amortization schedule.

 

(d)                                 Tenant acknowledges that Landlord would notagree to grant Tenant this termination right unless Tenant agrees to payLandlord the applicable amount set forth in paragraph (c) above and thatsuch amount represents freely bargained for consideration for such termination.Landlord and Tenant acknowledge and agree that the payment of such applicable amountis intended to compensate Landlord for lost rentals, the unamortized balance offree rent, tenant improvements, leasing commissions, any other concessionsgranted to Tenant and other losses incurred by Landlord on account of any suchtermination. In no event, however, shall Landlord be obligated to prove theactual amount of such lost rentals, unamortized balance or other losses.

 

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(e)                                  On or prior to the effective date oftermination, Tenant shall surrender possession of the Premises to Landlord inaccordance with the provisions of this Lease. Upon termination, Landlord andTenant will be relieved of their obligations under this Lease, except for thoseaccruing prior to the effective date of such termination.

 

**5.****                                     ****Concourse Athletic Club****.**Upon the Commencement Date, Landlord shallprovide Tenant with an allowance of Twenty-five Thousand Dollars ($25,000) tobe applied towards initiation fees and membership dues at the Concourse AthleticClub.

 

**6.****                                     ****Signage****.**Tenant, at Tenant’s sole cost and expense,shall have the nonexclusive right to have Landlord install and maintain Tenant’stradename (“Tradename”) on the existing “monument” sign for the Building as itexists on the date of this Lease (the “Monument Sign”), subject to thefollowing terms and conditions:

 

a.                                       The Monument Sign may, at Landlord’s option,include the names or logos, or both, of other tenants in the Building from timeto time.

 

b.                                      Landlord reserves the right to review and approvethe location, color, size (which will be consistent with other two-floortenants), configuration, materials, workmanship and design of Tenant’sTradename.

 

c.                                       No assignee or subtenant of Tenant shallsucceed to Tenant’s right to maintain its Tradename on the Monument Sign.

 

d.                                      If Tenant ever occupies less than 15,000rentable square feet in the Building, then Landlord shall have the option, atTenant’s expense, to remove Tenant’s Tradename from the Monument Sign. In anyevent, Tenant’s rights under this Special Stipulation shall cease and terminateimmediately upon the expiration or any earlier termination of this Lease.

 

e.                                       All costs, if any, for which Tenant isresponsible under this Special Stipulation shall be paid by Tenant to Landlord,in full, within thirty (30) days after Tenant’s receipt of an invoice fromLandlord.

 

Tenantshall also be entitled, at no cost, to have the name of Tenant’s business,related entities, assignees, sublesses, senior managers and employees listed inthe building directory located in the lobby of the Building.

 

**7.****                                     ****Satellite Dish****.**Landlord hereby grants to Tenant the right toinstall, maintain and operate a satellite dish and related equipment (the “Equipment”)at its sole cost and expense on the roof of the Building subject to thefollowing terms and conditions:

 

(a)                                  The location of the Equipment shall beapproved by Landlord prior to Tenant’s installation of the Equipment. Tenantshall deliver to Landlord Tenant’s plans and specifications for theinstallation of the Equipment and the surrounding screening for review andapproval by Landlord’s engineer not less than thirty (30) days prior tocommencing installation of the Equipment. Tenant shall reimburse Landlord forall costs and expenses incurred by

 

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Landlordin connection with Landlord or its designated agent’s review and approval ofsuch plans and specifications as well as ensuring Tenant’s compliance with thisprovision.

 

(b)                                 Tenant shall have the right to access and usea portion of the Building’s roof for the installation of the Equipment at noadditional charge to Tenant. Tenant shall install the Equipment in anaesthetically pleasing manner and exercise all reasonable steps to shield or screenthe Equipment from public view. Tenant shall fence or screen the Equipment soas to minimize any risks to ensure that the Equipment does not create anuisance. Tenant shall at its cost, be entitled to run riser cable to the roofof the Building and Landlord will provide adequate vertical space therefor atno charge. Tenant shall be responsible for any required roof reinforcement andfor ensuring the integrity of the Building’s roof and warranty thereon. Tenant shallhave 24 hour access to the roof and all associated areas where Tenant’s cablingaccesses between the Premises and the roof, subject to Landlord’s reasonable rules andregulations.

 

(c)                                  Tenant shall maintain and operate theEquipment in compliance with all applicable laws, rules, regulations andordinances at its sole cost and expense.

 

(d)                                 At Landlord’s option, Landlord shall perform allroof penetrations and modifications necessary for the installation, maintenanceor removal of Tenant’s Equipment. Tenant will reimburse Landlord for allreasonable costs and expenses incurred by Landlord in connection with such roofpenetrations and modifications.

 

(e)                                  Tenant hereby agrees to indemnify and holdLandlord, its agents, employees, contractors and representatives, harmless fromand against any and all cost, claims, damages (including, but not limited to,any damage to the Building, the roof or Landlord’s property), causes of actionand liability which may arise by reason of any occurrence attributable toor arising out of Tenant’s installation, maintenance, repair, operation orremoval of any of the Equipment, including without limitation, any claim orcause of action for injury to or death of any person or damage to any propertyarising therefrom and Tenant agrees to defend any claim or demand againstLandlord, its agents or employees arising out of any such occurrence. Tenant shall,upon thirty (30) days prior written notice from Landlord, reimburse Landlordfor all costs and expenses incurred by Landlord as a result of Tenant’soperation of the Equipment, including damages to the Building and thefurnishing of electric power for the operation of the Equipment.

 

(f)                                    Upon the expiration or earlier termination ofthis Lease, Tenant shall, at its sole expense, promptly remove the Equipmentand repair all damage to the Building caused thereby.

 

(g)                                 Tenant’s Equipment shall not hinder orunreasonably interfere with any other tenants’ or licensees’ installation,operation and maintenance or repair of antennae or satellite equipment.

 

(h)                                 Landlord reserves the right to enter into acontract with a third-party manager for the leasing and management of the roofof the Building. Tenant shall be responsible for complying with all reasonable rules andregulations established by such manager, provided

 

F-6

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however, that Tenant shall in no event be subject to any additionalcosts or limitation of rights as a result thereof.

 

**8.****                                     ****Auxiliary Air****.**Landlord hereby grants to Tenant the right toinstall, maintain and operate package air conditioning units and relatedequipment (the “Auxiliary AC”) at its sole cost and expense in the Premisessubject to the following terms and conditions:

 

(a)                                  The location of the Auxiliary AC shall beapproved by Landlord prior to Tenant’s installation of the Auxiliary AC. Tenantshall deliver to Landlord Tenant’s plans and specifications for theinstallation of the Auxiliary AC and related equipment for review and approvalby Landlord’s engineer not less than thirty (30) days prior to commencinginstallation of the Auxiliary AC. Tenant shall reimburse Landlord for all costsand expenses incurred by Landlord in connection with Landlord or its designatedagent’s review and approval of such plans and specifications as well asensuring Tenant’s compliance with this provision.

 

(b)                                 Tenant shall maintain and operate theAuxiliary AC in compliance with all applicable laws, rules, regulations andordinances at its sole cost and expense.

 

(c)                                  Tenant hereby agrees to indemnify and holdLandlord, its agents, employees, contractors and representatives, harmless fromand against any and all cost, claims, damages (including, but not limited to,any damage to the Building, the Premises or Landlord’s property), causes ofaction and liability which may arise by reason of any occurrence attributableto or arising out of Tenant’s installation, maintenance, repair, operation orremoval of any of the Auxiliary AC, including without limitation, any claim orcause of action for injury to or death of any person or damage to any propertyarising therefrom and Tenant agrees to defend any claim or demand againstLandlord, its agents or employees arising out of any such occurrence. Tenant shall,upon thirty (30) days prior written notice from Landlord, reimburse Landlordfor all costs and expenses incurred by Landlord as a result of Tenant’soperation of the Auxiliary AC, including damages to the Building and thefurnishing of electric power for the operation of the Auxiliary AC.

 

(f)                                    Upon the expiration or earlier termination ofthis Lease, Tenant shall, at its sole expense, promptly remove the Auxiliary ACand repair all damage to the Building and Premises caused thereby.

 

(g)                                 Tenant’s Auxiliary AC shall not hinder orunreasonably interfere with any other tenants’ or licensees’ enjoyment of theBuilding.

 

**9.****                                     ****Landlord’s Representationsand Warranties****.**Landlordhereby represents and warrant to Tenant as follows:

 

(a)                                  Due Authorization and Execution. This Lease is duly authorized and shall bebinding upon Landlord.

 

F-7

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(b)                                 Due Organization. Landlord is duly organized, validlyexisting and in good standing under the laws of the State of Delaware and isduly authorized and qualified to do all things required of Landlord under thisLease within the State in which the Property is located.

 

(c)                                  No Breach of Other Agreements. This Lease does not violate the terms of anyother agreement to which Landlord is a party.

 

(d)                                 Title. Landlord owns fee simple title to the Property.

 

10.                                 **Tenant’s Representations andWarranties****.**Tenant herebyrepresents and warrant to Landlord as follows:

 

(a)                                  Due Authorization and Execution. This Lease is duly authorized and shall bebinding upon Tenant.

 

(b)                                 Due Organization. Tenant is duly organized, validly existingand in good standing under the laws of the State of Delaware and is duly authorized and qualified to doall things required of Tenant under this Lease within the State in which theProperty is located.

 

(c)                                  No Breach of Other Agreements. This Lease does not violate the terms of anyother agreement to which Tenant is a party.

 

11.**                                ****Storage****.**To the extent available, Tenant shall beentitled to rent storage space in the basement of the building currently knownas Corporate Center Four at an annual rate of $12.00 per square foot of useablearea.

 

F-8

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EXHIBIT “G”

 

CLEANING SPECIFICATIONS

 

Lobby and Corridors - DailyService

 

1.               Sweep and mop lobby entrance vestibule floorsnightly and machine scrub floors as necessary.

 

2.               Clean and sweep public elevator lobbycorridor flooring nightly. (Machine scrub floors as necessary.) Carpeting shallbe vacuumed and spots removed nightly and shampooed as necessary.

 

3.               Wipe down, with a soft cloth, all metalsurfaces in the lobby and building as required.

 

4.               Dust all lobby and public corridor wallsnightly and wash as required.

 

5.               Clean entrances and lobby doors at least onceper day. Clean all elevator, stairway, utility and office doors as necessary toremove dirt and finger marks.

 

6.               Clean and sanitize all public telephoneareas. (Neatly arrange and replace, as needed all phone books.)

 

7.               Screen all exterior sand urns of cigarettebutts and debris in the canopy area. Clean container and add sand as needed.(CONTRACTOR supplies sand.)

 

8.               Empty all trash receptacles, clean containerwith clean, damp cloth, and replace plastic liner. (MANAGER may supplyliners.)

 

9.               Remove all debris from landscaped pots andplanters. (Report any thefts, broken pots or missing plants.)

 

10.         Dust and clean all horizontal surfaces less than seven feet.

 

11.         Clean and remove smudges and marks on walls and wall coverings.

 

12.         Clean, polish and straighten all furniture as needed.

 

13.         Wipe clean all directory boards with clean, soft cloth.

 

14.         Wipe clean all fire extinguisher cabinets and glass. (Report brokenglass or missing extinguishers).

 

15.         Wipe clean all elevator doors, jambs, call plates, and hall lanterns.

 

16.         Dust all lobby and corridor signage.

 

17.         Report any maintenance issues. For example:  lights burned out, stopped up toilets, and crackedflooring.

 

18.         Secure all doors upon completion of work assignments. 

 

Lobbies and Corridors -Weekly Service

 

1.               Clean and polish all entry metal and sills.

 

H-1

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2.               Dust and clean or polish all baseboards.

 

3.               Spot clean all carpeted areas.

 

4.               Dust all ledges and exit signs.

 

5.               Dust all walls above seven feet.

 

6.               Maintain lobby floors.

 

7.               Mop stone, ceramic tile, marble, terrazzoflooring (including exterior surfaces under the canopy).

 

8.               Clean resilient flooring.

 

Lobbies and Corridors -Monthly Service

 

1.               Clean all ceiling vents and grills.

 

2.               Dust high ceiling corners and entryways.

 

3.               Dust and clean light fixtures and covers(interior and exterior).

 

4.               Clean and treat all wood paneling andfurniture as requested.

 

5.               Strip, reseal or re-wax common area floors asnecessary.

 

6.               Shampoo carpet areas as necessary.

 

7.               Clean, detail and sanitize public phones andenclosures.

 

8.               Dust and clean all fire lobby doors insideand out.

 

9.               Polish door floor plates. 

 

Offices - Daily Service

 

1.               Remove hand spots or smudges from entrydoors.

 

2.               Using a dustless mop, damp mop allnon-carpeted areas.

 

3.               Vacuum and spot clean carpets in all trafficareas, removing staples and other debris.

 

4.               Properly position furniture, books andmagazines in reception areas.

 

5.               Properly position furniture in offices andconference rooms.

 

6.               Blackboards will be erased/chalk boardscleaned *upon request only.*

 

7*.**              *Remove fingerprints and smudges from allwalls.

 

8.               Spot clean all partition glass and mirrors.

 

9.               Remove all fingerprints and smudges fromlight switch covers, electrical outlet cover plates and doorknob handles.

 

10.         Dust all horizontal surfaces less than seven feet, furniture, andequipment. DO NOT dust desks, conference tables or counters that are clutteredwith paperwork.

 

I1.           Dust and replace all desk ornaments, phones and machines in theiroriginal position.

 

F-2

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12.         Clean furniture fabric with a whiskbroom to sweep off any dust,paper bits, and erasures as needed. (Remove all staples)

 

13.         Empty all ashtrays in smoking lounges and wipe clean.

 

14.         Empty all wastebaskets and carry trash to designated areas for removal;replace plastic liners.

 

15.         Clean and wash all lunchroom tabletops, counters, sinks, cabinets,refrigerator, and stove (exterior only) surfaces. (Report any insect problems)

 

16.         Report all maintenance issues.

 

17.         Perform additional services requested by tenant (excludingextensive carpet cleaning, appliance cleaning, dishwashing, and other similarservices that may require invoicing to the tenant).

 

18.         Before leaving any suite, lock all entrance doors and interior doors asrequested.

 

19.         Clean all water fountains. 

 

Offices - Weekly Service

 

1.               Damp wipe all interior doors with a treatedcloth.

 

2.               Detail vacuum entire carpet areas; removestaples and other debris.

 

3.               Polish all desktops that are cleared ofpaperwork.

 

4.               Dust all ledges, files, baseboards, and sillsunder seven feet.

 

5.               Vacuum all furniture or wipe vinyl furnitureclean.

 

6.               Dust all lower parts of furniture.

 

7.               Detail and clean all kitchens or wet barareas.

 

8.               Empty large recycling bins from offices intoseparate container to be disposed of into specially designated recyclingdumpsters.

 

Offices - Monthly Service

 

1.               Completely clean all partitions and doors,doorjambs, door floor plates, glass and mirrors from floor to ceiling.

 

2.               Dust all ledges, wall moldings, shelves, etc.over seven feet.

 

3.               Dust windowsills and ledges.

 

4.               Dust clean or vacuum all drapes and blinds.

 

5.               Brush down and clean all vents and grills.

 

6.               Scrub and wax all tile floors.

 

7.               Sweep stairwells and dust handrails.

 

8.               Detail all desks and office furniture.

 

9.               Dust and clean all light fixtures and covers.

 

10.         Detail and clean all kitchens, wet bars or lunch room areas.

 

F-3

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11.         Clean all baseboards.

 

12.         Detail and vacuum chairs and upholstered furniture. 

 

Restrooms - Daily Service

 

1.               Dust and clean restroom signage anddoors.

 

2.               Vacuum all restroom vestibules andremove spots.

 

3.               Wet mop and disinfect tile/marble floor,paying particular attention to areas under urinals and toilet bowls.

 

4.               Clean alkaline deposits and soap spills fromfloor tile grout.

 

5.               Wash and disinfect all basins, urinals, andtoilet bowls.

 

6.               Clean underside rims of urinals and toiletbowls.

 

7.               Wash both sides of toilet seats with soap andwater and disinfect.

 

8.               Empty, clean, sanitize, and polish all paperdispensers, replacing liners nightly.

 

9.               Clean and polish all mirrors.

 

10.         Dust ledges and base boards.

 

11.         Damp wipe, polish, and shine all chrome, metal fixtures, hand plates,kick plates, utility covers, plumbing, clean-out covers, and doorknobs.

 

12.         Spot clean with disinfectant all partitions and tile walls. (Report anygraffiti and remove if possible)

 

13.         Fill all toilet latrines, soap, sanitary napkin, and towel dispensersas necessary.

 

14.         Report all burned out lights, leaking faucets, running plumbing, orother maintenance needs.

 

15.         Janitor carts *will not*bebrought into restroom areas or used to prop open doors.

 

16.         Restroom doors will be propped open with a rubber stop, and a signindicating, “Restroom Closed for Cleaning”, will be placed outside.

 

17.         Empty all restroom trash, including sanitary disposal. Replacesanitary disposal liner. 

 

Restrooms - Semi-Weekly(twice per week)

 

1.     Pour clean water down floor drains to prevent sewer gas fromescaping. 

 

Restrooms - Weekly Service

 

1.               Wash down all walls.

 

2.               Wash all waste containers and disinfect.

 

3.               Clean and polish all doors, doorplates, andhardware. 

 

Restrooms - Monthly Service

 

1.               Wipe clean all ceilings, lights, andfixtures.

 

2.               Machine scrub tile floors.

 

F-4

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3.               Shampoo, as needed, and clean vestibulecarpet.

 

4.               Detail all toilet compartments and fixtures.

 

5.               Brush and clean all grills and vents. 

 

Elevators - Daily Service

 

1.               Vacuum and clean all spots and stains fromcarpet.

 

2.               Dust and clean baseboards.

 

3.               Dust and wipe with clean soft cloth allmetal. (Do not use abrasives).

 

4.               Remove all fingerprints from doors and walls(interior and exterior).

 

5.               Dust and clean elevator ceilings and lights.

 

6.               Remove gum, stains or debris from ceilings,handrails and elevator tracks.

 

7.               Dust, disinfect and clean emergency phone andsecurity compartments.

 

8.               Clean all call buttons, call plates, andsignage.

 

9.               Report any burned-out lights or malfunctionsof elevator.

 

10.         Clean elevator tracks. 

 

Elevators - Weekly Service

 

1.               Detail call buttons and call plates.

 

2.               Disinfect emergency phones.

 

3.               Polish brass elevator tracks. 

 

Stairwells - Daily Service

 

1.               Police entire stairwell, removing all trash,cigarette butts, etc.

 

2.               Report any exit signs that are burned out.

 

3.               Report any lights burned-out. 

 

Stairwells - Bi-WeeklyService

 

1.               Sweep down all stairs and landings.

 

2.               Dust all handrails, banisters, and ledges.

 

3.               Clean all walls of fingerprints and smudgemarks, etc.

 

4.               Dust and clean all stairwell signage.

 

5.               Dust and clean all emergency phones. 

 

Stairwells - Monthly Service

 

1.               Wipe clean all stairwell doors and doorjambs.

 

2.               Wet mop or vacuum all stairs and landings, asrequired. (Clean base boards if necessary)

 

F-5

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3.               Dust and clean all lights and fixtures.

 

4.               Dust and clean all emergency fire equipmentand plumbing.

 

5.               Wipe clean all handrails.

 

F-6

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Exhibit “H”

 

**Concourse V— Building Standards**

April 2005

 
| **Corridor Partition**              |   | 3-5/8” metal stud (24”o.c.),  1/2” gwb (Type ‘C’) each side with 1-1/2” fire safing insulation (floor to  underside of structure above)                                                                           |
|-------------------------------------|--------|-------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| ** **                          |   |                                                                                                                                                                                                                                            |
| **Demising Partition**              |   | 3-5/8” metal stud (24”o.c),  1/2” gwb (Type ‘C’) each side with 1-1/2” fire safing insulation (floor to  underside of structure above)                                                                            |
| ** **                          |   |                                                                                                                                                                                                                                            |
| **Interior Partition**              |   | 3-5/8” metal stud (24”o.c),  1/2” gwb each side, (floor to underside of suspended ceiling or floor  to underside of structure above)                                                                                             |
| ** **                          |   |                                                                                                                                                                                                                                            |
| **Tenant Entry Single Door**        |   | 3’-0” x 8’-l 0” x 1-3/4”  solid core, Mahogany veneer  4 hinges, 1 lockset, 1 closer, 1 doorstop                                                                                                                       |
| ** **                          |   |                                                                                                                                                                                                                                            |
| **Tenant Entry Double Door**        |   | 3’-0” x 8’-10” x 1-3/4”  solid core, Mahogany veneer  6 hinges, 1 lockset, 2 closers                                                                                                                                   |
| ** **                          |   |                                                                                                                                                                                                                                            |
| **Tenant Interior Door**            |   | 3’-0” x 8’-10” x 1-3/4”  solid core, Mahogany veneer  3 hinges, 1 lockset, 1 doorstop                                                                                                                                  |
| ** **                          |   |                                                                                                                                                                                                                                            |
| **Door Frame**                      |   | Hollow metal frame,  painted                                                                                                                                                                                                                    |
| ** **                          |   |                                                                                                                                                                                                                                            |
| **Hardware**                        |   | Lever — polished brass                                                                                                                                                                                                                     |
| ** **                          |   |                                                                                                                                                                                                                                            |
| **Ceiling Height**                  |   | 9’-0” in Tenant spaces  and Common Corridors                                                                                                                                                                                          |
| ** **                          |   |                                                                                                                                                                                                                                            |
| **Ceiling Grid**                    |   | 2x2 suspended grid  15/16” wide                                                                                                                                                                                                            |
| ** **                          |   |                                                                                                                                                                                                                                            |
| **Ceiling Tile**                    |   | 2x2 tiles — Armstrong “Cirrus”  584, tegular edge         Contact:  Armstrong (Jodi Teeter) 1.888.234.5464 x 8082                                                                        |
| ** **                          |   |                                                                                                                                                                                                                                            |
| **Fire Extinguisher**               |   | Woll Hung: Cosmic 10E  multipurpose dry chemical extinguisher  Cabinet: JL Industries #1012521, Ambassador steel cabinet with ADAC option                                                                                                       |
| ** **                          |   |                                                                                                                                                                                                                                            |
| **Exterior Window Blinds**          |   | Charcoal gray  horizontal metal mini-blinds                                                                                                                                                                                                     |
| ** **                          |   |                                                                                                                                                                                                                                            |
| **Fluorescent Fixtures**            |   | 2x2 - 9 cell, 3 lamp  parabolic  2x4 - 18 cell, 3 lamp parabolic — Lithonia Lighting **2PM3N G A  3 32 18 LD 277 GEB**                                                                                                                     |
| ** **                          |   |                                                                                                                                                                                                                                            |
| **Down Lights**                     |   | Lightolier #1102 PI  frame in kit with #1151 specualr clear Alzak reflector; 150W R40 lamp                                                                                                                                                      |
| ** **                          |   |                                                                                                                                                                                                                                            |
| **Exit Signs — Common Areas**  |   | Lithonia Lighting LRP  series, Precise Collection, brushed oluminum housing, double face, green on clear  acrylic panel, LED edge lit exit light, dual voltage 120/277 V, with  directional arrow(s) as required for specific ceiling location. |
| ** **                          |   |                                                                                                                                                                                                                                            |
| **Exit Signs — Tenant Spaces** |   | Lithonia Lighting Die  Cast Aluminum Exit with LED lamps, brushed aluminum housing, double face,  with green panel color, dual voltage 120/277 V, with directional arrow(s) as  required for specific ceiling location.                         |

 

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| **Coverplates &  Electrical Devices**              |   | TBD                                                                                                                                                                                                                                                       |
|-------------------------------------------------------------|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| ** **                                                  |   |                                                                                                                                                                                                                                                      |
| **HVAC**                                                    |   | 2x2 supply &  return air diffusers                                                                                                                                                                                                               |
| ** **                                                  |   |                                                                                                                                                                                                                                                      |
| **Elevator  Lobby Limestone Tile**                          |   | Tiles: 12x12,  color: Pewter Fossil, finish: polished.  Grout: Hydromet, standard, color: Antique White #370  Edge Strip: Aluminum #CTC38.              Contact  Bryan Parker @ Spectra. |
| ** **                                                  |   |                                                                                                                                                                                                                                                      |
| **Elevator  Lobby Inset Carpet**                            |   | Manufacturer:-.  Bolyu; Style: Vega; Color: VGA73 Holm Oak                                                                                                                                                                                                |
| ** **                                                  |   |                                                                                                                                                                                                                                                      |
| **Corridor  Carpet**                                        |   | Manufacturer: Show  Contact; Style: Shimmer Ultraloc Pattern #5A017; Color: Natural Tonic #17755                                                                                                                                                          |
| ** **                                                  |   |                                                                                                                                                                                                                                                      |
| **Elevator  Lobby & Corridor Rubber Base**         |   | Manufacturer:  Roppe; Style: 4” continuous cove base; Color: Camel #191                                                                                                                                                                              |
| ** **                                                  |   |                                                                                                                                                                                                                                                      |
| **Elevator  Lobby & Corridor Fabric Wallcovering** |   | Manufacturer:  Luna Textiles; Style: Calligraph; Color: Stone #HCL-156                                                                                                                                                                                    |
| ** **                                                  |   |                                                                                                                                                                                                                                                      |
| **Elevator  Lobby & Corridor Paint**               |   | Manufacturer:  ICI; Style: (2) coats eggshell; Color: 20YY 49/071-537  For use on all GWB soffits and fascias (not light coves)                                                                                                                      |

 

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