EXHIBIT 10.1
STATE OF GEORGIA
COUNTY OF GWINNETT
LEASE
THIS LEASE, made this 9th day of July, 1998, between XXXXXXXXX ATLANTA,
L.P., a Georgia limited partnership, (hereinafter called "Lessor"), and nFRONT,
INC., a Georgia Corporation, (hereinafter called "Lessee");
WITNESSETH: THAT,
WHEREAS, Lessor is the owner of that certain building situated at 000
Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx (hereinafter called the
"Building") and located on the property (hereinafter called the "Land"; the Land
and the Building are herein collectively called the "Property") described on
EXHIBIT "A", attached hereto and by this reference incorporated herein; and
WHEREAS, Lessee wishes to lease from Lessor approximately 13,747
rentable square feet of the Building, which area is outlined in red on the
diagram marked EXHIBIT "B", attached hereto and by this reference incorporated
herein and made a part hereof (hereinafter called the "Premises");
NOW, THEREFORE, in consideration of the payment of the rent and the
keeping and performance of the covenants and agreements by Lessee as hereinafter
set forth, Lessor does hereby lease to Lessee, and Lessee does hereby lease from
Lessor, the Premises. Lessee hereby accepts the Premises in their condition
existing as of the date hereof (except as outlined in Section 10.1 hereof) and
hereby acknowledges that Lessor has not made any representation or warranty as
to the suitability of the Premises for the conduct of Lessee's business. No
easement for light or air is included in the Premises.
FOR AND IN CONSIDERATION of the leasing of the Premises as aforesaid,
the parties hereby covenant and agree as follows:
1. TERM. Subject to Section 22 hereof, the term (hereinafter called the
"Lease Term") of this Lease shall commence on the sooner of August 1, 1998 or
upon completion of improvements (hereinafter called the "Commencement Date")
and, unless sooner terminated pursuant to the provisions hereof, shall expire at
11:59 p.m. on the day before the date which is five (5) years after the
Commencement Date.
2. RENT.
2.1 The annual base rental (hereinafter called "Annual Base Rental") for
the Premises shall be as per the following schedule. The Annual Base Rental
shall be payable in monthly installments per the schedule below (hereinafter
called "Monthly Base Rent") in advance on the first day of each and every
calendar month during the lease term. The Monthly Base Rent shall be prorated at
the rate of 1/30th of the Monthly Base Rent per day for any partial month.
YEAR ANNUAL RENT PER/SF TOTAL ANNUAL RENT MONTHLY BASE RENT
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1 $14.50 $199,331.50 $16,610.95
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2 $14.93 $205,242.71 $17,103.55
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3 $15.38 $211,428.86 $17,619.07
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4 $15.84 $217,752.48 $18,146.04
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5 $16.32 $224,351.04 $18,695.92
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2.2 Lessee shall pay the rent and all other sums, amounts,
liabilities, and obligations which Lessee herein assumes or agrees to pay
(whether designated Base Rent, additional rent, costs, expenses, damages,
losses, or otherwise) (all of which are hereinafter called "Amount Due") as
herein provided promptly at the times and in the manner herein specified without
deduction, setoff, abatement, counterclaim, or defense. If any Amount Due is not
received by Lessor within ten (10) days following the date on which it is due,
Lessee shall pay Lessor a late charge equal to five percent (5%) of the amount
of such past due payment, notwithstanding the date on which such payment is
actually paid to Lessor. If such Amount Due is not paid within thirty (30) days
of the date on which it was originally due, then, in addition to such late
charge, Lessee shall pay Lessor interest on such Amount Due from the date on
which it was originally due until the date it is actually paid at a rate per
annum equal to the lesser of (i) the prime rate of interest announced by
Wachovia Bank of Georgia, N.A., or its successors, from time to time for 90-day
unsecured loans to its best commercial customers plus five percent (5%) or (ii)
the maximum rate permitted by applicable law. Any such late charge and interest
shall be due and payable at the time of actual payment of the Amount Due. Any
Amount Due payable to Lessor by Lessee shall be paid in cash or by check at the
office of Lessor, x/x Xxxxxxxxxx Xxxx/Xxxxxxx, Xxx., Xxxxx 000, 00000 Xxxxxxx
Xxxxxx Xxxx, Xxxxxx, Xxxxxxx 00000, or at such other place or places as Lessor
may from time to time designate in writing.
3. INTENTIONALLY DELETED.
4. SECURITY DEPOSIT. Contemporaneously with the execution of this Lease,
Lessee shall pay Lessor a security deposit in the amount of TWENTY-FIVE THOUSAND
AND 00/100 DOLLARS ($25,000.00) (hereinafter called the "Security Deposit") to
be held by Lessor without interest for the performance by Lessee of Lessee's
covenants and obligations under this Lease. If Lessee is then in full compliance
with this Lease, and Lessor has not previously applied any portion of such
Security Deposit to cure any default of Lessee, then within thirty (30) days
after the date which is twelve (12) months after the Commencement Date, Lessor
shall return a portion of said Security Deposit, being the amount of $8,389.05,
to Tenant. If Lessee shall at any time fail to pay any Amount Due, and such
failure shall continue beyond the expiration of any applicable grace or cure
period, Lessor may, but shall not be obligated to, from time to time and without
prejudice to any other remedy, apply all or any portion of the Security Deposit
to the extent necessary toward the payment of any such Amount Due. In the event
Lessor applies the Security Deposit or a portion thereof as provided in this
Section 4, Lessee shall immediately upon notice from Lessor of such application
pay the amount so applied to Lessor, it being the intent of the parties that the
Security Deposit held by Lessor always be in the amount stated above. It is
expressly understood and agreed, however, that the Security Deposit shall not be
considered an advance payment of rent or a measure of Lessor's damages in the
event of any default by Lessee. If, at the expiration or other termination of
this Lease, Lessee is not in default of any of its covenants, the Security
Deposit shall be returned by Lessor to Lessee without interest.
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5. USE.
5.1 Lessee (and its permitted assignees and subtenants) shall use the
Premises only for general business, administrative and sales and related
purposes, not in violation of the restrictive covenants hereinafter referred to,
and for no other purpose without the prior written consent of Lessor. Lessee
shall operate its business in the Premises during the entire Lease Term and in a
reputable manner in compliance with all applicable laws, ordinances,
regulations, covenants, restrictions, and other matters shown on the public
records, now in force or hereafter enacted. Lessee will not permit, create, or
maintain any disorderly conduct, trespass, noise, or nuisance whatsoever about
the Premises which has a tendency to annoy or disturb any persons occupying
adjacent premises either within or without the Building.
5.2 Lessee shall not place or maintain machines, equipment, or other
apparatus which causes vibrations or noise that may be transmitted to the
Building structure or to any space to such a degree as to be reasonably
objectionable to Lessor or to any tenant, occupant, or other person in the
Building. Neither Lessee nor any of Lessee's employees, agents or invitees shall
place or maintain within the Premises any stoves, ovens or space heaters, except
that Lessee may maintain one (1) microwave oven within the Premises so long as
such microwave oven uses standard 110V electrical service. Lessee shall not make
or permit any odor that is objectionable to the public or to other occupants of
the Building, to emanate from the Premises, and shall not create, permit, or
maintain a nuisance thereon, and shall not do any act tending to injure the
reputation of the Building.
5.3 Lessee shall cause all loading and unloading of any goods or
materials delivered to or sent from the Premises to be done only in the loading
dock area of the Premises or, if no loading dock area is located at the
Premises, then at the loading dock area of the Building or such other dock area
as Lessor may designate. Under no circumstances shall Lessee allow any goods or
materials delivered to or sent from the Premises to be stored on, accumulate on
or obstruct the loading dock area, dumpster pad, sidewalks, driveways, parking
areas, entrances or other public areas or spaces of the Building or the
Property. Lessee acknowledges that violations of this Paragraph 5.3 shall
constitute a material breach of this Lease.
5.4 Lessee shall not perform or permit any work, including, but not
limited to, assembly, construction, mechanical work, painting, drying, layout,
cleaning, or repair of goods or materials, to be done on the loading dock,
sidewalks, driveways, parking areas, landscaped areas of the Building or the
Property.
5.5 Lessee shall not use, handle, store, deal in, discharge, or
fabricate any environmentally hazardous wastes, substances or materials as the
same are now or hereafter may be defined or classified by any local, state, or
federal environmental protection legislation or regulation issued pursuant
thereto.
5.6 Lessee shall not abandon or vacate the Premises at any time during
the Lease Term. Notwithstanding anything to the contrary contained in this
Lease, if Lessee deserts or vacates the Premises, Lessor's sole remedy for such
default shall be to terminate this Lease without further liability on the part
of the Lessor or Lessee. The preceding sentence is not intended and shall not be
deemed to waive or limit any of Lessor's rights or remedies in connection with
or based on any default other than vacation or desertion.
6. UTILITIES AND SERVICE.
6.1 Except to the extent directly contracted for by Lessee, Lessor shall
furnish or cause to be furnished to the Premises between 7:00 a.m. and 6:00 p.m.
Monday through Friday and between 8:00 a.m. and 1:00 p.m. on Saturdays,
exclusive of all holidays, subject to any rules and regulations of the Building,
water and sewer services suitable for Lessee's intended use of the Premises,
electricity as set forth in Paragraph 6.2 hereof, and heat and air conditioning
required in Lessor's reasonable judgment for the comfortable use and
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occupation of the Premises. As used in this Paragraph 6.1, the term "holiday"
shall mean New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day. Should Lessee desire either heating or air
conditioning at other times, Lessor agrees to provide same upon reasonable
advance request by Lessee, but at Lessee's expense, at such hourly rates as
reasonably may be determined from time to time by Lessor, which charge Lessee
shall pay within thirty (30) days after being billed therefor. Lessor shall
provide lighting facilities for the common entries, hallways, stairways, and
restroom facilities in the Building. Lessee will install and pay for its own
telephone service.
6.2 Lessor, at Lessor's sole cost and expense, shall cause to be
furnished to the Premises sufficient power for building standard fluorescent
lighting, personal computers, normal office copying machines, typewriters, voice
writers, calculating machines, and other normal office machines of similar low
electrical consumption; but not including electricity required for electronic
data processing equipment, special lighting, or any other item of electrical
equipment which singly consumes more than 0.25 kilowatts at rated capacity or
requires a voltage other than 120 volts single phase except as expressly
provided in this Lease. Lessor shall provide Lessee an electrical allowance with
up to $1.60/ft. per year ($21,995.20) for electricity, and any cost of
electrical consumption in excess of such allowance shall be the expense of
Lessee. Lessee shall pay any excess electrical charges to Lessor at the end of
the first year of occupancy by Lessee. In years 2 - 5 of the Lease Term, Lessee
shall pay to Lessor on a monthly basis an estimate of the excess electrical
costs, which shall be based on the previous year's actual cost with appropriate
adjustments based upon any increases in electrical rates by the provider of such
utility. At the end of each Lease year, Lessor shall provide Lessee with an
accounting of the electrical usage and reconcile with Lessee on actual versus
budgeted. If there is money due Lessee in any year, Lessor shall within thirty
(30) days provide Lessee with the difference. As well if monies are owed to
Lessor in any year then Lessee shall within thirty (30) days provide Lessor with
the amount of the shortfall. It is understood by Lessee that Lessor currently
sub meters the entire first floor and that for purposes of calculating Lessee's
power consumption the electrical consumption costs for all other tenants on the
floor will b calculated at $1.60 p.s.f. per year throughout their lease terms
and assuming no coverage by such other tenants on the floor. Lessee shall not
install or use any equipment using electric power other than that described in
this paragraph without the prior written consent of Lessor which consent shall
not be unreasonably withheld or delayed, and, if Lessor gives written consent,
then Lessee shall pay the cost of the power to operate the equipment, as
determined by Lessor, and if the installation of such electrical equipment
requires additional air conditioning capacity above that provided by the
building standard system, then the additional air conditioning installation and
operating costs will be the obligation of Lessee.
6.3 Lessor shall not be held liable for any damage or injury suffered by
Lessee or by any of Lessee's invitees, licensees, agents, servants, employees,
contractors, or subcontractors or any other person or entity engaged, invited,
or allowed to come onto the Premises by Lessee (hereinafter collectively
referred to as "Lessee Parties"), resulting directly, indirectly, proximately,
or remotely from the installation, use, or interruption of any utility service
to the Premises or Building, including, but not limited to, temporary failure to
supply any heating, air conditioning, electrical, water, or sewer services, or
any of them. No temporary failure to provide services shall relieve Lessee from
fulfillment of any covenant of this Lease, including, without limitation, the
covenant to pay any Amount Due in the manner and amounts, and promptly at the
times set forth herein.
6.4 Lessor shall furnish Lessee janitorial service five (5) days per
week, exclusive of holidays, in a manner that Lessor reasonably deems to be
consistent with the first-class standard of the Building.
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7. MAINTENANCE.
7.1 Except for damage arising from the negligence of Lessee or the
Lessee Parties, Lessor shall keep the roof, foundation, exterior walls, common
areas, and all sewer and utility lines of the Building, including all sewer
connections, plumbing, heating appliances, wiring, and glass, in good order and
repair, shall furnish Lessee all Building standard fluorescent bulb replacement
in all areas and all incandescent bulb replacement in the common areas and
service areas within the Building. Notwithstanding anything to the contrary
contained herein and except as otherwise provided in the preceding sentence,
Lessor shall have no obligation to maintain, replace, or repair any other
improvements located within the Premises, the maintenance of which is and shall
be the responsibility of Lessee.
7.2 Lessor shall have no obligation to make any repairs unless and until
Lessee notifies Lessor in writing of the necessity thereof, in which event
Lessor shall have reasonable time in which to make such repairs; however, Lessee
may notify Lessor verbally of any minor, routine or day-to-day repairs which
need to be made.
7.3 Subject to Lessor's obligation to provide janitorial services,
Lessee shall keep the Premises free from all litter, dirt, debris, and
obstructions and in a clean and sanitary condition. Except as otherwise provided
in the first sentence of paragraph 7.1 hereof, Lessee shall maintain, replace,
and repair all improvements located within the Premises, including, but not
limited to, finishes, wall coverings, carpets, floor coverings, utility lines,
sewer connections, plumbing, wiring and glass, which are or were installed for
Lessee. At the expiration or other termination of this Lease, Lessee shall
surrender the Premises (and keys thereto) in as good condition as when received,
loss by fire or other casualty not the result of any act or omission by Lessee
or ordinary wear and tear excepted only.
8. FORCE MAJEURE. In the event that either party hereto shall be delayed or
hindered in or prevented from the performance of any act required hereunder by
reason of strikes, lockouts, labor troubles, inability to procure materials,
failure of power, restrictive government laws or regulations, riots,
insurrection, war, or other reason of a like nature other than finance not the
fault of the party delayed in performing work or doing acts required under the
terms of this Lease, then performance of such act shall be excused for the
period of the delay and the period for the performance of any such act shall be
extended for a period equivalent to the period of the delay. The provisions of
this Section 8 shall not cancel, postpone, or delay the due date of any payment
to be made by Lessee hereunder, nor operate to excuse Lessee from prompt payment
of any Amount Due required by the terms of this Lease.
9. PROPERTY AND LIABILITY INSURANCE.
9.1 Throughout the Lease Term, Lessor will insure for full replacement
value, the Building (excluding foundations and excavations), the Building
standard leasehold improvements, and the machinery, boilers, and equipment
contained therein owned by Lessor (excluding any property Lessee is obliged to
insure pursuant to Paragraph 9.3 below) against damage by fire and the perils
insured in the standard extended coverage endorsement. Lessor shall also,
throughout the Lease Term, carry public liability insurance in an amount not
less than $1,000,000 for any one occurrence with respect to the ownership and
operation of the Building.
9.2 Lessee shall comply with all insurance regulations so the lowest
fire, extended coverage, and liability insurance rates available for use of the
Building as normal office space may be obtained by Lessor and will not use or
keep any substance or material in or about the Premises which may vitiate or
endanger the validity of insurance on the Building, increase the hazard or the
risk beyond that for a normal office building, or result in an increase in
premium on the insurance on the Building. If any insurance policy upon the
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Premises or the Building or any part thereof shall be canceled or shall be
threatened by the insurer to be canceled, the coverage thereunder reduced or
threatened to be reduced, or the premium therefor increased or threatened to be
increased in any way by the insurer by reason of the use and occupation of the
Premises by Lessee or by any assignee or subtenant of Lessee and if Lessee fails
to remedy the condition giving rise to the cancellation, reduction, or premium
increase or threat thereof within twenty-four (24) hours after notice thereof by
Lessor, Lessor may, at its option, do any one of the following:
9.2.1 Declare a default by Lessee, and thereupon the provisions of
Section 12 shall apply; or
9.2.2 Enter upon the Premises and remedy the condition giving rise
to the cancellation, reduction, or premium increase or threat thereof, and in
such event, Lessee shall forthwith pay the cost thereof to Lessor as additional
rent; and if Lessee fails to pay such cost, Lessor may declare a default by
Lessee and thereupon the provisions of Section 12 shall apply (Lessor shall not
be liable for any damage or injury caused to any property of Lessee or of others
located on the Premises as a result of the re-entry); or
9.2.3 If the sole action taken by the insurer is to raise the
premium or other monetary cost of the insurance, demand payment from Lessee of
the premium or other cost as additional rent hereunder, and if Lessee fails to
pay the increase to Lessor within ten (10) days of demand by Lessor, Lessor may
declare a default by Lessee and thereupon the provisions of Section 12 shall
apply. Lessee acknowledges that it has no right to receive any proceeds from any
insurance policies carried by Lessor and that such insurance will be for the
sole benefit of Lessor with no coverage for Lessee for any risk insured against.
9.3 Lessee shall, during its occupancy of the Premises and during the
entire Lease Term, at its sole cost and expense, obtain, maintain, and keep in
full force and effect, and with Lessee, Lessor, and Lessor's mortgagees named as
additional insured therein as their respective interests may appear, the
following types and kinds of insurance:
9.3.1 Upon property of every description and kind owned by Lessee
and located in the Building or for which Lessee is legally liable or which was
installed by or on behalf of Lessee, including, without limitation, furniture,
fittings, installations, alterations, additions, partitions, and fixtures
(excluding, however, those improvements, if any, installed by Lessor in
accordance with paragraph 10.1 hereof), against all risk of loss in an amount
not less than one hundred percent (100%) of the full replacement cost thereof;
9.3.2 Public liability insurance in an amount not less than
$1,000,000.00 for any one occurrence or such higher limits as Lessor may
reasonably require from time to time; the insurance shall include coverage
against liability for bodily injuries or property damage arising out of the use
by or on behalf of Lessee of owned, non-owned, or hired automobiles and other
vehicles for a limit not less than that specified above; and shall also include
coverage for "Fire Legal" liability with respect to the Premises in an amount
not less than $100,000 or such higher limits as Lessor may reasonably require
from time to time.
9.3.3 Workers' compensation insurance in the amount required by law
to protect Lessee's employees; and
9.3.4 Any other form or forms of insurance that Lessor may
reasonably require from time to time, in form, in amounts, and for insurance
risks against which a prudent tenant would protect itself.
9.4 All insurance policies shall be taken out with companies acceptable
to Lessor licensed and registered to operate in the State of Georgia and in form
reasonably satisfactory to Lessor. The insurance may be by blanket insurance
policy or policies. Lessee shall deliver certificates evidencing the insurance
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policies and any endorsement, rider, or renewal thereof, to Lessor. Certificates
evidencing renewals shall be delivered to Lessor no later than fifteen (15) days
after each renewal, as often as renewal occurs, and in no event less than
fifteen (15) days prior to the date on which the policy would otherwise expire.
All insurance policies shall require the insurer to notify Lessor and Lessor's
mortgagees in writing thirty (30) days prior to any material change,
cancellation, or termination thereof.
9.5 Lessor and Lessee hereby release the other from any and all
liability or responsibility to the other or to anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any other perils insured or insurable (whether or not such
insurance is obtained) in policies of fire and extended coverage insurance
covering such property even if such loss or damage shall have been caused by the
fault or negligence of the other party, or any one for whom such party may be
responsible (other than acts, such as intentional wrongdoing or criminal
conduct, that are not waived in the standard waiver of subrogation provision in
commercial property insurance at the time of the loss or damage).
10. ALTERATIONS AND IMPROVEMENTS.
10.1 Lessor shall improve the Premises in accordance with working
drawings to be approved by Lessee and Lessor prior to commencement of
construction. The Premises will be prepared generally in accordance with the
plans shown on EXHIBIT "C", attached hereto and by this reference made a part
hereof. Notwithstanding the above Lessor shall provide Lessee a tenant
improvement allowance equal to $9.00 per square foot or $123,723. These monies
are to be used toward the improvement of the Premises subject to Lessor's
reasonable approval and the above allowance shall also be applied toward the
costs associated with architectural design, engineering, and construction
supervision (5%) to complete the tenant improvement work. Any cost to improve
the Premises in excess of the allowance provided for herein will be at the
expense of Lessee.
10.2 Lessee shall not make any alterations, additions, or improvements
in or to the Premises, nor install or attach fixtures in or to the Premises,
without the prior written consent of Lessor, which consent Lessor shall not
unreasonably withhold, delay or condition. If Lessor does not respond in writing
to Lessee's request for consent within ten (10) business days of receipt of
Lessee's request therefor, Lessee shall be deemed to have given consent. All
alterations, additions, or improvements made, installed in, or attached to the
Premises by Lessee, upon the consent specified above, shall be made at Lessee's
expense in a good and workmanlike manner, strictly in accordance with the plans
and specifications approved by Lessor, all applicable laws, ordinances,
regulations, and other requirements of any appropriate governmental authority,
and any applicable covenants or other restrictions. Prior to the commencement of
any such work, Lessee shall deliver to Lessor certificates issued by insurance
companies licensed and registered to operate in the State of Georgia evidencing
that workers' compensation insurance and public liability insurance, all in
amounts satisfactory to Lessor, are in force and effect and maintained by all
contractors and subcontractors engaged by Lessee to perform the work.
10.3 Lessee shall keep the Premises free from all liens, preliminary
notices of liens, right to liens, or claims of liens of contractors,
subcontractors, mechanics, or material men for work done or materials furnished
to the Property at the request of Lessee. Whenever and so often as any such lien
shall attach or claims or notices thereof shall be filed against the Property or
any part thereof as a result of work done or materials furnished to the Property
at the request of Lessee, Lessee shall, within ten (10) days after Lessee has
notice of the claim or notice of lien, cause it to be discharged of record,
which discharge may be accomplished by deposit or bonding proceedings. If Lessee
shall fail to cause the lien, or such claim or notice thereof, to be discharged
within the ten-day period, then, in addition to any other right or remedy,
Lessor may, but shall not be obligated to, discharge it either by paying the
amount claimed to be due or by procuring the discharge of the
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lien, or claim or notice thereof, by deposit or bonding proceedings. Any amount
so paid by Lessor and all costs and expenses, including, without limitation,
attorneys' fees, incurred by Lessor in connection therewith, shall constitute
additional rent payable by Lessee under this Lease and shall be paid by Lessee
in full on demand of Lessor together with interest thereon at the rate set forth
in paragraph 2.2 hereof from the date it was paid by Lessor. Lessee shall not
have the authority to subject the interest or estate of Lessor to any liens,
rights to liens, or claims of liens for services, materials, supplies, or
equipment furnished to Lessee, and all persons contracting with Lessee are
hereby charged with notice that they must look to Lessee and to Lessee's
interest only to secure payment.
10.4 All alterations, additions, or improvements, including, but not
limited to, fixtures, partitions, counters, and window and floor coverings,
which may be made or installed by either of the parties hereto upon the
Premises, irrespective of the manner of annexation, and irrespective of which
party may have paid the cost thereof, excepting only movable office furniture
and shop equipment put in at the expenses of Lessee, shall be the property of
Lessor, and shall remain upon and be surrendered with the Premises as a part
thereof at the expiration or other termination of this Lease, without
disturbance, molestation, or injury. Notwithstanding the foregoing, however,
Lessor may elect that any or all installations made or installed by or on behalf
of Lessee be removed at the end of the Lease Term, and, if Lessor so elects, it
shall be Lessee's obligation to restore the Premises to the condition they were
prior to the alterations, additions, or improvements on or before the expiration
or other termination of this Lease; provided, however, that Lessor shall make
such election to require Lessee to remove installations at the time Lessor gives
its consent to allow Lessee to install same. Such removal and restoration shall
be at the sole expense of Lessee. Further, notwithstanding anything contained
herein to the contrary except as otherwise provided in paragraph 9.3.1 hereof,
Lessor shall be under no obligation to insure the alterations, additions, or
improvements or anything in the nature of a leasehold improvement made or
installed by or on behalf of Lessee, the Lessee Parties, or any other person,
and such improvements shall be on the Premises at the risk of Lessee only.
10.5 In the event Lessor makes any capital investment, major structural
repairs or improvements in or to the Premises or Building which are required due
to any willful act or omission of Lessee or any of the Lessee Parties, any and
all cost and expenses incurred by Lessor in making the capital investment, major
structural repairs, or improvements shall constitute additional rent payable by
Lessee under this Lease and shall be paid by Lessee in full on demand of Lessor,
together with interest thereon from the date of the demand at the rate set forth
in paragraph 2.2 hereof.
11. ASSIGNMENT OR SUBLETTING.
11.1 Lessee shall not assign this Lease, or any interest herein, or
sublet or allow any other person, firm, or corporation to use or occupy the
Premises, or any part thereof, without the prior written consent of Lessor,
which consent will not be unreasonably withheld or delayed. If Lessor does not
respond in writing to Lessee's request for consent within ten (10) business days
of receipt of Lessee's request therefor, Lessor shall be deemed to have given
consent. Lessor shall have the right to make such investigations as it deems
reasonable and necessary in determining the acceptability of the proposed
assignee or subtenant. Such investigations may include inquiries into the
financial background, business history, capability of the proposed assignee or
subtenant in its line of business, and the quality of its operations. Under no
circumstances shall Lessor be obligated to consent to the assignment of this
Lease or the subletting of the Premises to any entity whose operations violate
the restrictive covenants described in Section 26 hereof. Lessee shall provide
to Lessor such information as Lessor may reasonably require to enable it to
determine the acceptability of the proposed assignee or subtenant, including
information concerning all of the foregoing matters, and Lessor shall have no
obligation to consent to any assignment or subletting unless it has received
from Lessee (at no cost or expense to Lessor) the most recent audited financial
statements of the proposed assignee or subtenant and such other information as
Lessor reasonably requires. For purposes of this Section 11, an assignment of
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stock or other ownership interest in Lessee shall be deemed an assignment within
the meaning of and be governed by this Paragraph. No assignment or subletting
(with or without the consent of Lessor) shall release Lessee from its
obligations under this Lease nor shall Lessee permit this Lease or any interest
herein or in the tenancy hereby created to become vested in or owned by any
other person, firm, or corporation by operation of law or otherwise. The power
of Lessor to give or withhold its consent to any assignment or subletting shall
not be exhausted by the exercise thereof on one or more occasions, but shall be
a continuing right and power with respect to any type of transfer, assignment or
subletting.
11.2 If Lessee shall assign this Lease or sublet the Premises in any way
not authorized by the terms hereof, the acceptance by Lessor of any Amount Due
from any person claiming as assignee, sublease, or otherwise shall not be
construed as a recognition of or consent to the assignment or subletting or as a
waiver of the right of Lessor thereafter to collect any rent from Lessee, it
being agreed that Lessor may at any time accept any Amount Due under this Lease
from any person offering to pay it without thereby acknowledging the person so
paying as a lessee in place of Lessee herein named, and without releasing Lessee
from the obligations of this Lease, and without recognizing the claims under
which such person offers to pay any Amount Due, but it shall be taken to be a
payment on account by Lessee.
11.3 Notwithstanding the provisions of Paragraph 11 of this Lease,
Lessee shall have the right, without the prior consent of Lessor but subject to
Lessor's rights to notice and prohibitions contained herein, to assign this
Lease or sublet the whole or any part of the Premises to a corporation or entity
which: (1) is Lessee's parent corporation; or (2) is a wholly-owned subsidiary
of Lessee or Lessee's parent corporation; or (3) is a corporation of which
Lessee or Lessee's parent corporation owns in excess fifty percent (50%) of the
outstanding capital stock; or (4) is a result of consolidation or merger with
Lessee and/or Lessee's parent corporation; or (5) is a corporation to which
substantially all of Lessee's assets have been transferred. Any transfer
pursuant to 1, 2, 3, 4 or 5 above, shall be subject to the following conditions:
(a) Lessee shall remain fully liable during the unexpired term of this Lease;
and (b) any such assignment, sublease or transfer shall be subject to all of the
terms, covenants and conditions of this Lease, and such assignee, sublessee or
transferee shall expressly assume the obligations of Lessee under this Lease by
a document reasonably satisfactory to Lessor. Lessee shall have the obligation
to give Lessor prior written notice of its intent of any such arrangement, and
if Lessor reasonably determines that the proposed assignee or sublessee is
engaged in a business which would materially interfere with the operation of the
Property or that permitting the assignment or subletting would cause a violation
by Lessor of its obligations under any lease covering a portion of the property,
Lessor shall have the right to prohibit such arrangement based upon the issue of
the business of the proposed assignee or sublessee or the compatability of the
proposed assignee or sublessee with the businesses in the Building.
12. DEFAULTS.
12.1 In the event that (i) Lessee shall fail to pay the Base Rent or any
other Amount Due for more than ten (10) days after its due date, or (ii) Lessee
shall fail to comply with any of the terms, covenants, conditions, or agreements
herein contained or any of the rules and regulations now or hereafter
established for the government of the Building and such failure to comply
continues for thirty (30) days after Lessor's written notice to Lessee thereof,
or (iii) Lessee shall fail for more than thirty (30) days after written notice
thereof from Lessor to Lessee to comply (or fail to diligently pursue within
thirty (30) days compliance which cannot reasonably be completed with such
thirty (30) day period and within sixty (60) days comply with) with any term,
provision, condition or covenant of any other agreement between Lessor and
Lessee; then Lessor shall have the option, but not the obligation, to do any one
or more of the following in addition to, and not in limitation of, any other
remedy permitted by law, in equity or by this Lease:
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12.1.1 Terminate this Lease, in which event Lessee shall surrender
the Premises to Lessor immediately upon expiration of ten (10) days from the
date of the service upon Lessee of written notice to that effect, without any
further notice or demand. In the event Lessor shall become entitled to the
possession of the Premises by any termination of this Lease herein provided, and
Lessee shall refuse to surrender or deliver up possession of the Premises after
the service of such notice, then Lessor may, without further notice or demand,
enter into and upon the Premises, or any part thereof, and take possession of
and repossess the Premises as Lessor's former estate, and expel, remove, and put
out of possession Lessee and its effects, using such help, assistance and force
in so doing as may be needful and proper, without being liable for prosecution
or damages therefor, and without prejudice to any remedy allowed by law
available in such cases. Lessee shall indemnify Lessor for all loss, cost,
expense, and damage which Lessor may suffer by reason of the termination,
whether through inability to relet the Premises, or through decrease in rent or
otherwise. In the event of such termination, Lessor may, at its option, recover
forthwith as damages a sum of money equal to the total of (a) the cost of
recovering the Premises (including, without limitation, attorneys' fees and cost
of suit), (b) the unpaid rent earned at the time of termination, plus late
charges and interest thereon at the rate specified in paragraph 2.2 hereof, (c)
the present value (discounted at the rate of 8% per annum) of the balance of the
rent for the remainder of the Lease Term less the present value (discounted at
the same rate) of the fair market rental value of the Premises for said period,
and (d) any other sum of money and damages owed by Lessee to Lessor.
12.1.2 Without terminating this Lease, retake possession of the
Premises and rent the Premises, or any part thereof, for such term or terms and
for such rent and upon such conditions as Lessor may, in its sole discretion,
think best, making such changes, improvements, alterations, and repairs to the
Premises as may be required. All rent received by Lessor from any reletting
shall be applied first to the payment of any indebtedness other than rent due
hereunder from Lessee; second, to the payment of any costs and expenses of the
reletting, including but not limited to brokerage fees, attorneys' fees and
costs of such changes, improvements, alterations, and repairs; third, to the
payment of rent due and unpaid hereunder; and the residue, if any, shall be held
by Lessor and applied in payment of future rent or damage as they may become due
and payable hereunder. If the rent received from the reletting during the Lease
Term is at any time insufficient to cover the costs, expenses, and payments
enumerated above, Lessee shall pay any deficiency to Lessor, as often as it
shall arise, on demand.
12.1.3 Correct or cure the default and recover any amount expended
in so doing, together with interest thereon until paid.
12.1.4 Recover any and all costs incurred by Lessor resulting
directly, indirectly, proximately, or remotely from the default, including but
not limited to reasonable attorneys' fees.
12.2 In addition to any other rights which Lessor may have, Lessor, in
person or by agent, may enter upon the Premises and take possession of all or
any part of Lessee's property in the Premises, and may sell all or any part of
such property at a public or private sale, in one or successive sales, with or
without notice, to the highest bidder for cash, and, on behalf of Lessee, sell
and convey all or part of the property to the highest bidder, delivering to the
highest bidder all of Lessee's title and interest in the property sold to him.
The proceeds of the sale of the property shall be applied by Lessor toward the
reasonable costs and expenses of the sale, including, without limitation,
attorneys' fees, and then toward the payment of all sums then due by Lessee to
Lessor under the terms of this Lease. Any excess remaining shall be paid to
Lessee or any other person entitled thereto by law. Such sale shall bar Lessee's
right of redemption.
12.3 In the event of a default or threatened default under this Lease by
Lessee, Lessor shall be entitled to all equitable remedies, including, without
limitation, injunction and specific performance.
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12.4 Pursuit of any of the remedies herein provided shall not preclude
the pursuit of any other remedies herein provided or any other remedies provided
at law or in equity. Failure by Lessor to enforce one or more of the remedies
herein provided shall not be deemed or construed to constitute a waiver of any
default, or any violation or breach of any of the terms, provisions, or
covenants herein contained.
13. BANKRUPTCY. The filing or preparation for filing by or against Lessee of
any petition in bankruptcy, insolvency, or for reorganization under the Federal
Bankruptcy Code, any other federal or state law now or hereafter relating to
insolvency, bankruptcy, or debtor relief, or an adjudication that Lessee is
insolvent, bankrupt, or an issuance of an order for relief with respect to
Lessee under the Federal Bankruptcy Code, any other federal or state law now or
hereafter relating to insolvency, bankruptcy, or debtor relief, or the execution
by Lessee of a voluntary assignment for the benefit of, or a transfer in fraud
of, its general creditors, or the failure of Lessee to pay its debts as they
mature, or the levying on under execution of the interest of Lessee under this
Lease, or the filing or preparation for filing by Lessee of any petition for a
reorganization under the Federal Bankruptcy Code, or for the appointment of a
receiver or trustee for a substantial part of Lessee's assets or to take charge
of Lessee's business, or of any other petition or application seeking relief
under any other federal or state laws now or hereafter relating to insolvency,
bankruptcy, or debtor relief, or the appointment of a receiver or trustee for a
substantial part of Lessee's assets or to take charge of Lessee's business,
shall automatically constitute a default in this Lease by Lessee for which
Lessor may, at any time or times thereafter, at its option, exercise any of the
remedies and options provided to Lessor in Section 12 hereof; provided, however,
that if such petition be filed by a third party against Lessee, and Lessee
desires in good faith to defend against the petition and is not in any way in
default of any obligation hereunder at the time of filing the petition, and
Lessee within ninety (90) days thereafter procures a final adjudication that it
is solvent and a judgment dismissing the petition, then this Lease shall be
fully reinstated as though the petition had never been filed. In the event
Lessor elects to terminate this Lease as provided for in this Section, Lessee
shall pay forthwith to Lessor as liquidated damages, the difference between the
unpaid rent reserved in this Lease at the time of such termination and the then
reasonable rental value of the Premises for the balance of the Lease Term, and
Lessee acknowledges that said sum is reasonable and shall not be construed as a
penalty.
14. DAMAGE AND CONDEMNATION.
14.1 In the event during the Lease Term the Premises are damaged by fire
or other casualty, but not to such an extent that repairs and rebuilding cannot
reasonably be completed within one hundred twenty (120) days of the date of the
event causing the damage, Lessor may, at Lessor's option, repair and rebuild the
Premises. If Lessor elects to repair and rebuild the Premises, this Lease shall
remain in full force and effect, but Lessor may require Lessee temporarily to
vacate the Premises while they are being repaired and, subject to the provisions
of this Paragraph 14.1, rent shall xxxxx during this period to the extent that
the Premises are untenantable; provided, however, that Lessor shall not be
liable to Lessee for any damage or expense which temporarily vacating the
Premises may cause Lessee. If the Premises are not repaired, rebuilt, or
otherwise made suitable for occupancy by Lessee within the aforesaid one hundred
twenty (120) day period, Lessee shall have the right, by written notice to
Lessor, to terminate this Lease, in which event rent shall be abated for the
unexpired Lease Term, effective as of the date of the written notification, but
the other terms and conditions of this Lease shall continue and remain in full
force and effect until Lessee shall have vacated the Premises, removed all
Lessee's personal property therefrom and delivered peaceable possession thereof
to Lessor. If Lessor elects not to repair and rebuild the Premises or if the
Building or any part thereof be so damaged that repairs and rebuilding cannot
reasonably be completed within one hundred twenty (120) days of the date of the
event causing the damage, Lessor may by written notice to Lessee terminate this
Lease in which event rent shall be abated for the unexpired Lease Term,
effective as of the date of the written notification, but the other terms and
conditions of this Lease shall continue and remain in full force and effect
until Lessee shall have vacated the Premises, removed all Lessee's personal
property therefrom and delivered peaceable possession thereof to Lessor. Failure
by Lessee to comply with any provision of this Paragraph 14.1 shall
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subject Lessee to such costs, expenses, damages, and losses as Lessor may incur
by reason of Lessee's breach hereof. Notwithstanding any provision of this Lease
to the contrary, if the Premises, the Building, or any part thereof are damaged
by fire or other casualty caused by or materially contributed to by the
negligence or misconduct of Lessee or any of the Lessee Parties, Lessee shall be
fully responsible, to the extent not covered by insurance, for repairing,
restoring, or paying for the damage as Lessor shall direct and this Lease shall
remain in full force and effect without reduction or abatement of rent.
14.2 In the event the Building shall be taken, in whole or in part, by
condemnation or the exercise of the right of eminent domain, or if in lieu of
any formal condemnation proceedings or actions, if any, Lessor shall sell and
convey the Premises, or any portion thereof, to the governmental or other public
authority, agency, body, or public utility, seeking to take the Premises, the
Property or any portion thereof, then Lessor, at its option, may terminate this
Lease upon ten (10) days' prior written notice to Lessee and prepaid rent shall
be proportionately refunded from the date of possession by the condemning
authority. All damages awarded for the taking, or paid as the purchase price for
the sale and conveyance in lieu of formal condemnation proceedings, whether for
the fee or the leasehold interest, shall belong to and be the property of
Lessor; provided, however, Lessee shall have the sole right to reclaim and
recover from the condemning authority, but not from Lessor, such compensation as
may be separately awarded or recoverable by Lessee in Lessee's own right on
account of any and all costs or loss (including loss of business) to which
Lessee might be put in removing Lessee's merchandise, furniture, fixtures,
leasehold improvements, and equipment to a new location. Lessee shall execute
and deliver any instruments, at the expense of Lessor, that Lessor reasonably
may deem necessary to expedite any condemnation proceedings, to effectuate a
proper transfer of title to such governmental or other public authority, agency,
body or public utility seeking to take or acquire the lands and Premises, or any
portion thereof. Lessee shall vacate the Premises, remove all Lessee's personal
property therefrom and deliver up peaceable possession thereof to Lessor or to
such other party designated by Lessor in the aforementioned notice. Failure by
Lessee to comply with any provisions of this Paragraph 14.2 shall subject Lessee
to such costs, expenses, damages, and losses as Lessor reasonably may incur by
reason of Lessee's breach hereof. If Lessor chooses not to terminate this Lease,
then to the extent and availability of condemnation proceeds received by Lessor
and subject to the rights of any mortgagee thereto, Lessor shall, at the sole
cost and expense of Lessor and with due diligence and in a good and workmanlike
manner, restore and reconstruct the Premises within one hundred twenty (120)
days after the date of the physical taking, and such restoration and
reconstruction shall make the Premises reasonably tenantable and suitable for
the general use being made by Lessee prior to the taking and shall restore the
Premises to its condition immediately prior to the taking, reasonable wear and
tear expected; provided, however, that Lessor shall have no obligation to
restore and reconstruct Lessee's leasehold improvements unless and to the extent
that Lessor receives an award of condemnation proceeds specifically designated
as compensation for such improvements. Notwithstanding the foregoing, if Lessor
has not completed the restoration and reconstruction within one hundred twenty
(120) days after the date of physical taking, Lessee, in addition to any other
rights and remedies Lessee may have, shall have the right to cancel this Lease.
If this Lease continues in effect after the physical taking, the rent payable
hereunder shall be equitably adjusted in proportion to the percentage of the
Premises taken or rendered unusable as a result of such taking, both during the
period of restoration and reconstruction and during the unexpired portion of the
Lease Term.
14.3 In the event Lessor, during the Lease Term, shall be required by any
governmental authority or the order or decree of any court, to repair, alter,
remove, reconstruct, or improve (hereinafter collectively called "Repairs") any
part of the Premises, then the Repairs may be made by and at the expense of
Lessor and shall not in any way affect the obligations or covenants of Lessee
herein contained, and Lessee hereby waives all claims for damages or abatement
of rent because of the Repairs. If the Repairs shall render the Premises
untenantable and if the Repairs are not completed within one hundred twenty
(120) days after the date of the notice, requirement, order, or decree, either
party hereto upon written notice to the other party given not later than one
hundred thirty (130) days after the date of the notice, requirement, order, or
decree, may
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terminate this Lease, in which case rent shall be apportioned and paid to the
date the Premises were rendered untenantable; provided however that where the
requirement by a governmental authority having jurisdiction to repair, alter,
remove, reconstruct, or improve any part of the Premises arises out of any act
or omission by Lessee, then the Repairs shall be effected promptly at the sole
cost and expense of Lessee and there shall not, in any event, be any abatement
of rent nor any right in Lessee to terminate this Lease whether or not the
completion of the Repairs takes more than one hundred twenty (120) days.
15. TAXES. Lessor shall pay all taxes, assessments, and other governmental
charges, general or special, ordinary or extraordinary, foreseen or unforeseen,
including any installments thereof, levied, assessed, or otherwise imposed by
any lawful authority or payable with respect to the Property or the Building.
16. LIABILITY OF LESSOR.
16.1 Subject to paragraph 9.5 hereof, Lessee shall indemnify, defend,
and hold harmless Lessor, at Lessee's expense, against (a) any default by Lessee
or any permitted assignee or subtenant hereunder; (b) any act or negligence of
Lessee, Lessee's licensees, agents, servants, employees, contractors or
subcontractors; (c) any act or negligence of the Lessee's invitees or any other
person or entity invited or allowed to come onto the Premises by Lessee,
occurring within the Premises; and (d) all claims for damages to persons or
property by reason of Lessee's use or occupancy of the Premises. Lessee shall
not be liable to Lessor, or Lessor's agents, servants, employees, contractors,
customers or invitees for any damage to person or property caused by any act,
omission or neglect of Lessor, its agents, servants or employees. Moreover,
Lessor shall not be liable for any damage, injury, destruction, or theft to or
of the Premises, the personal property of Lessee or any of the Lessee Parties,
Lessee, or any of the Lessee Parties arising from any use or condition of the
Premises, or any sidewalks, entrance ways, or parking areas serving the
Premises, or the act or neglect of co-tenants or any other person, or the
malfunction of any equipment or apparatus serving the Premises, or any loss
thereof by mysterious disappearance or otherwise, except for such resulting from
the negligence or willful act of Lessor. Any and all claims against Lessor for
any damage referred to, but not excepted, in this Section 16 are hereby waived
and released by Lessee.
16.2 Lessee expressly agrees to look solely to Lessor's interest in the
Property for the recovery of any judgment against Lessor, it being agreed that
Lessor (and its partners and shareholders) shall never be personally liable for
any such judgment. The provision contained in the foregoing sentence is not
intended to, and shall not, limit any right that Lessee might otherwise have to
obtain injunctive relief against Lessor or Lessor's successors-in-interest.
17. RIGHT OF ENTRY.
17.1 Lessor reserves the right, for itself, its mortgagees, or their
respective agents and duly authorized representatives, following reasonable
notice to Lessee except in the case of emergency in which case no notice should
be required, to enter and be upon the Premises at any time and from time to time
to inspect the Premises and to repair, maintain, alter, improve, and remodel,
but Lessor shall not materially interfere with Lessee's normal operation except
in case of an emergency. Lessee shall not be entitled to any compensation,
damages, or abatement or reduction in rent on account of any such repairs,
maintenance, alterations, improvements or remodeling. Except as otherwise
provided in this Lease, nothing contained in this Paragraph 17.1 shall imply any
duty on the part of Lessor to repair, maintain, alter, improve, or remodel.
17.2 After notice to Lessee, Lessee shall permit Lessor or Lessor's
agents at any reasonable hour of the day to enter into or upon and go through
and view the Premises and to exhibit the Premises to prospective purchasers or
tenants.
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18. BUILDING RULES AND REGULATIONS. Lessor reserves the right to establish
commercially reasonable rules and regulations pertaining to the use and
occupancy of the Building, which rules and regulations may be changed by Lessor
from time to time. Lessee shall comply with any rules and regulations
established by Lessor pursuant to this Section 18. Building Rules and
Regulations are stated on EXHIBIT "F", attached hereto and by this reference
made a part hereof.
19. PROPERTY LEFT ON THE PREMISES. Upon the expiration of this Lease, or if
the Premises should be abandoned by Lessee, or if this Lease should terminate
for any cause, or if Lessee should be dispossessed after default, if at the time
of any such expiration, abandonment, termination or dispossession, Lessee or its
assignees, subtenants, agents, servants, employees, contractors, or any other
person controlled by Lessee or claiming under Lessee should leave any property
of any kind or character in or upon the Premises, if such property remains in
the Premises for ten (10) days after Lessor has given notice to Lessee pursuant
to Paragraph 34 herein, such property shall be the property of Lessor and the
fact of such leaving of property in or upon the Premises shall be conclusive
evidence of the intent by Lessee or such person to abandon such property so left
in or upon the Premises, and such leaving shall constitute abandonment of the
property. It is understood and acknowledged by the parties hereto that none of
Lessor's servants, agents, or employees, have or shall have the actual or
apparent authority to waive any portion of this Section 19, and neither Lessee
nor any other person designated above shall have any right to leave any such
property upon the Premises beyond the time set forth herein without the written
consent of Lessor. Lessor, its agents or attorneys, shall have the right and
authority, if such property remains in the Premises for ten (10) days after
Lessor has given notice to Lessee pursuant to Paragraph 34 herein, to remove and
destroy, store, sell or otherwise dispose of, such property, or any part
thereof, without being in any way liable to Lessee or anyone else therefor.
Lessee shall be liable to Lessor for all reasonable and necessary expenses
incurred in such removal and destruction, storage, sale or other disposition of
such property. The said property removed or the proceeds from the sale or other
disposition thereof shall belong to the Lessor as compensation for the removal
and disposition of said property.
20. OTHER INTERESTS.
20.1 This Lease and Lessee's interest hereunder shall at all times be
subject and subordinate to the lien and security title of any deeds to secure
debt, deeds of trust, mortgages, or other interests heretofore or hereafter
granted by Lessor or which otherwise encumber or affect the Premises and to any
and all advances to be made thereunder and to all renewals, modifications,
consolidations, replacements, substitutions, and extensions thereof (all of
which are hereinafter called the "Mortgage"). Except as expressly set forth in
Section 20.3 to the contrary, this clause shall be self-operative and no further
instrument of subordination need be required by any holder of any Mortgage. In
confirmation of such subordination, however, Lessee shall, within ten (10)
business days after Lessor's request, promptly execute, acknowledge, and deliver
any instrument which may be required to evidence subordination to any Mortgage
and, to the holder thereof, and, in the event of a failure so to do, Lessor may,
in addition to any other remedies for breach of covenant hereunder, execute,
acknowledge, and deliver the instrument as the agent or attorney-in-fact of
Lessee, and Lessee hereby irrevocably constitutes Lessor its attorney-in-fact
for such purpose, Lessee acknowledging that the appointment is coupled with an
interest and is irrevocable. Lessee hereby waives and releases any claim it
might have against Lessor or any other party for any actions lawfully taken by
the holder of any Mortgage. At the option of any holder of a Mortgage or any
purchaser at a purchase sale of any Mortgage, Lessee shall attorn to and
recognize such holder or purchaser as the Lessor under this Lease for the
remainder of the term hereof, provided that such holder or purchaser recognizes
Lessee as the Lessee of the Premises for the remainder of the term hereof in
accordance with the provisions of this Lease; provided however, that such holder
or purchaser shall not be subject to any offsets or defenses which Lessee might
have against any prior Lessor and shall not be liable for any act or omission of
any prior Lessor. Lessee shall, at the option of such holder or purchaser and
within ten (10) business days after request is made therefor, execute,
acknowledge and deliver any instrument which reasonably may be required to
evidence such attornment on the foregoing terms.
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20.2 In the event of a sale or conveyance by Lessor of Lessor's
interest in the Premises other than a transfer for security purposes only,
Lessor shall be relieved, from and after the date of transfer, of all
obligations and liabilities accruing thereafter on the part of Lessor, provided
that any funds in the hands of Lessor at the time of transfer in which Lessee
has an interest shall be delivered to the successor of Lessor. This Lease shall
not be affected by any such sale and Lessee shall attorn to the purchaser or
assignee.
20.3 Notwithstanding paragraph 20.1, with respect to Mortgages entered
into by Lessor after the execution of this Lease, Lessee's subordination of this
Lease shall be subject to receiving a commercially reasonable non-disturbance
agreement (a "NON-DISTURBANCE AGREEMENT") from the holder of such Mortgage,
which Non-Disturbance Agreement provides that Lessee's possession of the
Premises, and this Lease, including any options to extend the term hereof, will
not be disturbed so long as Lessee is not in breach hereof and attorns to the
record owner of the Premises, at its option as provided in paragraph 20.1.
Further, within sixty (60) days after the execution of this Lease, Lessor shall
use its commercially reasonable efforts to obtain a Non-Disturbance Agreement
from the holder of any pre-existing Mortgage which is secured by the Premises.
In the event that Lessor is unable to provide the Non-Disturbance Agreement
within said sixty (60) days, then Lessee may, at Lessee's option, directly
contact Lessor's lender and attempt to negotiate for the execution and delivery
of a Non-Disturbance Agreement.
21. INTENTIONALLY OMITTED.
22. DELAYED POSSESSION. If Lessor shall fail to deliver to Lessee actual
possession of the Premises by August 1, 1998, rent shall xxxxx until possession
is given, but Lessor shall not be liable to Lessee for such failure, and the
Commencement Date shall become the date on which possession is given.
23. HOLDING OVER. There shall be no renewal, extension, or reinstatement of
this Lease by operation of law. In the event of holding over by Lessee after the
expiration or sooner termination of this Lease, with Lessor's acquiescence and
without any express agreement of the parties, Lessee shall be a tenant at
sufferance and all of the terms, covenants, and conditions of this Lease shall
be applicable during that period, except that Lessee shall pay Lessor as Base
Rent for the period of the hold over an amount equal to one and one-half times
the Base Rent which would have been payable by Lessee under Paragraph 2.1
hereof, as adjusted in accordance with paragraph 3.1 hereof, had the hold-over
period been part of the original Lease Term, together with all additional rent
due hereunder and together with any other Amount Due under this Lease. The rent
payable by Lessee during the hold-over period shall be payable to Lessor on
demand. If Lessee holds over as a tenant at sufferance, Lessee shall vacate and
deliver the Premises to Lessor upon demand. In the event Lessee fails to
surrender the Premises to Lessor upon expiration or other termination of this
Lease or of such tenancy at sufferance, then Lessee shall indemnify Lessor
against any and all loss or liability resulting from any delay of Lessee in
surrendering the Premises, including, but not limited to, any amounts required
to be paid to third parties who were to have occupied the Premises and any
reasonable attorneys' fees related thereto.
24. NO WAIVER. Lessee understands and acknowledges that no assent, express
or implied, by Lessor to any breach of any one or more of the terms, covenants
or conditions hereof shall be deemed or taken to be a waiver of any succeeding
or other breach, whether of the same or any other term, covenant or condition
hereof.
25. BINDING EFFECT. All terms and provisions of this Lease shall be binding
upon and apply to the successors, permitted assigns, and legal representatives
of Lessor and Lessee or any person claiming by, through, or under either of them
or their agents or attorneys, subject always, as to Lessee, to the restrictions
contained in Section 11 hereof.
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26. COMPLIANCE WITH PROTECTIVE COVENANTS. In addition to and without in any
way limiting any of the other provisions of this Lease, Lessee shall comply with
any protective covenants now or hereafter of record against the Building or the
Property and with any changes to the covenants duly adopted. It is expressly
acknowledged that all uses of the Building and Premises are subject to the
covenants, conditions and restrictions of Technology Park/Atlanta, Inc. filed at
Deed Book 000, Xxxx 000, Xxxxxxxx Xxxxxx, Xxxxxxx, records, as amended and
extended.
27. SIGNS. Lessee shall not install, paint, display, inscribe, place, or
affix any sign, picture, advertisement, notice, lettering, or direction
(hereinafter collectively called "Signs") on the exterior of the Premises, the
common areas of the Building, the interior surface of glass and any other
location which could be visible from outside of the Premises without first
securing written consent from Lessor therefor, which consent shall not be
unreasonably withheld as to Signs in the Premises visible from outside or on its
exterior. Any Sign permitted by Lessor shall at all times conform with all
municipal ordinances or other laws, regulations, deed restrictions, and
protective covenants applicable thereto. Lessee shall remove all Signs at the
expiration or other termination of this Lease, at Lessee's sole risk and
expense, and shall in a good and workmanlike manner properly repair any damage
caused by the installation, existence, or removal of Lessee's Signs.
28. DIRECTORY BOARD. Lessee shall be entitled to have its name shown upon
the Directory Board of the Building. Lessor shall designate the style of the
Directory Board as well as the amount of space to be allocated to Lessee, which
Board shall be located in an area designated by Lessor in the main lobby of the
Building. As well Lessee may have its name placed upon the monument sign subject
to TPA's Design Control Committee, and that of Lessor.
29. ESTOPPEL CERTIFICATE. Lessee shall, at any time and from time to time,
upon not less than ten (10) business days' prior written notice from Lessor,
execute, acknowledge, and deliver to Lessor a statement in writing certifying
that this Lease is unmodified and in full force and effect (or if modified,
stating the nature of the modification and certifying that this Lease, as so
modified, is in full force and effect) and the dates to which the rent and other
charges are paid, and acknowledging that Lessee is paying rent on a current
basis with no offsets or claims, and that there are not, to Lessee's knowledge,
any uncured defaults on the part of Lessor hereunder (or specifying the offsets,
claims, or defaults, if any are claimed), and such other information (including,
but not limited to most recent, financial statements) reasonably required by
Lessor. It is expressly understood and acknowledged that any such statement may
be relied upon by any prospective purchaser or encumbrancer of all or any
portion of the Property or by any other person to whom it is delivered.
30. SEVERABILITY. The terms, conditions, covenants, and provisions of this
Lease shall be deemed to be severable. If any clause or provision herein
contained shall be adjudged to be invalid or unenforceable by a court of
competent jurisdiction or by operation of any applicable law, it shall not
affect the validity of any other clause or provision herein, but the other
clauses or provisions shall remain in full force and effect.
31. ENTIRE AGREEMENT. Lessee acknowledges that there are no covenants,
representations, warranties, or conditions, express or implied, collateral or
otherwise, forming part of or in any way affecting or relating to this Lease
save as expressly set out in this Lease and that this Lease together with the
Exhibits attached hereto constitutes the entire agreement between the parties
hereto and may not be modified except as herein explicitly provided or except by
subsequent agreement in writing of equal formality hereto executed by Lessor and
Lessee.
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32. CUMULATIVE REMEDIES. In the event of any default, breach, or threatened
breach by Lessee of any of the covenants or provisions hereto, Lessor shall, in
addition to all other remedies as provided by this Lease, have the right of
injunction and/or damages and the right to invoke any remedy allowed at law or
in equity, and may have any one or more of the remedies contemporaneously. The
various rights, remedies, powers, options, and elections of Lessor reserved,
expressed, or contained in this Lease are cumulative and no one of them shall be
deemed to be exclusive of the others, or of such other rights, remedies, powers,
options, or elections as are now, or may hereafter, be conferred upon Lessor by
law.
33. PARKING AREAS AND COMMON AREA CONTROL.
33.1 Lessee acknowledges and agrees that the common areas of the
Building including, without limiting the generality of the foregoing, lawns,
gardens, parking areas, sidewalks, driveways, foyers, hallways, washrooms, and
stairwells not within the Premises shall at all times be subject to the
exclusive control and management of Lessor. Lessor shall provide Lessee, at no
charge to Lessee, parking at a ratio of four (4) parking spaces per 1,000
rentable square feet (Lessee's "Proportionate Share") on a non-reserved, non-
exclusive basis for the Lease Term including any extension thereof. Lessor shall
have the right to change the area, level, location, and arrangement of all
common areas so long as in so doing Lessor does not materially and adversely
affect ingress to and egress from the Building or the Premises.
33.2 Lessee and the Lessee Parties shall not use more than Lessee's
proportionate share of the parking spaces in the parking areas made available to
the Building by Lessor. Lessee covenants and agrees to fully cooperate with
Lessor in the enforcement of any program of rules and regulations designed for
the orderly control and operation of parking areas.
34. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given when delivered in person three
(3) days after being deposited in the United States mail, return receipt
requested or the next business day after being placed in a nationally recognized
overnight courier (i.e., Federal Express) for next business day morning
delivery, addressed to the parties at the respective addresses set out below:
If to Lessee: nFRONT, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: President
If to Lessor: Xxxxxxxxx Atlanta, L.P.
c/o Xxxxxxx Xxxxx Hampton
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
With copy to: Xxxxxxxxx Atlanta, L.P.
c/o Technology Park/Atlanta, Inc.
Suite 150
11555 Xxxxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
Attention: President
or to such other addresses as the parties may direct from time to time by thirty
(30) days' written notice. However, the time period in which a response to any
notice, demand, or request must be given, if any, shall
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commence to run from the date of receipt of the notice, demand, or request by
the addressee thereof. Rejection or other refusal to accept or the inability to
deliver because of changed address of which no notice was given shall be deemed
to be receipt of the notice, demand, or request sent.
35. RECORDING. Neither this Lease nor any portion hereof shall be recorded
unless both parties hereto agree to the recording.
36. ATTORNEYS' FEES. Lessee agrees to pay Lessor's reasonable attorneys'
fees, collection costs and other costs and expenses which Lessor incurs in
enforcing any of the obligations of Lessee under this Lease, if Lessor prevails
in such proceedings.
37. HOMESTEAD. Lessee waives all homestead rights and exemptions which it
may have under any law as against any obligations owing under this Lease. Lessee
hereby assigns to Lessor its homestead right and exemption.
38. TIME OF ESSENCE. Time is of the essence of this Lease.
39. NO ESTATE IN LAND. This Lease shall create the relationship of landlord
and tenant between Lessor and Lessee, and nothing contained herein shall be
deemed or construed by the parties hereto, or by any third party, as creating
the relationship of principal and agent, or of partnership, or of joint venture,
or of any relationship other than landlord and tenant, between the parties
hereto. No estate shall pass out of Lessor and Lessee has only a usufruct not
subject to levy and sale.
40. ACCORD AND SATISFACTION. No payment by Lessee or receipt by Lessor of a
lesser amount than the Base Rent, additional rent, or any other Amount Due
herein stipulated shall be deemed to be other than on account of the earliest of
such amount then due, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Lessor may accept the check or payment without prejudice to
Lessor's right to recover the balance of the rent or pursue any other remedy
provided in this Lease.
41. BROKERS' FEES. With the exception of Technology Park/Atlanta, Inc.,
broker representing Lessor and Xxxxxxx Xxxxxxx Company, broker representing
Lessee; Lessor and Lessee warrant and represent, each to the other, that it has
had no dealings with any broker or agent in connection with this Lease, and
Lessor and Lessee hereby indemnify each other against, and agree to hold each
other harmless from, any liability or claim (and all expenses, including
attorneys' fees, incurred in defending any such claim or in enforcing this
indemnity) for a real estate brokerage commission or similar fee or compensation
arising out of or in any way connected with any claimed dealings with the
indemnitor and relating to this Lease or the negotiation thereof. Lessor
acknowledges that Lessor shall be responsible for any and all commissions
payable to Technology Park/Atlanta, Inc. and Xxxxxxx Xxxxxxx & Company, which
will be paid commissions pursuant to separate agreements in accordance with the
terms thereof, on account of the transaction contemplated by this Lease.
42. MISCELLANEOUS.
42.1 Words of any gender used in this Lease shall be held and construed
to include any other gender, and words in the singular number shall be held to
include the plural unless the context otherwise requires.
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42.2 The captions are inserted in this Lease for convenience only, and
in no way define, limit, or describe the scope or intent of this Lease, or of
any provision hereof, nor in any way affect the interpretation of this Lease.
42.3 This Lease is made and delivered in the State of Georgia and shall
be governed by and construed in accordance with the laws of the State of
Georgia.
For additional terms and stipulations of this Lease, if any, see
EXHIBIT "D", attached hereto and by this reference incorporated herein.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands
and seals the day and year first above written.
LESSOR:
XXXXXXXXX ATLANTA, L.P.
a Georgia limited partnership
By: S. A. Management, Inc.
a Georgia corporation, sole general partner
By: /s/ Xxxxxx X. Day
-------------------------
Name: Xxxxxx X. Day
Title: VP
[Corporate Seal]
LESSEE:
NFront, Inc.
a Georgia corporation
By: /s/ Xxxxx Xxxxxxx
-------------------------
Name: Xxxxx Xxxxxxx
Title: CEO
[Corporate Seal]
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