EXHIBIT 10.46
SUBLEASE
THIS SUBLEASE (THE "SUBLEASE") is made as of the 1st day of March, 1997, by
and between AFC Enterprises, Inc., a Minnesota corporation ("Sublessee"), and
Foresight Software, Inc. a Delaware corporation ("Sublessor");
WITNESSETH:
WHEREAS, Sublessor is the Tenant under that certain Lease Agreement (the
"Lease") dated September 30, 1996, having Concourse VI Associates ("Lessor"), as
Lessor, for lease of office space at Corporate Center VI, Six Concourse Parkway,
Xxxxxx County, Georgia, such office space being on the twenty-second floor and
comprising 26,591 square feet, a copy of which Lease is attached hereto as
EXHIBIT "A", and made a part hereof by reference; and,
WHEREAS, Sublessor wishes to lease to Sublessee, and Sublessee wishes to
lease from Sublessor, a portion of the office space leased under the Lease;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties agree as follows:
1. Sublessor leases to Sublessee, and Sublessee leases from Sublessor, on
the terms and conditions specified herein, a portion of the office space leased
under the Lease, such subleased space being about 14,372 rentable square feet
("RSF"), as more particularly described in EXHIBIT "B", attached hereto and
made a part hereof by reference (the "Subleased Space"). Sublessor hereby
represents and warrants to the Sublessee that the copy of the Lease attached as
Exhibit "A" is true, correct and complete, that the Lease is in full force and
effect and is not in default (nor has any event occurred that with the passage
of time, the giving of notice, or both, will constitute a default under the
Lease), that the Sublessor has full power and authority to enter into this
Sublease and, as evidenced by Lessor's execution of this Sublease, received
appropriate consent from the Lessor, and Sublessor hereby covenants and warrants
that so long as the Sublessee does not commit an uncured default hereunder, it
shall have quiet enjoyment and possession of the Subleased Space.
2. The primary term of this Sublease shall be from March 1, 1997, until
February 28, 1999, subject, however, to the provisions hereof. Rent shall be as
follows:
PER RSF PER ANNUM PER MONTH
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3-1-97 through 12-31-97 $ 20.00 $287,440.00 $ 23,953.33
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1-1-98 through 2-28-99 $ 22.00 $316,184.00 $ 26,348.67
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3-1-99 through 12-31-02 $ 22.00 $316,184.00 $ 26,348.67
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Sublessee shall pay rental to Sublessor in advance on the first day of
the month at such address as the Sublessor shall designate from time-to-time, in
accordance with the requirements under the Lease. Sublessee agrees to pay
promptly upon demand a prorated share (54.05%) of any additional rent, tax
payments, or any other sums that may be due from Sublessor to Lessor from
time-to-time under Paragraph 3 of the Lease, while reserving its rights to
dispute operating statements in accordance with Paragraph 3(f) of the Lease.
Sublessor agrees to promptly and timely provide to Sublessee copies of all
operating statements, or related notices, provided to it by the Lessor. Prior to
the execution of this Sublease, Sublessor shall provide Sublessee a copy of the
1997 Operating Expense Estimate provided by the Landlord.
Sublessee shall have the option to extend the term of this Sublease for
the balance of the term of the Lease. Sublessee shall give written notice of its
intent to exercise this option not later than 180 days prior to expiration of
the primary term of this Sublease.
3. Sublessee covenants and agrees with Sublessor to comply with any and
all terms and provisions of the Lease. In the event of a default by either party
under this Sublease that also constitutes a default under the Lease, the
Sublessor or the Sublessee, as applicable, shall have all rights available to
them at law or in equity, or as provided under the Lease, with respect to such
default.
4. Sublessor agrees to indemnify, hold harmless and defend the
Sublessee from and against any and all claims, losses or damage, of any kind or
nature whatsoever, arising from Sublessor's default under this Sublease, or
under the Lease, unless such claim, loss or damage arises solely because of the
willful act or gross negligence of the Sublessee. Sublessee agrees to indemnify,
hold harmless and defend the Sublessor from and against any and all claims,
losses or damage, of any kind or nature whatsoever, arising from Sublessee's
default under this Sublease, unless such claim, loss or damage arises solely
because of the willful act or gross negligence of Sublessor.
5. Sublessor agrees not to permit an uncured default under the Lease,
provided such default is not caused by Lessor or by Sublessee; provided,
however, in the event Sublessor defaults under the Lease, and fails to cure same
in a timely manner, Sublessor agrees that Sublessee may, but is not obligated
to, cure any such default under the Lease in order to preserve Sublessee's
rights under this Sublease. Any sums expended by Sublessee to cure Sublessor's
default under the Lease may be collected by all means available to Sublessee, at
law and in equity, or may be offset against any rental or other sums due under
this Sublease. Sublessor agrees to forward to Sublessee any and all notices of
default, or related notices, it receives from the Lessor under the Lease, in a
timely manner.
6. Sublessor hereby represents and warrants to the Sublessee that the
Subleased Space is in normal operating condition, and currently free of defects,
normal wear and tear accepted. AFC agrees to refit the Subleased Space in
accordance with plans and specifications to be submitted to the Sublessor and
the Lessor, such plans to be submitted not later than fifteen (15) days
following the date of this Sublease. The Sublessor and Sublessee agree to
cooperate reasonably in presenting such plans to the Lessor, and in working
toward approval of such plans. In the event the parties and
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the Lessor, acting in good faith, are unable to agree upon such plans within
thirty (30) days following the date of this Sublease, Sublessee, in its sole
discretion, may terminate this Sublease, and shall have no further liability or
obligation under this Sublease. Sublessee shall bear all costs related to
documentation and to all construction and related costs associated with
preparing the Subleased Space pursuant to such plans.
7. Sublessee may assign this Sublease, or sub-sublet any or all of the
Subleased Space, without Sublessor's consent, so long as Sublessee remains
liable under this Sublease.
8. Should Sublessor choose to further sublet or vacate any of the
additional office space demised under the Lease, then it shall give prior,
written notice to Sublessee, and Sublessee shall have fourteen (14) days from
receipt of such notice within which to agree to sublet such space upon terms in
effect under the Sublease at that time. Sublessee's failure to respond within
this fourteen (14) day period shall be deemed a rejection of such additional
space, and Sublessor shall then be free to sublet, vacate, or otherwise to
demise the balance of this office space as it deems fit.
9. No provision hereof may be changed, waived, discharged or terminated
orally, but only by an instrument in writing signed by the party against whom
enforcement of the change, waiver, discharge or termination is sought.
10. Any and all notices, elections, demands, requests and responses
thereto permitted or required to be given under this Sublease (hereinafter
sometimes "Notice") shall be in writing, signed by or on behalf of the party
giving the same, and shall be deemed to have been properly given or served and
shall be effective upon being actually received by the addressee, regardless of
the method of delivery, or upon being deposited in the United States Mail,
postage prepaid, certified mail, return receipt requested, to the other party at
the address of such other party set forth below or at such other address as such
other party may designate by Notice specifically designated as a notice of
change of address and given in accordance herewith; provided, however, that the
time period in which a response to any Notice must be given shall commence on
the date of receipt thereof; and provided further that no Notice specifically
designated as a notice of change of address shall be effective until the date of
receipt thereof. Personal delivery to a party or to any officer, partner, agent
or employee of such party at said address shall constitute receipt. Rejection or
other refusal to claim or accept any Notice or inability to deliver because of
changed address of which no Notice specifically designated as a notice of change
of address has been received shall also constitute receipt. Any such Notice
shall be addressed as follows:
SUBLESSEE: AFC Enterprises, Inc.
Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Assets Management
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With a copy to: AFC Enterprises, Inc.
Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Corporate Counsel -
Real Estate
SUBLESSOR: Foresight Software, Inc.
Xxx Xxxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
11. This Sublease constitutes the sole and entire agreement between or
among the parties with respect to the subject matter hereof. No representation,
warranty, covenant, inducement or obligation not expressly stated in this
Sublease shall be binding upon the parties.
12. Time is of the essence hereunder. This Sublease has been made in,
and shall be governed and construed in accordance with the laws of, the State of
Georgia. This Sublease is a usufruct.
13. The parties acknowledge that it and its legal counsel have
participated in the negotiation and preparation of this Sublease; therefore,
this Sublease shall be construed without regard to any presumption or other rule
requiring construction against the party causing this Sublease to be drafted.
14. This Sublease may be executed in multiple counterparts, each of
which shall be an original and all of which together shall constitute one and
the same original and all of which together shall constitute one and the same
agreement. It shall not be necessary that each party execute each counterpart,
or that any one counterpart be executed by more than one party, so long as each
party executes at least one counterpart.
15. By Approval of this Sublease and the attached floor plan, Lessor
agrees to relieve the Sublessee and Sublessor of their requirements under
Paragraph 1, in the Special Stipulations of the Master Lease, which would
potentially require Tenant to remove any such repair or improvement to the
Premises.
IN WITNESS WHEREOF, the parties have executed this Sublease effective
the day and year first above written.
(Signatures commence on following page)
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AFC ENTERPRISES, INC.
By: /s/
------------------------------
Name:
-------------------------- ----------------------------
Witness Title:
---------------------------
-------------------------- [CORPORATE SEAL]
Notary
FORESIGHT SOFTWARE, INC.
By: /s/
------------------------------
Name:
-------------------------- ----------------------------
Witness Title:
---------------------------
-------------------------- [CORPORATE SEAL]
Notary
CONCOURSE VI ASSOCIATES, a
GEORGIA GENERAL PARTNERSHIP
By: /s/
------------------------------
Name:
-------------------------- ----------------------------
Witness Title:
---------------------------
-------------------------- [Authorized party to bind said entity]
Notary
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ADDENDUM
Lessor hereby consents to this Sublease. By consenting to this Sublease, Lessor
in no way agrees to perform or be obligated to perform any services on behalf of
Sublessee hereunder, but shall continue to provide any such services to the
Subleased Space in accordance with the terms and conditions of the Lease.
Sublessee shall have no rights or claims against Lessor but shall instead look
solely to Sublessor for any such claims. By consenting to this Sublease, Lessor
does not release or relieve Sublessor from any of its obligations under the
Lease, and Sublessor is and shall remain so bound. Notwithstanding the terms of
Paragraph 7 of the Sublease, Lessor does not consent to Sublessee's rights to
subsublet or subassign without Lessor's consent, and Lessor has such a right to
consent to any such subsublet or subassignment.
Consented to by:
LESSOR:
CONCOURSE VI ASSOCIATES, a
Georgia general partnership
By: Xxx Properties, Inc., as
general partner
By: /s/
--------------------------
Its:
--------------------
By: JV Georgia One, Inc., as
general partner
By: /s/
--------------------------
Its:
--------------------
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