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EXHIBIT 10.6
STATE OF GEORGIA
COUNTY OF XXXX
LEASE AGREEMENT
THIS LEASE, made this 27th day of November, 1996, by and between
TRANS-FABU, L.P. (hereinafter called "Lessor") and VANSTAR CORPORATION
(hereinafter called "Lessee").
WITNESSETH:
WHEREAS, Lessor is the owner of Building 200, 0000 Xxxxxxxx Xxxxxxx,
Xxxxxxxxxx, Xxxxxxx 00000 (hereinafter called the "Building", said Building,
the parcel of land upon which it and its amenities is situated and all
improvements and betterments of any nature thereon are hereinafter collectively
called the "Property", and;
WHEREAS, Lessee wishes to lease form Lessor 27,363 rentable square feet of
space known as SUITE 260 of the Building, as outlined on the diagram marked
EXHIBIT A attached hereto and by this reference incorporated herein
(hereinafter called the "Premises")
NOW, THEREFORE, in consideration of the payment and the rent and the
keeping and performance of the covenants and agreements by Lessee as
hereinafter set forth, Lessor does hereby lease to Lessee, the Lessee does
hereby lease from Lessor, the Premises. Lessee hereby accepts the Premises in
their condition existing as of the date hereof.
FOR AND IN CONSIDERATION of the leasing of the Premises as aforesaid, the
parties hereby covenant and agree as follows:
1. TERM. The term (hereinafter called the "Lease Term") of this Lease
shall commence on the later of DECEMBER 1, 1996 or the date which Lessor
completes Lessor's work as identified in Exhibit C Paragraph 2 (hereinafter
called the "Commencement Date") and, unless sooner terminated pursuant to the
provisions hereof, shall expire at midnight on NOVEMBER 30, 1999.
2. RENT.
2.1 Lessee agrees to pay an annual base rental (hereinafter called
"Annual Base Rental") for each year during the Lease Term determined in
accordance with this Paragraph. During the first year of the Lease Term,
Annual Base Rental shall be $342,037.50. The Annual Base Rental for each
subsequent year of the Lease Term shall adjust according to the Rent Schedule
described on EXHIBIT C and by this reference incorporated herein. If the final
period of the Lease Term is not equal to one year, Annual Base Rental for such
partial year shall be prorated based on a 30 day month and a 360 day year.
2.2 Annual Base Rental shall be paid in equal monthly installments
(hereinafter called "Base Rent"), said Base Rent to be paid in advance on the
first day of every calendar month no later than the 5th day of every calendar
month (except that the first month's rent shall be paid at the time this Lease
is executed). For any partial month Base Rent shall be adjusted on the basis
of a 30 day month.
2.3 Upon execution of this Lease by Lessee, Lessee shall pay a deposit in
the amount of $28,503.12 (hereinafter called the "Security Deposit"), which
Security Deposit may be applied by Lessor towards (but not necessarily in
satisfaction of) Lessor's damage or injury by virtue of any default by Lessee
in the performance of Lessee's covenants and obligations under this Lease. If
at the expiration or other termination of this Lease the Security Deposit has
not been previously applied and Lessee is not in default of any of its
covenants, the Security Deposit shall be returned by Lessor without interest.
If Lessee if not in default under the Lease the Security Deposit shall be
refunded on the first anniversary of the Lease.
2.4 Lessee shall pay the rent and all other sums, amounts, liabilities
and obligations which Lessee herein assumes or agrees to pay or is liable for
(whether designated Base Rent, Additional Rent, Common Costs, taxes, insurance,
costs, expenses, damages, losses, or otherwise) (all of which are hereinafter
called "Amount Due") promptly at the time and in the manner herein specified
without deduction, setoff, abatement, counterclaim or defense, and regardless
of whether or not the Lease Term has previously ended. If any Amount Due is
not received
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by Lessor within 3 days of the due date Lessee shall pay Lessor interest on such
Amount Due from the date on which the same was due until the date the same is
actually paid at a rate per annum equal to the greater of (i) the prime rate of
interest announced by Wachovia Bank of Georgia, Atlanta, Georgia (or successor
thereto) from time to time plus five percent (5%) or (ii) the maximum rate
permitted by applicable usury law, provided however, Lessee shall pay a minimum
late fee of $250.00. ANY AMOUNT DUE SHALL BE PAID AT SUCH PLACE OR PLACES AS
LESSOR MAY FROM TIME TO TIME DESIGNATE IN WRITING, BUT SHALL INITIALLY BE MADE
PAYABLE AND MAILED TO:
TRANS-FABU, L.P.
C/O THE XXXXXXX COMPANIES
0000 XXXXXXXXXX XXXXXXX, XXXXXXXX 000X
XXXXXXX, XX 00000
ATTN: XXXXX XXXXXXX
3. TAXES AND INSURANCE STOPS; COMMON COST RECOVERY.
3.1 For every whole or partial calendar year during the Lease
Term, Lessee agrees to pay as Additional Rent the excess of Actual Taxes over
the Tax Base. "Actual Taxes" means the result obtained by (i) dividing Taxes by
the Area of the Property and (ii) multiplying the result by the Area of the
Premises. "Area of the Premises" means 27,363 square feet, plus any subsequent
additions thereto. "Area of the Property" shall mean the area of all space in
all the buildings on the Property (including expansions thereof, if any), which
is presently 102,670 square feet. "Taxes" for any calendar year shall mean (i)
personal property taxes imposed upon the Property or any part thereof, (ii) real
estate taxes, assessments, sanitary taxes, and any other governmental charge,
general or special, ordinary or extraordinary, now or hereafter levied or
assessed against or allocable to the Property or any portion thereof, or Lessor,
as owner of the Property, and (iii) fees and charges of consultants incurred by
Lessor with respect to items (i) and (ii) of this sentence. "Tax Base" means the
product obtained by multiplying the Area of the Premises by Taxes for the 1997
calendar year divided by "Area of the Property."
3.2 For every whole or partial calendar year during the Lease
Term, Lessee agrees to pay as Additional Rent the excess of Actual Insurance
Premiums over the Insurance Bow. "Actual Insurance Premiums" means the result
obtained by (i) dividing Lessor's Insurance Premiums by the Area of the
Property, and (ii) multiplying that result by the Area of the Premises.
"Lessor's Insurance Premiums" means the premiums charged by Lessor's insurers
for Lessor's Insurance during the calendar year in question. "Lessor's
Insurance" means insurance carried by Lessor attributable or allocable to the
Property for fire and extended coverage insurance, public liability and property
damage insurance, rent loss insurance and any other insurance which Lessor is
required to carry by the holder of any Mortgage on the Property or any part
thereof or which would otherwise be carried by a prudent property owner.
"Insurance Base" means the product obtained by multiplying the Area of the
Premises by Lessor's Insurance Premium for the 1997 calender year divided by
Area of the Property.
3.3 For any partial calendar year, payments under Paragraphs 3.1
and 3.2 shall be prorated based on the actual number of days in such partial
year. If Actual Taxer, for any calendar year are less than the Tax Base, no
payment shall be due under Paragraph 3.1, nor will Lessor have any obligation to
make any payment or reimbursement to Lessee on account thereof. If Actual
Insurance Premiums for any calendar year are less than the Insurance Base, no
amount shall be due Lessor under Paragraph 3.2 nor will Lessor have any
obligation to make any payment or reimbursement to Lessee on account thereof.
Lessor will send Lessee a statement or statements showing amounts due under
Paragraph 3.1 or 3.2 as the case may be, and the amounts reflected on any such
statements shall be due and payable in full 30 days after any such statement is
mailed by Lessor provided, however, that for the calendar year in which the
Lease Term expires, Lessor may but is not obligated to xxxx Lessee under
Paragraph 3.1 and 3.2 for such partial calendar year at any time within 60 days
prior to the expiration of the Lease Term, with said xxxx or bills being due and
payable on the earlier of 30 days after mailing thereof or the day the Lease
Term expires, said xxxx or bills to be based on Lessor's estimate of the amount
due Lessor, with an appropriate adjustment or adjustments being made at such
time as actual figures are available.
3.4 For every whole or partial calendar year during the Lease
Term, Lessee agrees to pay as Additional Rent Lessee's Proportionate Share of
Common Costs, as hereinafter set forth.
3.4.1 "Lessee's Proportionate Share of Common Costs" means the
result obtained by (i) dividing Common Costs by the Area of the Property and
(ii) multiplying that result by the Area of the Premises. "Common Costs" mean
(a) all expenses incurred by Lessor allocable or attributable to, or for the
operation, management and maintenance of the Property, or any part thereof,
other than Taxes and Lessor's Insurance Premiums, including, without limitation,
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costs incurred for lighting; painting; policing of common areas; exterior
cleaning; traffic control; driveway, sidewalk and parking lot maintenance;
garbage or debris collection and removal; landscape maintenance and replacement;
building and utility line maintenance and replacement; and electric, water and
sewer charges not separately metered to lessees of the Property; nightly or
other patrols; and (b) and all levies, assessments, special assessments, dues
and other charges allocable to the Property by virtue of any owner's association
or similar group of which Lessor is a part, the Property's share of costs of
maintenance and repair of common amenities (such as roadways, lakes, streams,
paths, and entrances) for the Project known as OXFORD LAKE BUSINESS CENTER of
which the Property is a part, including any expansions of the Project, and
covenants, restrictions or other agreements affecting the Property or any
portion thereof, including those described in Section 23 hereof.
3.4.2 From and after the Commencement Date, Lessee agrees to pay
Lessor on the first day of each month during the Lease Term a sum equal to
one-twelfth of Lessor's estimate of Lessee's Proportionate Share of Common Costs
for the calendar year (or portion thereof) in question. For the calendar year in
which the Commencement Date occurs, Lessor's estimate of Lessee's Proportionate
Share of Common Costs shall be deemed to be $0.55 per square foot times the Area
of the Premises. For each subsequent calendar year or portion thereof during the
Lease Term, Lessor will provide Lessee with an estimate of Common Costs and a
calculation of the monthly payment due under this subparagraph 3.4.2. If Lessor
does not provide said data prior to January 1 of the calendar year in question,
Lessee shall continue paying monthly amounts from the previous calendar year
until a new estimate is provided, at which time Lessee shall pay on or before
the first day of the next month any shortfall for previous months (or take a
credit against subsequent payments). For any period of less than a month, an
appropriate proration will be made based on the actual number of days involved.
3.4.3 After each calendar year, Lessor will furnish Lessee with a
statement of Lessee's Proportionate Share of Common Costs for such year. If
Lessee's Proportionate Share of Common Costs exceeds the estimated payments made
by Lessee under subparagraph 3.4.2 for the year in question, Lessee will pay
such excess within 30 days after Lessor's statement is mailed. If said estimated
payments exceed Lessee's Proportionate Share of Common Costs, the overpayment
win be credited against the next payments coming due under subparagraph 3.4.2
hereof. For any partial calendar year, an appropriate proration win be made
based on the actual number of days invoked.
3.5 The payment obligations set forth in this Section 3 shall
survive the expiration of the Lease Term.
4. USE.
4.1 Lessee shall use the Premises only for GENERAL OFFICE
purposes, and for no other purpose without the prior written consent of Lessor.
Lessee shall operate its business at the Premises in a reputable manner in
compliance with all applicable laws, ordinances, Building rules, 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
outside storage, disorderly conduct, trespass, noise or nuisance, whatsoever,
about the Premises or the Common Areas, or annoy or disturb any persons
occupying other parts of the Property.
4.2 Lessee shall not install any equipment that will exceed or
overload the capacity of the Building, or the utility facilities located at the
Premises. If any equipment installed by Lessee shall require additional utility
facilities, the same shall be installed by Lessor at Lessee's expense in
accordance with plans and specifications approved by Lessor prior to
installation.
4.3 Lessee shall not, and shall not allow or suffer (whether
intentionally or otherwise), any Hazardous Substance to be introduced, kept,
stored, created, emitted, released, impregnated or discharged into, on or in the
Property (including sanitary and storm sewer systems), the Building or the
Premises. As used herein "Hazardous Substance" means any hazardous, toxic or
dangerous waste, substance or material, whether or not in excess of maximum
levels set by any governmental or other authority. Lessee shall be liable for
any damage caused by its violation hereof, including, but not limited to the
cost of removal of any Hazardous Substance from the Property, the Building or
the Premises the cost of repairing and restoring the same loss, expense or
damage relating to the existence of any Mortgage (including cost of compliance
with lender requirements and damage caused by default, acceleration or
foreclosure); reimbursement for any fines or impositions imposed by any
governmental authority, agency or court and the cost of complying with the
requirements of any governmental authority, agency or court.
5. UTILITIES
5.1 Lessee shall pay for electricity, gas, telephone and other
utilities service supplied to the Premises.
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5.2 Lessor shall not be held liable for any damage or injury
suffered by Lessee or by any of Lessee's licensees, agents, invitees, servants,
employees, contractors or subcontractors, resulting directly or indirectly from
the installation, use or interruption of any utility service to the Premises or
Property. No temporary interruption of services shall relieve Lessee from
fulfillment of any covenant of this Lease or constitute a constructive eviction.
6. MAINTENANCE.
6.1 Lessor shall keep the roof, foundation, exterior walls and all
sewer and utility lines to the Building in good order and repair, except as to
damage to which Section 14 is applicable.
6.2 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 a reasonable time in which to make such repairs.
6.3 Lessee shall keep the Premises maintained free from all
litter, dirt, debris and obstructions and in a clean and sanitary condition.
Notwithstanding anything herein to the contrary, Lessee shall maintain, replace
and repair any improvements (including, but not limited to, utility lines, sewer
connections, plumbing, wiring and glass) which are or were installed for Lessee.
Lessee will purchase and keep in force a maintenance agreement covering the
servicing of the heating and air conditioning equipment serving the Premises. At
the expiration or other termination of this Lease, Lessee shall surrender the
Premises (and keys thereto) in as good condition as when received, ordinary wear
and tear only excepted.
7. FORCE MAJEURE. In the event that Lessor shall be delayed or
hindered in or prevented from the performance of any act required hereunder by
reason of strikes, lock-outs, 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 for financial
reasons) not the fault of Lessor, then performance of such act shall be excused
for the period of the delay and the period for the performance of such act shall
be extended for a period equivalent to the period of such delay. The provisions
of this Section 7 shall not cancel or postpone or delay the due date of any
payment to be made hereunder.
8. PROPERTY AND LIABILITY INSURANCE.
8.1 Throughout the Lease Term, Lessor will insure the Property
(excluding foundations and excavations) and the machinery and equipment
contained therein owned by Lessor (excluding any property with respect to which
Lessee is obligated to insure pursuant to Paragraph 8.3 below) against damage by
fire, lightning, explosion and extended coverage, in amounts and with carriers
satisfactory to Lessor. All property of Lessee, Lessee's agent, servants,
employees, invitees, licensees, contractors, subcontractors, or any other
person, shall be on the Premises at the risk of Lessee only, and Lessor shall
not be responsible therefor.
8.2 Lessee shall comply with all insurance regulations so the
lowest fire, lightning, explosion, extended coverage and liability insurance
rates available for the Property may be obtained by Lessor, and nothing shall be
done or kept in or on the Property or Premises by Lessee which win cause
cancellation of any such insurance or increase the rate thereof, or threat
thereof Lessee shall remedy any condition giving rise to such cancellation,
reduction or cost increase or threat thereof within twenty-four (24) hours after
notice thereof by Lessor.
8.3 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 insureds therein as their respective interests may appear, all
insurance required by law and such insurance as is reasonably required by Lessor
for risks against which a prudent tenant would protect itself, including,
without limitation the following:
8.3.1 Upon property of every description and kind owned by Lessee
and located at the Property or for which Lessee is legacy liable or installed by
or on behalf of Lessee, including, without limitation, furniture, fittings,
installations, alterations, additions, partitions and fixtures, in an amount not
less than one hundred percent (100%) of the full replacement cost thereof.
8.3.2 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; such insurance shall include a waiver of
subrogation clause in favor of Lessor and coverage against liability for bodily
injuries or property damage arising out of the use
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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.
8.4 All insurance policies shall be taken out with companies
licensed and registered to operate in the State of Georgia acceptable to Lessor
and in form satisfactory to Lessor. Lessee shall deliver certificates evidencing
such insurance policies, and any endorsement, rider or renewal thereof, to
Lessor; certificates evidencing renewals shall be delivered to Lessor in no
event less than thirty (30) days prior to any material change, cancellation or
termination thereof
9. ALTERATIONS AND IMPROVEMENTS.
9.1 See Exhibit "C".
9.2 Other than the matters specified in this Lease, 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 shall not be unreasonably withheld. All
alterations, additions or improvements made, installed in or attached to the
Premises by Lessee shall be made at Lessee's expense in a good and workmanlike
manner, strictly in accordance with the plans and specifications approved by
Lessor. Prior to the commencement of any such work by Lessee, 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, public liability insurance and property damage
insurance, all in amounts satisfactory to Lessor, are in force and effect and
maintained by all contractors and subcontractors engaged by Lessee to perform
such work.
9.3 Lessee shall keep the Premises free from all liens, rights to
liens or claims of liens of contractors, subcontractors, mechanics or
materialmen for work done or materials furnished to the Property at the request
of Lessee. If any claim of lien, or other statutory notice relating to mechanics
and materialmen's liens, is filed, Lessor may, but shall not be obligated to,
discharge the same either by paying the amount claimed to be due or by procuring
the discharge of such lien or statutory notice by deposit or by bonding
proceedings. Any amount so paid by Lessor and all costs and expenses, including
without limitation attorneys' fees incurred by Lessor in connections therewith
shall constitute Additional Rent payable by Lessee on demand. Lessee shall not
have the authority to subject the interest or estate of Lessor or the Property
or any part thereof to any liens, right to liens or claims of liens for
services, materials, supplies or equipment furnished to Lessee.
9.4 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 office
equipment and appliances put in at the expense of Lessee, shall be the property
of Lessor, and shall remain upon and be surrendered in good condition with the
Premises at the expiration or other termination of this Lease. Notwithstanding
the foregoing, however, if Lessor so elects, it shall be Lessee's obligation
prior to expiration of this Lease at Lessee's expense (notwithstanding the
expiration of the Lease Term to restore the Premises to the condition they were
in previous to such alterations, additions, improvements, partitions and
fixtures.
10. ASSIGNMENT OR SUBLETTING.
10.1 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 shall not be unreasonably withheld. Any consent by Lessor under
the preceding sentence shall not be deemed to be a consent to any subsequent
event within the scope of the preceding sentence. An assignment of stock,
general partnership or other ownership interest in Lessee, or any merger,
consolidation or other corporate reorganization, shall be deemed an assignment
within the meaning of this Paragraph.
10.2 If Lessee shall make any assignment of this Lease or shall
make any subletting hereunder in any way not authorized by the terms hereof, the
acceptance by Lessor of any rent or other Amount Due from any person claiming as
assignee, sublessee or otherwise shall not be construed as a recognition of or
consent to such 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 rent or any other Amount Due under this Lease from any person
offering to pay the same without thereby acknowledging the person so paying as a
Lessee in place of Lessee hereinabove named, and
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without releasing said Lessee from the obligations of this Lease, but the same
shall be taken to be a payment on account by Lessee.
10.3 In the case of any assignment consented to or permitted by
Lessor hereunder, at the time of such assignment Lessee shall pay Lessor as
consideration therefor, as Additional Rent, an amount equal to all sums and
other consideration paid to Lessee by the assignee for or by reason of such
assignment (including any sum paid for the sale, rental or use of Lessee's
property) less the reasonable brokerage commissions and legal fees, if any,
actually paid by Lessee to unaffiliated third parties in connection with such
assignment. In the case of any subletting consented to or permitted by Lessor
hereunder, at the time of such subletting, Lessee shall pay Lessor as
consideration therefor as Additional Rent, an amount equal to any rents,
additional charges or other consideration payable under the sublease to Lessee
by the subtenant (including any sums paid for the sale, rental or use of
Lessee's property) which are in excess of the Base Rent during the term of the
sublease in respect of the subleased space, less the reasonable brokerage
commissions and legal fees, if any, actually paid by Lessee to unaffiliated
third parties in connection with such subletting.
11. DEFAULTS
11.1 In the event that (i) the Base Rent or any Additional Rent
herein reserved, or any part thereof, or any other Amount Due, shall not be paid
within five (5) business days after written notice or (ii) Lessee shall fail to
comply with any of the other terms, covenants, conditions or agreements herein
contained or in any of the rules and regulations now or hereafter established
for the government or operation of the Building and such failure shall continue
for 30 days or more after written notice, or (iii) Lessee shall fail to comply
with any term, provision condition or covenant of any other agreement between
Lessor and Lessee and such failure shall continue for 30 days or more after
written notice, or (iv) Lessee makes an assignment for the benefit of creditors,
fails to pay its debts as they mature, seeks, prepares to seek, or has filed
against it, any petition for relief under any federal, state or other
bankruptcy, debtor relief or insolvency law now or hereafter enacted, or a
receiver or trustee is appointed for any substantial portion of Lessee's assets
or business; then, in any such event, Lessor shall have the option, but not the
obligation, to do any or more of the following:
11.1.1 Terminate this Lease, in which event Lessee shall surrender
the Premises to Lessor immediately without further notice or demand; and Lessor
may, without further notice or demand, thereupon enter the Premises and take
possession of any repossess the same, 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 other remedy allowed in such
cases. If Lessor exercises its rights under this subparagraph 11.1.1., Lessee
agrees that in addition to any other recovery permitted hereunder or by law,
Lessor shall be entitled to recover all Amounts Due (with interest as herein
provided) plus fees and costs under Section 28 hereof, as elements of Lessor's
damages.
11.1.2 Without terminating this Lease and without in any way
diminishing Lessee's liability for the payment of all Annual Base Rental,
Additional Rent and all other Amounts Due, whether past due or which come due
during the remainder of the Lease Term (except for the credit for rentals
collected upon reletting set forth in the next sentence), retake possession of
the Premises (whether by self-help, dispossessory or eviction proceeding or
otherwise), and, if Lessor desires to do so (though it shall have absolutely no
obligation to do so), rent same, or any part thereof, for Lessee's account 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. In the event Lessor does relet
the Premises pursuant to this Paragraph, whether or not Lessor elects to collect
liquidated damages hereunder, all rent received by Lessor from such reletting
during the Lease Term shall be applied first, to the payment of any Amount Due
other than Base Rent; second, to the payment of any costs and expenses of such
reletting, including but not limited to brokerage fees, attorneys' fees, and
costs of such changes, improvements, alterations and repairs; third, to Base
Rent due and unpaid hereunder, fourth, any residue shall be held by Lessor and
applied in payment of future rent or damage as the same may become due and
payable hereunder; and fifth, when all of Lessee's obligations have been
satisfied, any balance remaining shall be paid to Lessee. In the event Lessor
exercises its rights under this Paragraph 11.1.2. at Lessor's sole option Lessee
shall pay Lessor upon demand as liquidated damages for Lessee's breach and not
as a penalty, an amount equal to the sum of (i) all unpaid Annual Base Rental
discounted at the rate of six (6%) percent per annum from the date each
installment is due hereunder, plus (ii) all Amounts Due (with interest as herein
provided), plus (iii) fees and costs as provided in Section 28 hereof. It is the
express intent of the parties that the liquidated damages provided for in the
preceding sentence be treated as a full liquidation of damages for such breach,
the parties agreeing that said liquidated damages are a fair and
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reasonable pre-estimate of Lessor's damages and that the actual amount of
damages sustained by Lessor in the event of breach is not readily ascertainable.
11.1.3 Correct or cure such default and recover such amount expended
as an Amount Due hereunder.
11.1.4 Recover any and all costs incurred by Lessor resulting
directly, indirectly, proximately or remotely from such default, including but
not limited to reasonable attorneys' fees, as an Amount Due hereunder.
11.2 In the event of a default or threatened default of this Lease
by Lessee, Lessor shall be entitled to all equitable remedies, including without
limitation injunction and specific performance. 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 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 such default, or any violation or
breach of any of the terms, provisions, or covenants herein contained, or a
waiver of Lessor's right thereafter to insist upon strict compliance with the
terms hereof.
12. DAMAGE AND CONDEMNATION.
12.1 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 such 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 to
temporarily vacate the Premises while the same are being repaired and, subject
to the provisions of this Paragraph 12.1, 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 such written
notification, but the other terms hereof shall remain in full force and effect.
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
such 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 such written notification, but the other terms hereof shall remain
in full force and effect.
12.2 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 said Premises or any
portion thereof, then Lessor, at its option, may terminate this Lease as of the
date possession is taken by the condemning authority 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 or other sums
awarded in connection with any condemnation or taking of any portion of the
Premises or the Property, or paid as the purchase price for any conveyance in
lieu of formal condemnation proceedings, whether for the fee or the leasehold
interest, shall belong to and be the property of Lessor. Lessee shall execute
and delivery any instruments as Lessor may deem necessary to expedite any
condemnation proceedings or 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 said lands and Premises or any portion thereof. 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 the Premises within
a period of twelve (12) months after the date of the physical taking, and such
restoration shall make the same reasonably tenantable and suitable for the
general use being made by Lessee prior to the taking; 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 such
restoration and reconstruction on or before twelve (12) months after the date of
physical taking or if the Premises (or so much thereof as would render them
untenantable) are taken in condemnation, Lessee shall have the right to cancel
this Lease by prompt notice after such occurrence. If this lease continues in
effect after such physical
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taking, the rent payable hereunder be equitably adjusted both during the period
of restoration operations of Lessor and during the unexpired portion of the
Lease Term.
12.3 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 any part of the Premises, such repairs,
alterations, removal reconstruction or improvement 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 such repairs,
alterations, removal, reconstruction or improvement, except that rent shall
xxxxx during the period of and to the extent of untenantability; provided, if
Lessor reasonably concludes that the work involved cannot be reasonably
accomplished within one hundred eighty (180) days, Lessor may at its option
terminate this lease by notice to Lessee; provided, further, that where the
requirement by a governmental authority to repair, alter, remove, reconstruct or
improve any part of the Premises arises out of any act of omission or commission
by Lessee, then such repair, alteration, removal, reconstruction or improvement
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.
13. TRANSFER. This Section shall apply only at such times and from
time to time as the Area of the Premises is 5,000 square feet or less. In such
event, Lessor hereby reserves the right, at its sole option and upon giving at
least sixty (60) days prior written notice to Lessee, to transfer and remove
Lessee from the Premises from time to time to any other available space in the
Property of substantially equal area. Lessor hereby agrees to bear the expense
of such transfer and removal, as well as the expense of any renovations or
alterations which are necessary to make the new space conform substantially in
layout and appointment to the Premises.
14. LIABILITY OF LESSOR. Notwithstanding that joint or concurrent
liability may be imposed upon Lessor by law, Lessee shall indemnify, defend and
hold harmless Lessor and the Property, at Lessee's expense, against any loss,
cost, damage or expense (including attorneys' fees and court costs) relating to
or as a result of (a) any default or failure to comply with the terms hereof
(whether in connection with termination hereof or otherwise) by Lessee or any
permitted sub-tenant hereunder; (b) any act or negligence of Lessee or its
agents, contractors, employees, invitees or licensees; and (c) all claims for
damages to persons or property by reason of the use or occupancy of the Premises
not caused by Lessor. Moreover, Lessor shall not be liable for any damage or
injury to the Premises, Lessee's property, to Lessee, its agents, contractors,
employees, invitees or licensees, arising from any use or condition of the
Property or the act or neglect of co-tenants or any other person, or the
malfunction of any equipment or apparatus serving the Premises. Any and all
claims against Lessor for any damage referred to in this Section 14 are hereby
waived and released by Lessee. Notwithstanding anything contained herein to the
contrary, in the event Lessor incurs any liability to Lessee hereunder, such
liability shall be satisfied only out of Lessor's interest in the Premises, it
being agreed that the liability of Lessor, its venturers, partners (individually
and as partners), shareholders, officers, agents and employees, shall in all
events be satisfied out of Lessor's interest in the Premises.
15. RIGHT OF ENTRY. Lessor reserves the right to use, at its
discretion, the Property and every part thereof, except the interior of the
Premises, in any manner which does not materially interfere with the use of the
Premises to be made by Lessee hereunder. Lessor reserves the right, for itself
or its mortgagees and prospective purchasers or tenants, or their respective
agents and duly authorized representatives, to enter and be upon the Premises at
any time and from time to time to inspect the Premises to see that Lessee is
complying with all obligations hereunder and to repair, maintain, alter, improve
and remodel, but Lessor shall not materially interfere with Lessee's normal
operations 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 Section 15 shall
imply any duty on the part of Lessor to repair, maintain, alter, improve or
remodel,
16. BUILDING RULES AND REGULATIONS. Lessor reserves the right to
establish 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. As and when established, such rules and regulations will be deemed
incorporated into this Lease. Lessee shall comply with any such rules and
regulations established by Lessor.
17. PROPERTY LEFT ON THE PREMISES. If upon the expiration of this
Lease, or if the Premises should be vacated or abandoned by Lessee at any time,
or this Lease should terminate for any cause, Lessee or Lessee's agents,
servants, employees, invitees, licensees, contractors, subcontractors or any
other person should leave any property of any kind or character in or upon the
Property or Premises, the fact of such leaving of property in or upon the
Property or Premises shall be conclusive evidence of intent by Lessee or such
person to abandon such
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property, and such leaving shall constitute abandonment of the property. Lessor,
its agents or attorneys, shall have the right and authority without notice to
Lessee or anyone else except as required by law, 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 expenses incurred under this Section, notwithstanding the
expiration or termination of this Lease. The proceeds from the sale or other
disposition of such property shall belong to the Lessor as compensation for the
removal and disposition of said property.
18. OTHER INTERESTS.
18.1 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, security agreement, 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 the "Mortgage"). This clause shall be self-operative and no
further instrument of subordination need be required by any holder of any
Mortgage. 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.
18.2 In the event of a sale or conveyance by Lessor of Lessor's
interest in the Premises (including a long term ground lease) 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.
18.3 If the holder of a Mortgage shall hereafter succeed to the
rights of Lessor under this Lease, whether through possession or foreclosure
action or delivery of a new lease, Lessee shall, at the option of the holder of
such Mortgage, attorn to and recognize such successor as Lessee's landlord under
this Lease and shall promptly execute and deliver any instrument that may be
necessary to evidence such attornment. Upon such attornment, this Lease shall
continue in full force and effect as a direct lease between every successor
landlord and Lessee, subject to all of the terms, covenants and conditions of
this Lease, and Lessee's tenancy hereunder shall not be disturbed so long as
Lessee is in full compliance with the terms and conditions hereof.
18.4 In the event that lessee is notified of the existence of any
Mortgage and of the address of the holder of any such Mortgage, Lessee agrees
that it will give the holder of any such Mortgage notice of any claimed default
by Lessor under this Lease, and win exercise no remedies which it may have on
account thereof until forty-five (45) days have elapsed alter the receipt of
such notice by the holder of said Mortgage without cure thereof.
18.5 Lessee shall, at Lessor's request, promptly execute,
acknowledge and deliver any instrument which may be required to evidence or
confirm the subordination and attornment provisions set forth in Paragraphs
18.1, 18.2 and 18.3 hereof, and, upon Lessee's failure to do so, Lessor may, in
addition to any other rights or remedies hereunder, execute, acknowledge, and
delivery any document needed to accomplish same, as the agent and
attorney-in-fact of Lessee, and Lessee hereby irrevocably and unconditionally
constitute Lessor as its attorney-in-fact for such purpose, Lessee acknowledging
that such appointment is coupled with an interest.
19. LANDLORD'S LIEN.
19.1 Intentionally omitted.
19.2 Lessee covenants to occupy the Premises on or before the
Commencement Date.
20. DELAYED POSSESSION. If Lessor shall fail to deliver to Lessee
actual possession of the Premises by the Commencement Date rent shall xxxxx
until such possession is given, but Lessor shall not be liable to Lessee for
such failure nor shall the Lease Term be thereby extended. Notwithstanding the
foregoing, however, if the Premises are not available for occupancy by Lessee
within thirty (30) days after the Commencement Date through no default of
Lessee, this Lease shall be voidable by either party, and if voided, any
payments made to Lessor by Lessee hereunder shall be immediately refunded to
Lessee; provided however that such date shall be extended to the extent
permitted under Section 7 hereof. The Premises shall be "available for
occupancy" when they are so completed that Lessee may conduct normal operations,
or when a Certificate of Occupancy has been issued for the Premises, whichever
is earlier.
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21. HOLDING OVER. In the event Lessee remains in possession of the
leased Premises after the expiration or earlier termination of the term of this
Lease, with Lessor's consent or acquiescence but without any express written
agreement of the parties, Lessee shall be a tenant at will and such tenancy
shall be subject to all of the terms and provisions hereof, except that the
Monthly Base Rental and the monthly Additional Rent for such holdover period
shall be one hundred fifty percent (150%) of the Monthly Base Rental and the
monthly Additional Rent due under this lease for the month immediately preceding
the month during which such expiration or earlier termination of the Term of
this Lease occurs, and there shall be no renewal of this lease by operation of
law or otherwise. Nothing in this paragraph shall be interpreted or construed to
give Lessee any right whatsoever to remain in possession of the leased Premises
after the expiration or earlier termination of the term of this lease.
22. NO WAIVER. Lessee understands and acknowledges that not
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, or of Lessor's right thereafter to insist upon
strict compliance with the terms hereof.
23. COMPLIANCE WITH PROTECTIVE COVENANTS. In addition to and
without in any way limited any of the foregoing provisions, Lessee shall comply
with any protective covenants now or hereafter of record against the Property
and with any changes to such covenants and/or rules and standards duly adopted
in accordance with the procedures for either therein.
24. SIGNS. Lessee shall not install paint, display, inscribe,
place or affix any sign, picture, advertisement, notice, lettering or direction
(hereinafter collectively called a "Sign") which could be visible from outside
of the Premises without first securing written consent from Lessor therefor. 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 expense, and shall in a good
and workmanlike manner property repair any damage caused by the installation,
existence or removal of Lessee's Signs.
25. ESTOPPEL CERTIFICATE. Lessee shall, at any time, and from time
to time, upon not less than ten (10) days prior written notice from Lessor,
execute, acknowledge and deliver to Lessor without charge a statement in writing
in such form and substance as may be required by Lessor (a) certifying that this
Lease is unmodified and in full force and effect and the dates to which the rent
and other charges are paid in advance, if any; (b) certifying the Commencement
Date of this Lease and the monthly Base Rent and Additional Rent under Paragraph
3 hereof being paid by Lessee; (c) acknowledging that there are not, to Lessee's
knowledge, any uncured defaults on the part of Lessor or Lessee hereunder and
that Lessee has no right of offset, counterclaim or deduction from or against
future rent; (d) stating that no rent not yet due and payable as of the date of
the letter has been paid in advance and no concessions, rebates, allowances or
other considerations for free or reduced rent in the future have been granted;
(e) all improvements or other work required to be made or performed by the
Lessor have been fully completed in accordance with the plans and specifications
therefor and to the satisfaction of the Lessee; and (f) the Lessee has accepted
and occupied the Premises, and Lessee is in full and complete possession of the
Premises and actively conducting its business therein. Any such statement may be
relied upon by any prospective purchaser of, or lender upon the security of, the
Premises.
26. COMMON AREA CONTROL.
26. Lessee acknowledges and agrees that all areas outside of the
Premises shall at all times be subject to the exclusive control and management
of Lessor.
26.2 Lessee and its servants, agents, employees, contractors,
subcontractors, invitees and licensees shall not be entitled to use more of the
parking spaces for the Building than 4 spaces per thousand square feet of Area
of the Premises. Lessor shall have the right, but not the duty, to assign
parking spaces to tenants of the Building.
27. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been given and effective when
delivered in person or when deposited in the United States Mail, return receipt
requested, addressed, if to Lessor, at the following addresses:
Xxxxxxx Properties, Inc., as Property Manager
c/o The Xxxxxxx Companies
0000 Xxxxxxxxxx Xxxxxxx, Xxxxxxxx 000X
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx
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with a copy to:
Trans-Fabu, L.P.
x/x Xxxxxxx Xxxxx Xxxxxxx
Xxxxxxxx Xxxxx, Xxxxx 000
0000 Xxxxxxxx Xxxx, XX
Xxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxx, Xx.
or to such other addresses as Lessor may direct from time to time by fifteen
(15) days prior written notice, and if to Lessee, Vanstar Corporation, 0000 Xxxx
Xxx Xxxxxxx Xxxx., Xxxxxxxxxx, Xxxxxxxxxx, 00000, Attention: Xxx Xxxxxxxx with a
copy to the Premises. Lessee hereby appoints as its agent to receive service of
all dispossessory or distraint proceedings and notices in connection therewith,
the person in charge of or occupying the Premises at the time; and if no person
is in charge of or occupying the Premises, then such service or notice may be
made by attaching the same on the main entrance to the Premises and on the same
day enclosing, directing, stamping and marking by first class mail a copy of
such service or notice to Lessee at the last known address of Lessee.
28. ATTORNEYS' FEES. If any Amount Due hereunder is collected by or through
an attorney Lessee agrees to pay reasonable attorneys fees, together with any
costs and expenses which Lessor incurs in attempting to enforce any of the
obligations or Lessee under this Lease, if Lessee does not prevail in such
proceedings.
29. HOMESTEAD. Lessee waives all homestead rights and exemptions which it
may have undo any law as against any obligations owing under this Lease. Lessee
hereby assigns to Lessor its homestead and exemption.
30. 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 the
same 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 such check or payment without prejudice to Lessor's right
to recover the balance of such rent or pursue any other remedy provided in this
Lease.
31. BROKERS. Other than Xxxxxxx Properties, Inc. and Xxxxxx (hereinafter
collectively called "Agent" ) Lessee warrants and represents that it has had no
dealings with any broker or agent in connection with this Lease and covenants to
pay, hold harmless and indemnify Lessor and Agent from and against any and all
cost, expense or liability for any compensation, commissions and charges claimed
by any broker or agent with respect to this Lease or negotiations thereof who
purports to have been engaged by Lessee.
32. MISCELLANEOUS.
32.1 All the 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 10 hereof. 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.
32.2 The captions are inserted in this Lease for convenience only, and in no
way define, limit, or describe the scope of intent of this Lease, or of any
provision hereof, nor in any way affect the interpretation of this Lease.
32.3 This Lease is made and delivered in, and shall be interpreted,
construed and enforced in accordance with, the laws of the state of Georgia.
32.4 This Lease and the schedules and exhibits attached hereto and forming
part hereof set forth all of the covenants, promises, agreements, conditions and
unman between Lessor and Lessee concerning the Premises and the Property, and
thereafter no covenants, promises, terms, conditions or understandings, either
oral or written, between them other than as are herein set forth. Except as
herein otherwise provided, no subsequent alteration, amendment, change or
addition to this Lease shall be binding upon Lessor or Lessee unless reduced to
writing and signed by the party to be bound thereby.
32.5 The terms, conditions, covenants and provisions of this Lease shall be
deemed to be severable and legally independent. If any Cause 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 such other
clauses or provisions shall remain in full force and effect.
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32.6 This Lease, or any portion hereof, shall not be recorded, unless both
parties hereto agree to such recording.
32.7 Time is of the essence of this Lease.
32.8 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; Lessee has only a usufruct not subject to levy
and sale.
For additional terms and Special Stipulations of this Lease (if any) see Exhibit
C, 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: TRANS-FABU, L.P.
By: /s/ Xxxxxx X. Day (SEAL)
---------------------------------
Authorized Signatory
LESSEE: Vanstar Corporation
By: /s/ X.X. Xxxxxxxxxxx
---------------------------------
Title: SENIOR VP
Attest: /s/ Xxxxxxx X. English
-----------------------------
Title: ASST. SECRETARY
[CORPORATE SEAL]
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EXHIBIT C
SPECIAL STIPULATIONS
1. BASE RENTAL
The base monthly rental shall adjust as follows:
December 1, 1996 - November 30, 1997 $28,503.12/month
December 1, 1997 - November 30, 1998 $29,358.21/month
December 1, 1998 - November 30, 1999 $30,238.96/month
2. Landlord shall be responsible for the cost of providing new carpet and
painting throughout.
3. Landlord shall insure that all building systems (electrical, mechanical
and plumbing) are in normal working condition upon lease commencement.
4. Within fifteen (15) days of the Commencement Date, Landlord or
Landlord's selected contractor shall service all HVAC systems for the
Premises to insure that each unit is in proper working condition.
Additionally, Landlord shall warrant each unit for the first year of
the lease term.
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FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (the "Amendment") made as of this ____
day of April, 1997, by and between Highwoods/Forsyth Limited Partnership
("Lessor") and Vanstar Corporation (hereinafter called "Lessee").
W I T N E S S E T H:
WHEREAS, Lessee and Trans-Fabu Limited Partnership, predecessor in
interest to Lessor, entered into a Lease ("Lease") dated November 27, 1996 for
certain leased premises known as 0000 Xxxxxxxx xxxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxx 00000 (the "Premises");
WHEREAS, as of March 30, 1997, Lessor acquired title to the Premises
and took an assignment of lessor's interest under the Lease;
WHEREAS, Lessee and Lessor desire to expand the Premises pursuant to
this Amendment;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt of which is
hereby acknowledged, Lessee and Lessor agree as follows:
1. As of May 1, 1997, the Effective Date, the "Premises" shall
be expanded to include Suite 220 consisting of 6,710 square feet as shown on
floor plan attached as Exhibit A. The new "Area of the Premises" shall mean
34,073 square feet.
2. Lessee and Lessor agree that the Lease Term for the
"Premises" shall expire at midnight on November 30, 1999. The Base Monthly
Rental rate for the "Premises" shall adjust as follows:
May 1, 1997 - November 30, 1997 $35,492.71/Month
December 1, 1997 - November 30, 1998 $36,543.29/Month
December 1, 1997 - November 30, 1999 $37,650.67/Month
Monthly payments equal to one-twelfth of Lessor's estimate of Lessee's
Proportionate Share of Common Costs for the applicable calendar year shall also
be paid by Lessee. Beginning May 1, 1997 this monthly amount shall, subject to
adjustment as provided in the Lease, be $1,561.68.
3. Lessor will provide the Lessee with a paint and carpet
improvement allowance in the amount of $11,138.00.
4. This Amendment shall only become effective if Memotec, Inc.
and Lessor fully execute a Termination Agreement for Suite 220 on or before May
9, 1997.
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Except as modified in this Agreement, the terms of the Lease shall
continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals on
the year and date written below.
WITNESS TO LESSEE: LESSEE:
/s/ Xxxxxxx Xxxxxxxx VANSTAR CORPORATION
----------------------------
/s/ Xxx Xxxxxxxx
---------------------------- ------------------------------------
Its Director Facilities
---------------------------------
Date 7-17-97
--------------------------------
WITNESS TO LESSOR: LESSOR:
HIGHWOODS/FORSYTH LIMITED
---------------------------- PARTNERSHIP
---------------------------- By: Highwoods Properties, Inc.,
general partner
By: /s/ Xxxx Xxxxxxxx
------------------------
Xxxx Xxxxxxxx
Senior Vice President
(CORPORATE SEAL)
