Exhibit 10.1(a)
LEASE AGREEMENT
---------------
THIS LEASE AGREEMENT (as it may be amended from time to time, this "Lease")
is made as of the 2nd day of April, 1997 (the "Effective Date"), by and between
BATTLESHIP, LLC, a Tennessee limited liability company ("Landlord"), and PMT
SERVICES, INC., a Tennessee corporation ("Tenant").
R E C I T A L S:
----------------
WHEREAS, Tenant desires to lease for its principal place of business the
Leased Premises as more particularly described herein, which Leased Premises
shall be located in an office building located in Nashville, Davidson County,
Tennessee (the "Building"); and
WHEREAS, the Building is situated on the tract of land described on Exhibit
A attached hereto and incorporated herein by this reference ("Land"); and
WHEREAS, Landlord has a contract to purchase the Land, is willing to
renovate the Building on the Land and lease the Leased Premises to Tenant; and
WHEREAS, pursuant to a Real Estate Contract dated as of April 2, 1997
between Green Hills Commons, LLC as seller therein and Landlord as buyer therein
(as it may be amended from time to time, the "Real Estate Contract"), Landlord
has agreed to purchase the Land and the Building subject to this Lease and the
terms and conditions contained in the Real Estate Contract.
NOW, THEREFORE, for valuable consideration and the mutual covenants herein
contained, the receipt and sufficiency of which are hereby acknowledged, the
parties, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
1.01 As used in this Lease, including without limitation the Recitals
hereof, the following terms shall have the following meanings, unless the
context requires otherwise:
"Abandoned Retail Space" has the meaning set forth in Section 3.6 hereof.
"Actual Adjustment Amount" has the meaning set forth in Section 3.3(e)
hereof.
"Additional Leases" means collectively the leases with tenants in the
Building other than Tenant, as they may be amended and/or restated from time to
time.
"Additional Rent" has the meaning set forth in Section 3.5 hereof.
"Additional Tenant's HVAC Payment" has the meaning set forth in Section 3.4
hereof.
"Adjustment Date" means the first day of the calendar month in which the
first regularly scheduled monthly payment of principal and interest (as opposed
to an interest payment only) payable by Landlord to Tenant in connection with
the Loan becomes due and payable.
"Alterations" has the meaning set forth in Section 7.1 hereof.
"Annual Certificate" has the meaning set forth in Section 3.3(e) hereof.
"Architect" means HKW Associates, PC.
"Bankruptcy Code" has the meaning set forth in Section 19.1 hereof.
"Base Rent" has the meaning set forth in Section 3.1 hereof.
"Base Rent Adjustment" means collectively the Utility Base Rent Adjustment,
the TIP Base Rent Adjustment and the Remaining Operating Base Rent Adjustment.
"Budget" means the Budget in the form of Exhibit B attached hereto and
incorporated herein by this reference, as such Budget may be amended in writing
from time to time by Landlord and Tenant.
"Building" has the meaning set forth in the Recitals.
"Building Plans" has the meaning set forth in Section 4.1 hereof.
"Business Day" means any day on which commercial lending institutions
having an office in Nashville, Tennessee are officially open for business.
"Commencement Date" has the meaning set forth in Section 2.1 hereof.
"Common Areas" refers to the areas of the Building and the Land that are
designed for use in common by all tenants of the Building and their respective
employees, agents, customers, invitees and others, and includes, by way of
illustration and not
-2-
limitation, entrances and exits, hallways on multi-tenant floors, stairwells,
elevators, restrooms on multi-tenant floors, sidewalks, driveways, parking
areas, landscaped areas and other areas as may be designated by Landlord as part
of the Common Areas of the Building. Tenant shall have the non-exclusive right,
in common with others, to the use of the Common Areas, subject to such
nondiscriminatory rules and regulations as may be adopted from time to time by
Landlord, including without limitation those set forth in Exhibit C attached
hereto and incorporated herein by this reference.
"Compliance Work" has the meaning set forth in Section 6.5 hereof.
"Contractor" means X.X. Xxxxxxx Contractor, LLC, a Tennessee limited
liability company.
"CPI" shall mean the consumer price index published by the Bureau of Labor
Statistics of the United States Department of Labor that is entitled "Consumer
Price Indexes for All Urban Consumers, United States City Average, All Items
1982-84 = 100 unadjusted" or in the event said index is no longer provided by
the Bureau of Labor Statistics, the index furnished by the Bureau of Labor
Statistics that most accurately and completely replaces the above-referenced
index.
"CPI Adjustment" is defined as a percentage obtained by dividing the CPI in
effect for the month of JANUARY of the Lease Year in question by the CPI that
was in effect for the month of JANUARY of the prior Lease Year; provided,
however, in no event shall the CPI Adjustment ever be less than one (1).
"Defaulting Retail Tenant" has the meaning set forth in Section 3.6 hereof.
"Default Rate" means three (3) percentage points higher than the Prime
Rate, but not to exceed the Maximum Rate.
"Development Agreement" means that certain Parking Facility Development
Agreement dated as of April 2, 1997 and executed by and between Landlord and
Green Hills Commons, LLC, a Tennessee limited liability company.
"Easement Agreement" means that certain Easement Agreement dated as of
April 2, 1997, of record in Book 10404, page 704, Register's Office for
Davidson County, Tennessee, as it may be amended from time to time in accordance
with the terms thereof.
"Escrow Account" has the meaning set forth in Section 19.2(c) hereof.
-3-
"Estimated Adjustment Payment" has the meaning set forth in Section 3.3(e)
hereof.
"Estimated TIP Base Rent Adjustment" has the meaning set forth in Section
3.3(c) hereof.
"Estimated Remaining Operating Base Rent Adjustment" has the meaning set
forth in Section 3.3(d) hereof.
"Estimated Utility Costs" has the meaning set forth in Section 3.3(a)
hereof.
"Event of Default" has the meaning set forth in Section 18.1 hereof.
"Expansion Period" has the meaning set forth in Section 31.2(b) hereof.
"Fourth Floor Lease" has the meaning set forth in Section 31.2(a) hereof.
"Fourth Floor Renewal Term" has the meaning set forth in Section 31.2(a)
hereof.
"Fourth Floor Term" has the meaning set forth in Section 31.2(a) hereof.
"Holdover Period" has the meaning set forth in Section 20.1 hereof.
"HVAC Rate" means the charge equal to $109.00 per hour to heat and cool the
Building.
"Insolvency Laws" has the meaning set forth in Section 19.1 hereof.
"Insurance Costs" means the costs for casualty, liability and rent loss
insurance applicable to the Building and Common Areas and Landlord's personal
property used in connection therewith.
"Investigation" has the meaning set forth in Section 3.3(e) hereof.
"Land" has the meaning set forth in the Recitals.
"Laws" means all laws, ordinances, rules, regulations, statutes, codes,
acts and ordinances, including without limitation, the Americans with
Disabilities Act and regulations thereunder and the Metropolitan Codes of Law of
Nashville and Davidson County, Tennessee, as the same may be amended from time
to time.
-4-
"Leased Premises" means the Office Space and the Storage Space.
"Lease Term" has the meaning set forth in Section 2.1 hereof.
"Lease Year" means any twelve (12) month period that commences on the
Measurement Date or any subsequent anniversary of the Measurement Date, except
for the first Lease Year, which shall commence on the Commencement Date and
shall have a term longer than twelve (12) months.
"Loan" means the loan from Tenant to Landlord to finance the acquisition of
the Land and the Building and the renovation of the Building, which Loan shall
be evidenced by the Loan Documents.
"Loan Documents" means the loan documents evidencing and/or securing the
Loan, which Loan Documents shall be in a form acceptable to Landlord, Tenant and
their respective counsel.
"Market Rate" means, for the time period in question, the prevailing market
rate for the renting of comparable space in office buildings in the Green Hills
market that are similar to the Building. In the event Landlord and Tenant are
unable to agree upon the amount of the "Market Rate," the amount of the "Market
Rate" shall be determined in accordance with the baseball arbitration procedures
set forth in Section 5 of the Option Agreement.
"Maximum Rate" means the greater of (a) the maximum interest rate allowable
by Tennessee law on the Effective Date, or (b) the maximum interest rate from
time to time then allowable by Tennessee law, or (c) the maximum rate allowable
by any other law found to apply to the interest rate provisions of this Lease on
the Effective Date, or (d) the maximum rate from time to time then allowable by
any other law then determined to apply to the interest rate provisions of this
Lease.
"Measurement Date" means the first day of the month immediately succeeding
the Commencement Date.
"Minimum Usage Hours" means the following hours: (a) Monday through Friday
from 7 a.m. until 6 p.m. and (b) Saturday 8 a.m. until Noon.
"notice" has the meaning set forth in Section 34.14 hereof.
"Offer" has the meaning set forth in Section 31.1 hereof.
"Office Space" means that portion of the Leased Premises more particularly
described as follows, whether the same should be more or less Rentable Square
Feet as a result of variations resulting from actual construction and completion
of the Office Space for occupancy:
-5-
Location in Building Rentable Square Feet
--------------------- --------------------
3rd Floor (full floor 33,250
- single tenant)
2nd Floor (also known as
the Lobby) (partial floor
- multi tenant - the
Retail Space is located
on the 2nd Floor/Lobby) 24,750
Ground Floor (full floor 33,250
- single tenant)
True and correct copies of the floor plans for the Office Space are attached
hereto as Exhibit D and incorporated herein by this reference.
"Operating Component" has the meaning set forth in Section 3.3(b) hereof.
"Operating Costs" shall mean all operating expenses of the Building and all
Common Areas as computed on the cash basis in accordance with generally accepted
accounting principles consistently applied and shall include all expenses, costs
and disbursements of every kind and nature that Landlord shall pay or become
obligated to pay because of or in connection with the ownership and operation of
the Building or Common Areas, including but not limited to, the following
(collectively the "Enumerated Operating Costs"):
(a) Wages, salaries, taxes, insurance and benefits directly
attributable to all employees engaged in operating, maintaining or
providing security for the Building or Common Areas and to personnel who
may provide traffic control relating to ingress and egress between the
parking areas and adjacent public streets.
(b) Amortization of the cost of installation of capital investment
items over the useful life of such items, which capital investments are
primarily for the purpose of reducing Operating Costs; provided, however,
the amount of such amortization included in Operating Costs during any
Lease Year shall not exceed the amount by which Operating Costs were
reduced during such Lease Year as a result of the installation of such
capital investment items.
(c) Legal consultants', appraisers' and auditing fees incurred in
connection with an appeal for reduction of taxes or for other management
purposes directly incurred in the operation of the Building and all Common
Areas.
-6-
(d) Repairs and general maintenance of the Building and Common Areas
as required by Section 6.1 hereof (including all supplies and materials
used in the operation and maintenance of the Building and Common Areas but
excluding repairs and general maintenance paid by proceeds of insurance or
by Tenant or other third parties).
(e) Janitorial and security for the Building and Common Areas, the
sidewalks and common areas appurtenant to the Building and the equipment
therein.
(f) Insurance Costs.
(g) Tax Costs.
(h) Parking Facility Costs.
(i) Fees paid by Landlord for management of the Building and the
Common Areas, not to exceed $.40 per Rentable Square Foot of space in the
Building per annum.
(j) Service contracts regarding sweeping, landscaping, window cleaning
and other similar services in connection with the Building and Common
Areas.
Notwithstanding the foregoing, in no event shall the following be included in
the definition of "Operating Costs":
(i) Payments of principal and interest on notes and other indebtedness
incurred by Landlord in connection with its ownership and/or operation of
the Building, except as otherwise listed above as an Enumerated Operating
Cost.
(ii) Capital investment items related to the renovation of the shell
of the Building and Common Areas and replacements thereof.
(iii) Any other capital investment items, regardless of whether or not
required by governmental authority by the passage of new Laws, except as
otherwise listed above as an Enumerated Operating Cost.
(iv) Costs specially billed to specific tenants of the Building.
(v) The cost of alterations to space in the Building leased or to be
leased to tenants other than the Tenant.
(vi) Any federal, state or city income, excess profit, gift, estate,
succession, inheritance, franchise and transfer taxes or any other taxes
relating to the operation of Landlord's business but not the Building or
Land.
-7-
(vii) Utility Costs.
"Option Agreement" has the meaning set forth in Section 32.1 hereof.
"Parking Facility" has the meaning set forth in Section 11.1 hereof.
"Parking Facility Costs" means the costs incurred by Landlord in connection
with the Parking Facility as set forth in the Easement Agreement but excluding
Utility Costs attributable to the Parking Facility.
"Payment Period" has the meaning set forth in Section 3.6 hereof.
"Permitted Capacity" has the meaning set forth in Section 5.3 hereof.
"Permitted Increase" means the lesser of three percent (3%) or the CPI
Adjustment.
"Prime Rate means the prime commercial lending rate as quoted in The Wall
Street Journal (or similar publication if The Wall Street Journal is no longer
published) in Money Rates as the prime rate on corporate loans at large United
States money center commercial banks. The Prime Rate shall be adjusted on the
date such prime rate changes.
"Property" has the meaning set forth in Section 15.5 hereof.
"Real Estate Contract" has the meaning set forth in the Recitals.
"Reduction Event" has the meaning set forth in Section 3.6 hereof.
"Reletting Terms" has the meaning set forth in Section 3.6 hereof.
"Remaining Operating Base Rent Adjustment" has the meaning set forth in
Section 3.3(d) hereof.
"Remaining Operating Component" has the meaning set forth in Section 3.3(b)
hereof.
"Remaining Operating Costs" means the Operating Costs for the Lease Year in
question minus the TIP Costs for the Lease Year in question.
"Remaining Operating Excess" means the excess of Remaining Operating Costs
for the Lease Year in question over the Remaining
-8-
Operating Component; provided, however, that in no event shall the Remaining
Operating Excess for the Lease Year in question exceed the product of the
applicable Remaining Operating Sum multiplied by the Permitted Increase.
"Remaining Operating Sum" means the sum of (a) the Remaining Operating
Component, and (b) the sum of the Remaining Operating Excesses for all Lease
Years prior to the Lease Year in question.
"Remaining Space" has the meaning set forth in Section 31.1 hereof.
"Renewal Term" has the meaning set forth in Section 30.1 hereof.
"Rent" has the meaning set forth in Section 3.5 hereof.
"Rentable Square Feet" means the rentable area or areas of space within the
Building.
"Retail Space" means that certain area of space located on the Second Floor
or Lobby of the Building and containing approximately 6,000 Rentable Square
Feet, which Retail Space is more particularly shown on Exhibit E attached hereto
and incorporated herein by this reference.
"Revised Punchlist" has the meaning set forth in Section 4.3 hereof.
"Right of Expansion" has the meaning set forth in Section 31.2(b) hereof.
"Shell Completion Date" has the meaning set forth in Section 4.3 hereof.
"Stairs" has the meaning set forth in Section 4.5 hereof.
"Storage Rent" has the meaning set forth in Section 3.2 hereof.
"Storage Space" means 11,000 Rentable Square Feet of space to be located in
the basement of the Building and more particularly described on Exhibit F
attached hereto and incorporated herein by this reference.
"Target Date" has the meaning set forth in Section 2.2 hereof.
"Tax Costs" means costs for taxes, assessments and governmental charges
attributable to the Building and all Common Areas.
-9-
"Temporary Parking Agreement" has the meaning set forth in Section 11.1
hereof.
"Tenant's HVAC System" means that certain HVAC system that Tenant may
install to service a portion of the Office Space; provided that Tenant shall be
solely liable for the installation, servicing and operation costs thereof,
including without limitation the monthly utility costs associated therewith.
"Tenant's Plan Revisions" has the meaning set forth in Section 4.1 hereof.
"Tenant's Pro-Rata Share" is 70.5%.
"Tenant's Punchlist" has the meaning set forth in Section 4.3 hereof.
"Tenant Work" has the meaning set forth in Section 4.2 hereof.
"Tenant Work Fund" has the meaning set forth in Section 4.4 hereof.
"Termination Period" has the meaning set forth in Section 2.2 hereof.
"TIP Base Rent Adjustment" has the meaning set forth in Section 3.3(c)
hereof.
"TIP Component" has the meaning set forth in Section 3.3(b) hereof.
"TIP Costs" means collectively the Tax Costs, Insurance Costs and Parking
Facility Costs for any Lease Year in question.
"TIP Excess" means the excess of TIP Costs for the Lease Year in question
over the TIP Component.
"Trustee" has the meaning set forth in Section 19.2(a) hereof.
"Unavoidable Delays" means delays due to labor disputes, lockouts, acts of
God, enemy action, civil commotion, any pending or actual action or ruling by a
court or administrative body prohibiting either party hereto from performing in
accordance with the terms hereof, riot, governmental regulations not in effect
at the date of execution of this Lease, conditions that could not have been
reasonably foreseen by the claiming party, inability to obtain construction
materials or energy, fire, unavoidable casualty or delays caused by arbitration
(unless the arbitration was unreasonably requested by the claiming party),
provided such matters are beyond the reasonable control of the party claiming
such delay.
-10-
"Utility Adjustment" is calculated for each Utility Component having a
Utility Rate Change during the Lease Year in question and is calculated by
multiplying the applicable Utility Rate Change by the then existing Weighted
Amount for the applicable Utility Component.
"Utility Base Rent Adjustment" has the meaning set forth in Section 3.3(a)
hereof.
"Utility Component" means each type of cost forming a part of the Utility
Costs, so that as used herein the following are each examples of an individual
Utility Component: electrical costs, gas costs, water costs and sewer costs are
each a separate Utility Component.
"Utility Costs" means (a) Landlord's share of the costs for utilities for
the Parking Facility as set forth in the Easement Agreement, and (b) the costs
for utilities for the Building, including without limitation the cost of
providing electricity, gas, water, sewer and heating and cooling as a result of
operating the HVAC system serving the Building, but excluding any costs
associated with Tenant's HVAC System or the HVAC system serving the Retail
Space.
"Utility Credit" means Sixty Four Thousand Two Hundred and No/100 Dollars
($64,200.00) for the first Lease Year, as such Utility Credit shall be adjusted
each Lease Year commencing with the second Lease Year and each Lease Year
thereafter during the Lease Term by multiplying the Utility Credit for the
immediately preceding Lease Year by an amount equal to one (1) plus the sum of
the Utility Adjustments, if any, for the Lease Year in question.
"Utility Rate Change" means for any individual Utility Component, a rate
increase or decrease, as applicable, weighted for the number of months that such
increase or decrease was in effect, for such Utility Component as announced by
the provider of such Utility Component during the Lease Year in question.
"Utility Statement" has the meaning set forth in Section 3.3(a) hereof.
"Violation" has the meaning set forth in Section 2.2 hereof.
"Weighted Amount" means for each Utility Component that has experienced a
Utility Rate Change during the Lease Year in question, the Utility Costs from
the prior Lease Year for the applicable Utility Component divided by the total
Utility Costs for the prior Lease Year.
1.02 The words "hereof," "herein," "hereunder," and words of similar
import, when used in this Lease, shall refer to this Lease as a whole and not to
any particular provision of this Lease. Words
-11-
importing a particular gender mean and include every other gender, and words
importing the singular number mean and include the plural number, and vice
versa, as the concept shall require.
ARTICLE II
LEASE TERM
2.1 Subject to and upon the terms, provisions and conditions herein
set forth, Landlord does hereby lease to Tenant and Tenant does hereby lease
from Landlord the Leased Premises. The term of the Lease shall commence on the
Commencement Date, as determined pursuant to Section 2.2 hereof (the
"Commencement Date"). The term of this Lease shall be for ten (10) years;
provided, however, if the Commencement Date is not the first day of a month,
then the term of the Lease shall be ten (10) years plus the partial month in
which the Commencement Date occurs unless earlier terminated in accordance with
the terms of this Lease (the "Lease Term"). In addition, the Lease Term shall
include any and all renewals and extensions of the Lease Term.
2.2 The Commencement Date shall be the earlier of (a) the date Tenant
commences occupancy of the Office Space for the operation of its business
operations, or (b) the later of (i) sixty (60) days after Shell Completion Date,
or (ii) one hundred twenty (120) days after the date on which Landlord acquires
fee simple title to the Land and the Building pursuant to the Real Estate
Contract; provided, however that in the event Tenant is unable to obtain a
certificate of occupancy for the Leased Premises solely because the Property
(OTHER THAN THE LEASED PREMISES) fails to comply with the Metropolitan Codes of
Law of Nashville and Davidson County, Tennessee (the "Violation"), the
Commencement Date shall be extended to the earlier of (A) the date that the
Violation is remedied, or (B) the date that a waiver or variance of the
Violation is obtained from the appropriate governmental authority.
Notwithstanding the foregoing, in the event the Commencement Date does not occur
on or before January 1, 1998 (the "Target Date"), Tenant shall have the right to
terminate this Lease by providing written notice to Landlord of such termination
within the ten (10) day period following the Target Date (the "Termination
Period"), provided that if Tenant fails to provide such notice during the
Termination Period, Tenant shall be deemed to have waived its right to terminate
this Lease as set forth in this Section 2.2.
ARTICLE III
RENT
3.1 During the first Lease Year, Tenant shall pay to Landlord for the
Office Space annual base rent in an amount equal to Seven Hundred Twenty Five
Thousand and No/100 Dollars ($725,000) and for EACH Lease Year beginning with
the second Lease Year and ending
-12-
with the tenth Lease Year, Tenant shall pay to Landlord for the Office Space
annual base rent in an amount equal to Nine Hundred Seven Thousand Eight Hundred
Seventy Five and No/100 Dollars ($907,875.00) ("Base Rent"). Base Rent shall be
due and payable in twelve (12) equal monthly installments in advance on the
first day of each calendar month during the Lease Term; provided, however, if
the Commencement Date occurs on any day other than the first day of a month,
then the first payment of Base Rent shall be due and payable on the first day of
the first full calendar month occurring after the Commencement Date, and at the
same time as Tenant pays such first payment of Base Rent, Tenant also shall pay
to Landlord pro-rata Base Rent on a per diem basis for the number of days of the
Lease Term occurring in the month in which the Commencement Date occurs.
Notwithstanding the foregoing, on the Adjustment Date, monthly Base Rent shall
be reduced by an amount equal to the amount by which Seventy Seven Thousand
Seven Hundred Fifty One and No/100 Dollars ($77,751.00) exceeds the amount of
the first regularly scheduled monthly payment of principal and interest (as
opposed to any interest payment only) payable by Landlord to Tenant in
connection with the Loan. Furthermore, on the first day of any month in which
the amount of regularly scheduled monthly payments of principal and interest
owed by Landlord to Tenant in connection with the Loan are reduced in accordance
with the terms of the Loan Documents, the amount of monthly Base Rent shall be
reduced accordingly on a dollar for dollar basis with such reduction in the
monthly payments in connection with the Loan.
3.2 During each Lease Year, Tenant shall pay to Landlord for the
Storage Space annual base rent in an amount equal to Thirty Three Thousand and
No/100 Dollars ($33,000.00) ("Storage Rent"). Storage Rent shall be due and
payable in twelve (12) equal monthly installments in advance on the first day of
each calendar month during the Lease Term.
3.3 In addition to the payment of Base Rent and Storage Rent, Tenant
shall pay to Landlord the Base Rent Adjustment, which shall be calculated and
paid as follows:
(a) As Additional Rent commencing with the first Lease Year and
continuing during each Lease Year thereafter during the Lease Term, Tenant
shall pay Landlord an amount equal to the Utility Costs as adjusted
pursuant to this Section 3.3(a) (the "Utility Base Rent Adjustment").
Tenant shall pay to Landlord on the same day the Base Rent is due and
payable an amount estimated by Landlord to be Tenant's monthly Utility
Costs, as adjusted pursuant to this Section 3.3(a) (the "Estimated Utility
Costs"), which Estimated Utility Costs shall be estimated by Landlord in
good faith. Within ten (10) Business Days of the end of each month during
the Lease Term, Landlord shall deliver an accounting to Tenant of the
actual Utility Costs as adjusted pursuant to this Section 3.3(a) (each a
"Utility Statement"). Tenant shall receive a credit
-13-
against the monthly Utility Costs owed to Landlord in an amount equal to
(i) the Additional Tenant's HVAC Payments due and payable to Landlord for
the month in question, which amounts shall be reflected in each month's
Utility Statement, and (ii) the then existing Utility Credit divided by
twelve (12), whether or not such amount is actually received and collected
by Landlord, which amount shall be reflected in each month's Utility
Statement.
(b) Tenant's Base Rent includes a Lease Year component applicable to
Operating Costs equal to Three Hundred Fifty Five Thousand Eight Hundred
Seventy Five and No/100 Dollars ($355,875.00) (the "Operating Component").
The Operating Component allocable to Tax Costs, Insurance Costs and Parking
Facility Costs is broken down as follows:
Tax Costs $123,187.50
Insurance Costs $ 18,250.00
Parking Facility Costs $ 13,687.50
-----------
Total $155,125.00 (the "TIP Component")
The part of the Operating Component other than the TIP Component shall be
referred to herein as the "Remaining Operating Component."
(c) As Additional Rent commencing with the second Lease Year and
continuing during each Lease Year thereafter during the Lease Term, Tenant
shall pay Landlord an amount equal to the TIP Excess multiplied by Tenant's
Pro-Rata Share (the "TIP Base Rent Adjustment"). Each Lease Year during the
Lease Term beginning with the second Lease Year, Landlord may estimate the
TIP Base Rent Adjustment (the "Estimated TIP Base Rent Adjustment"), which
Estimated TIP Base Rent Adjustment shall be estimated by Landlord in good
faith. Thereafter, Landlord shall notify Tenant of such Estimated TIP Base
Rent Adjustment. Said Estimated TIP Base Rent Adjustment shall be divided
by twelve (12) and the quotient paid to Landlord monthly together with Base
Rent on the same day the Base Rent is due and payable.
(d) As Additional Rent commencing with the second Lease Year and
continuing during each Lease Year thereafter during the Lease Term, Tenant
shall pay Landlord an amount equal to the Remaining Operating Excess
multiplied by Tenant's Pro-Rata Share (the "Remaining Operating Base Rent
Adjustment"). Each Lease Year during the Lease Term beginning with the
second Lease Year, Landlord may estimate the Remaining Operating Base Rent
Adjustment (the "Estimated Remaining Operating Base Rent Adjustment"),
which Estimated Remaining Operating Base Rent Adjustment shall be estimated
by Landlord in good faith. Thereafter, Landlord shall notify Tenant of such
Estimated
-14-
Remaining Operating Base Rent Adjustment. Said Estimated Remaining
Operating Base Rent Adjustment shall be divided by twelve (12) and the
quotient paid to Landlord monthly together with the Base Rent on the same
day the Base Rent is due and payable.
(e) Within one hundred fifty (150) days or as soon thereafter as may
be reasonably practicable after the conclusion of each Lease Year, Landlord
shall furnish to Tenant a certificate (each an "Annual Certificate"), which
Annual Certificate shall describe for the Lease Year in question (i) the
Additional Tenant's HVAC Payments due and payable to Landlord, (ii) the
actual amount of the Utility Credit, (iii) the actual amount of each of the
Utility Costs, the TIP Costs and the Remaining Operating Costs, (iv) the
actual amount of each of the Utility Base Rent Adjustment, the TIP Base
Rent Adjustment and the Remaining Operating Base Rent Adjustment (the sum
of the actual Utility Base Rent Adjustment plus the actual TIP Base Rent
Adjustment plus the actual Remaining Operating Base Rent Adjustment for the
Lease Year in question shall be referred to herein collectively as the
"Actual Adjustment Amount"), and (v) the amount of each of the Estimated
Utility Costs, the Estimated TIP Base Rent Adjustment and the Estimated
Remaining Operating Base Rent Adjustment paid by Tenant (the sum of the
Estimated Utility Costs plus the Estimated TIP Base Rent Adjustment plus
the Estimated Remaining Operating Base Rent Adjustment paid by Tenant for
the Lease Year in question shall be referred to herein collectively as the
"Estimated Adjustment Payment"). If the Actual Adjustment Amount for the
Lease Year in question exceeds the Estimated Adjustment Payment for the
Lease Year in question, then Tenant shall pay such excess to Landlord
within thirty (30) days after the delivery of such Annual Certificate. If
the Estimated Adjustment Payment exceeds the Actual Adjustment Amount for
the Lease Year in question, a credit shall be given by Landlord to Tenant
against future Estimated Adjustment Payments as they become due in an
amount equal to such excess, or if such Annual Certificate is delivered in
connection with the last Lease Year of the Lease Term, then Landlord shall
pay such excess to Tenant within thirty (30) days after the delivery of
such Annual Certificate to Tenant. For a ninety (90) day period following
the delivery of each Annual Certificate, (A) Landlord shall afford Tenant
reasonable access to Landlord's books and records with respect to the
information set forth in such Annual Certificate to enable Tenant to verify
the amounts set forth in such Annual Certificate, and (B) Tenant, at its
own expense except as provided hereinbelow, shall have the right to audit
or cause to be audited by its accountants or other authorized
representatives the information set forth in such Annual Certificate (the
"Investigation"). If any such Investigation correctly discloses an
inaccuracy in the information set forth
-15-
in the applicable Annual Certificate, Landlord and Tenant, as necessary,
shall pay to the other within thirty (30) days of written demand therefor
the amounts required to correctly adjust between the parties hereto the
accurate amount of Base Rent Adjustment owed by Tenant to Landlord for the
Lease Year in question. Any Investigation conducted hereunder will be
conducted during normal business hours and will not unreasonably interfere
with normal business operations of Landlord. No such Investigation shall be
commenced by Tenant more than ninety (90) days after the Annual Certificate
for such Lease Year is received by Tenant. If any such Investigation
discloses that Tenant has overpaid the Base Rent Adjustment to which such
Investigation relates by more than five percent (5%), Landlord shall pay to
Tenant the costs of the Investigation incurred by Tenant. Any proprietary
or confidential information obtained by Tenant pursuant to the provisions
of this Section 3.3(e) shall be treated as confidential. The rights and
obligations set forth in this Section 3.3(e) shall survive the expiration
of the Lease Term.
3.4 Landlord shall provide in each Additional Lease that the applicable
tenant shall pay Landlord additional rent thereunder (each an "Additional
Tenant's HVAC Payment") if such tenant requests that Landlord provide, and
Landlord provides, heating and cooling services at times in excess of those
times such services are being provided pursuant to Section 5.1(a) hereof. Each
Additional Tenant's HVAC Payment shall be calculated as follows: (the HVAC Rate)
X (the number of hours the heating and cooling services are provided in excess
of those times such services are being provided pursuant to Section 5.1(a)
hereof) = the applicable Additional Tenant's HVAC Payment.
3.5 In addition, Tenant shall pay as additional rent all such other sums
of money as shall become due from and payable by Tenant to Landlord under this
Lease ("Additional Rent") (the Base Rent, Storage Rent, Base Rent Adjustment and
Additional Rent shall be referred to herein collectively as the "Rent"). Tenant
shall pay to Landlord any sales, use or other tax (excepting income tax) that
may be levied upon this Lease or the Rent payable by Tenant, notwithstanding the
fact that a statute, ordinance or enactment imposing the same may endeavor to
impose such tax upon Landlord. All Rent shall be paid without demand, notice,
reduction, setoff or any defense, and, if not paid when due, shall bear interest
at the Default Rate from the date due until paid. In addition, Tenant shall pay
to Landlord all reasonable costs of collection of the sums due hereunder,
including reasonable attorneys' fees. In the event the Commencement Date occurs
on other than the first day of a calendar month or the Lease Term terminates on
other than the last day of a calendar month, then the Rent allocable to such
month or months shall be prorated.
-16-
3.6 At any time after the second Lease Year, in the event (a) the number
of Tenant's employees working at the Leased Premises falls below three hundred
(300) (each a "Reduction Event"), (b) a tenant of the Retail Space experiences a
reduction in gross revenues of fifty percent (50%) or more following the
occurrence of a Reduction Event (each a "Defaulting Retail Tenant"), (c) the
Defaulting Retail Tenant vacates its Retail Space (each "Abandoned
Retail Space") prior to the expiration of the term of its Additional Lease and
quits paying rent thereunder, and (d) during the six (6) month period commencing
on the date that the Defaulting Retail Tenant vacates the Abandoned Retail
Space, Landlord has not relet the Abandoned Retail Space, then, Tenant shall pay
to Landlord as Additional Rent hereunder an amount equal to the rent payable
under the Additional Lease for the Abandoned Retail Space at the times and rates
set forth in the Additional Lease for the Abandoned Retail Space, commencing six
(6) months after the date the Abandoned Retail Space is vacated and the tenant
thereof quits paying rent and continuing thereafter until the earlier to occur
of (i) twelve (12) months commencing on the date that the Defaulting Retail
Tenant vacates the Abandoned Retail Space and the tenant thereof quits paying
rent, or (ii) Landlord's entering into a lease for the Abandoned Retail Space
(the "Payment Period"). Landlord shall use reasonable good faith efforts to
enter into a lease with acceptable tenants for any such Abandoned Retail Space.
Landlord shall not be obligated to relet the Abandoned Retail Space unless such
reletting is upon economic terms comparable to those set forth in the Additional
Lease for such Abandoned Retail Space, taking into account customary start-up
expenses incurred by landlords in connection with the execution of new leases
(the "Reletting Terms"). Notwithstanding the foregoing and in addition to any
other amount owed by Tenant to Landlord pursuant to this Section 3.6, if
Landlord enters into a lease for Abandoned Retail Space pursuant to terms that
are inferior to the Reletting Terms, Tenant shall pay to Landlord during the
Payment Period the amount necessary to ensure that Landlord receives the amount
that Landlord would have received during the Payment Period had Landlord entered
into a lease for such Abandoned Retail Space upon terms comparable to the
Reletting Terms.
ARTICLE IV
RENOVATION OF THE SHELL OF THE BUILDING BY LANDLORD AND
TENANT IMPROVEMENTS TO THE LEASED PREMISES BY TENANT
4.1 Landlord agrees to furnish Tenant with plans and specifications for
the renovation of the shell of the Building and interior Common Areas thereof
("Building Plans") on or before April 15, 1997. Within ten (10) Business Days of
Tenant's receipt of the Building Plans, Tenant shall notify Landlord in writing
of Tenant's approval of the Building Plans or any suggested revisions to be
incorporated in the Building Plans ("Tenant's Plan Revisions"). Landlord shall
incorporate all of Tenant's Plan
-17-
Revisions into the Building Plans as long as such Tenant's Plan Revisions are in
compliance with (a) the Budget and (b) all applicable Laws. Tenant's failure to
respond to Landlord within said ten (10) Business Days shall constitute Tenant's
written approval of the Building Plans.
4.2 Landlord and Tenant hereby agree that Tenant shall have the right to
(a) replace carpets, install Tenant's HVAC System, and paint and refinish the
interior of the Building in a manner that is in keeping with general office
usage without Landlord's prior written consent, and (b) make such other interior
alterations and improvements as Landlord shall approve in writing, which
approval shall not be unreasonably delayed or withheld (the "Tenant Work");
provided that such Tenant Work shall not affect the structural components of the
Building or the Building systems and shall be completed in accordance with all
applicable Laws.
4.3 After receipt and approval of the Building Plans as revised by
Tenant's Plan Revisions, Landlord will cause the shell of the Building together
with the interior Common Areas thereof to be renovated in accordance therewith.
Tenant and its employees, agents, representatives and contractors shall be
granted access to the Building and the Leased Premises for the purpose of
performing the Tenant Work. The shell of the Building together with the interior
Common Areas thereof shall be deemed to be completed in accordance with the
Building Plans as revised by Tenant's Plan Revisions upon the issuance by the
Contractor and the Architect of a certificate of substantial completion in
accordance with the AIA form G704 (the "Shell Completion Date"). At any time
after the Shell Completion Date, Tenant shall have the right to inspect the
shell of the Building together with the interior common areas thereof and
deliver to Landlord a punchlist of items that Tenant believes fail to comply
with the Building Plans as revised by Tenant's Plan Revisions ("Tenant's
Punchlist"). In the event Landlord disagrees with any items on Tenant's
Punchlist, the Contractor and Architect shall review such disputed items and
jointly issue a revised punchlist containing those items that the Contractor and
Architect determine fail to comply with the Building Plans as revised by the
Tenant's Plan Revisions (the "Revised Punchlist"), which Revised Punchlist shall
be binding on Landlord and Tenant. Landlord shall make the repairs and
renovations required by the Revised Punchlist on or before the Commencement
Date. In the event Landlord fails to make all of the repairs and renovations
required by the Revised Punchlist by the Commencement Date and Tenant gives
Landlord written notice and same and Landlord fails to make such repairs and
renovations as required by the Revised Punchlist within thirty (30) days of
Landlord's receipt of such notice, then Tenant shall have the right to correct
and repair such items and Landlord shall reimburse Tenant for such work within
thirty (30) days of Tenant's written demand for same from Landlord.
-18-
4.4 Landlord shall pay to Tenant Two Million Six Hundred Fifty Thousand and
No/100 Dollars ($2,650,000.00) (the "Tenant Work Fund") to apply toward
completion of the construction of the Tenant Work. Whenever Tenant desires to
request a withdrawal from the Tenant Work Fund, the chief financial officer of
Tenant shall deliver to Landlord (a) a written request that Landlord withdraw
from the Tenant Work Fund a stated amount, and (b) invoices for which Tenant is
seeking payment in the amount of such stated amount. Landlord shall disburse
funds from the Tenant Work Fund within ten (10) Business Days of Tenant's
submission of a request for withdrawal as described in this Section 4.4. Any
costs incurred to complete the Tenant Work in excess of the Tenant Work Fund
shall be paid solely by Tenant and Landlord shall have no responsibility for any
such costs. At the end of the first Lease Year, Tenant may withdraw the balance
of the Tenant Work Fund and at that time Tenant must certify to Landlord that
such Tenant Work Fund will be used to fund Tenant Work or will be returned to
Landlord to be applied as a prepayment to the Loan on or before the end of the
second Lease Year. Landlord agrees to prepay the Loan with any such funds
promptly upon Landlord's receipt of same.
4.5 Tenant has advised Landlord that as part of the Tenant Work, Tenant
intends to construct between one or more floors in the Office Space staircase(s)
connecting the floor(s) in the Office Space (the "Stairs"). At the expiration or
earlier termination of the Lease Term, Landlord shall have the right, at
Tenant's sole expense, to remove the Stairs and return the Leased Premises to
the condition as it would have existed had the Stairs not been installed as part
of the Tenant Work, or to require Tenant to do the same upon demand by Landlord.
ARTICLE V
BUILDING SERVICES
5.1 Provided an Event of Default has not occurred or has occurred but is
not continuing hereunder, Landlord shall furnish to Tenant, except as noted
below, the following building services to the extent reasonably necessary for
Tenant's comfortable use and occupancy of the Leased Premises for general office
use or as may be required by Law or directed by governmental authority:
(a) Heating, ventilation and air-conditioning twenty four (24) hours a
day, seven (7) days a week, provided that such service shall not be
provided for the twenty four (24) hours constituting New Years Day,
Memorial Day, the Fourth of July, Labor Day, Thanksgiving Day, the Friday
immediately following Thanksgiving Day, Christmas Eve and Christmas Day or
for any other time period requested in writing by Tenant as long as such
other time period does not result in such services not being provided
during the Minimum Usage Hours.
-19-
(b) Electric service in an amount at least equal to the Permitted
Capacity.
(c) Water and sewer.
(d) Elevator service.
(e) Cleaning and janitorial service on each Business Day.
(f) Washing of windows at intervals reasonably established by
Landlord, but not less than two (2) times per year.
(g) Replacement of all lamps, bulbs, starters and ballasts as required
from time to time as a result of normal usage, within two (2) days notice
from Tenant.
(h) Cleaning and maintenance of the Common Areas, including the
removal of rubbish and snow.
(i) Repair and maintenance to the extent specified elsewhere in this
Lease.
5.2 If Tenant requests any other building services in addition to those
identified above or any of the above building services in frequency, scope,
quality or quantity substantially greater than those that are required by other
tenants in the Building for general office use, the Landlord shall use
reasonable efforts to attempt to furnish Tenant with such additional building
services. In the event Landlord is able to and does furnish additional building
services, the direct cost thereof shall be determined by Landlord, exercising
its reasonable business judgment, and shall be borne by Tenant, who shall
reimburse Landlord monthly for the same as Additional Rent at the same time Base
Rent is due.
5.3 Without Landlord's prior written consent, Tenant's use of electric
current in the Leased Premises shall not exceed the capacity of the feeders to
the Building and the risers and wiring installations in existence on the
Effective Date (the "Permitted Capacity"). If Landlord determines that Tenant's
electrical usage exceeds the Permitted Capacity or otherwise exceeds the
designed load capacity of the Building's electrical system or is in any way
incompatible therewith, then Landlord shall have the right, as a condition to
granting its consent, to make such modifications to the electrical system or
other parts of the Building or Leased Premises, or to require Tenant to make
such modifications to the equipment to be installed or connected, as Landlord
considers to be reasonably necessary. The cost of any such modifications shall
be borne by Tenant, who shall reimburse Landlord for the same (or any portion
thereof paid by Landlord) within thirty (30) days after
-20-
receipt of a written demand by Landlord, provided that Landlord first obtains
Tenant's approval for such expenditures.
5.4 Tenant understands, acknowledges and agrees that any one or more of the
building services identified in this Article V may be interrupted by reason of
accident, emergency or other causes beyond Landlord's control, or may be
discontinued or diminished temporarily by Landlord or other persons to
effectuate repairs and/or alterations thereto, and that any such interruption
shall not be deemed an eviction or disturbance of Tenant's right to possession,
occupancy and use of the Leased Premises otherwise, or relieve Tenant from the
obligation to perform its covenants under this Lease. Landlord agrees to provide
Tenant with at least 24 hours written notice of any anticipated interruptions in
the services identified in Section 5.1 hereof. Notwithstanding the foregoing
provisions of this Section 5.4, any interruption of electrical current to
effectuate anticipated REPAIRS AND/OR ALTERATIONS described in this Section 5.4
(but not matters of an emergency nature) shall only occur between the hours of
7:00 p.m. and 9:00 a.m. Monday night through Saturday morning and between the
hours of 1:00 p.m. and 9:00 a.m. Saturday afternoon through Monday morning.
ARTICLE VI
MAINTENANCE AND REPAIRS
6.1 Except as otherwise provided in this Lease, Landlord shall not be
required to make any improvements to or repairs of any kind or character in the
Building or Common Areas during the Lease Term, except that Landlord shall keep
and maintain in good and clean order, condition and state of repair (a) the
structural portions of the Building (including, without limitation, the roof,
walls, floors and other structural components of the Building), (b) the
plumbing, heating, air conditioning and electrical systems servicing the entire
Building and (c) the Common Area facilities provided by Landlord under the
provisions hereof, including without limitation the removal of snow and ice
therefrom in a manner that is reasonable under the circumstances; provided,
however, Landlord's obligation to make such repairs shall not relieve Tenant of
the obligation to pay all sums that become due under this Lease except as
provided herein. In amplification of the foregoing and not as a limitation
thereto, Landlord shall make all repairs and replacements, whether foreseen or
unforeseen, ordinary or extraordinary, and do such other things as may be
required to maintain the Building, mechanical systems and Common Areas in the
condition required above in this Section 6.1. Tenant shall reimburse Landlord
within thirty (30) days after receipt of a written demand for payment for the
caused by the deliberate act or negligent act of Tenant or its employees, agents
or invitees not covered by insurance. In the event Landlord fails
-21-
to comply with the requirements of this Section 6.1, Tenant, after thirty (30)
days prior written notice to Landlord of its failure to comply with this Section
6.1 or such longer time as is required to complete such compliance if such
compliance cannot with diligence be completed within such thirty (30) day period
(as long as Landlord is proceeding promptly to complete such compliance and
thereafter shall prosecute the completion of such compliance with diligence and
continuity), may complete such compliance and the cost thereof, plus fifteen
percent (15%) of said costs to cover overhead with interest at the Default Rate,
shall be payable to Tenant within thirty (30) days after receipt of a written
demand for payment.
6.2 Tenant shall, at its expense, keep in good order, condition and state
of repair all portions of the Leased Premises with the exception of those to be
maintained and/or repaired by Landlord under Section 4.3 or Section 6.1 hereof.
In the event Tenant fails to comply with the requirements of this Section 6.2,
Landlord, after thirty (30) days prior written notice to Tenant of its failure
to comply with this Section 6.2 or such longer time as is required to complete
such compliance if such compliance cannot with diligence be completed within
such thirty (30) day period (as long as Tenant is proceeding promptly to
complete such compliance and thereafter shall prosecute the completion of such
compliance with diligence and continuity), may complete such compliance and the
cost thereof, plus fifteen percent (15%) of said costs to cover overhead with
interest at the Default Rate, shall be payable to Landlord as Additional Rent
within thirty (30) days after receipt of a written demand for payment.
6.3 Tenant shall, at its own cost and expense, repair or replace any
damage or injury done to the Leased Premises or the Building, caused by Tenant
or Tenant's agents, employees, invitees, movers or visitors; provided, however,
if Tenant fails to make such repairs or replacements promptly, Landlord may, at
its option after thirty (30) days prior written notice to Tenant of its failure
to comply with this Section 6.3 or such longer time as is required to complete
such compliance if such compliance cannot with diligence be completed within
such thirty (30) day period (as long as Tenant is proceeding promptly to
complete such compliance and thereafter shall prosecute the completion of such
compliance with diligence and continuity) or without such notice for matters of
an emergency nature, may complete such compliance and the cost thereof, plus
fifteen percent (15%) of said costs to cover overhead with interest at the
Default Rate, shall be payable to Landlord as Additional Rent within thirty (30)
days after receipt of a written demand for payment. In no event shall Tenant be
obligated to pay for cost and expense, repair or replace any damage or injury
done to the Leased Premises or the Building caused by Landlord, Landlord's
agents, employees, invitees, movers or visitors, or any other tenant of the
Building or such tenant's agents, employees, invitees, movers or visitors.
-22-
6.4 Tenant shall maintain all fixtures, furnishings and equipment located
in or serving the Leased Premises in clean, safe and sanitary condition, shall
take good care thereof and make all required repairs and replacements thereto.
Tenant shall not commit or allow any waste or damage to be committed on any
portion of the Leased Premises, and at the termination of this Lease, Tenant
shall deliver possession of the Leased Premises to Landlord in as good
condition as at date of possession by Tenant, or as the same may have been
improved during the Lease Term, ordinary wear and tear or damage resulting from
fire or other unavoidable casualty excepted.
6.5 Notwithstanding any other provision of this Lease to the contrary,
Tenant, at Tenant's expense, shall cause the Leased Premises to be in compliance
with all applicable Laws in effect on the Commencement Date. During the Lease
Term if Tenant shall make any Alteration to the Leased Premises and the making
of such Alteration necessitates that additional work be completed in order for
the Leased Premises to comply with all applicable Laws (the "Compliance Work"),
Tenant, at Tenant's expense, shall cause the Compliance Work to be complete.
Except as otherwise set forth in this Section 6.5, Landlord, at Landlord's
expense, shall cause the Building, including without limitation the Leased
Premises and the Common Areas, to be in compliance with all applicable Laws in
effect during the Lease Term.
ARTICLE VII
ALTERATIONS
7.1 Tenant will not make or permit anyone to make any alterations,
additions, improvements or other changes (collectively the "Alterations"),
structural or otherwise, in or to the Leased Premises without the prior written
consent of Landlord, except as provided in Section 7.2 hereof, which consent may
be withheld or granted in Landlord's sole and absolute discretion. Any
Alterations made by Tenant shall be made: (a) in a good, workmanlike, first-
class and prompt manner; (b) by a contractor approved in writing by Landlord and
in accordance with plans and specifications approved in writing by Landlord,
which approvals shall not be unreasonably withheld or delayed; (c) in accordance
with all applicable legal requirements and the requirements of any insurance
company insuring the Leased Premises or portion thereof; and (d) after Tenant
has obtained public liability and workmen's compensation insurance policies
approved in writing by Landlord, which approval shall not be unreasonably
withheld or delayed, which policies shall cover every person who will perform
any work with respect to such Alterations.
7.2 Notwithstanding the foregoing, Tenant shall have the right to
make Alterations without the Landlord's consent, provided such Alterations (a)
are made to the interior tenant space of the Building, (b) do not adversely
affect the structural integrity or
-23-
exterior of the Building, (c) do not affect the Common Areas of the Building,
including but not limited to the elevators and lobby, and (d) do not adversely
affect the electrical, heating or plumbing systems servicing the Building. In
the event Tenant makes any Alterations estimated to cost at least Ten Thousand
and No/100 Dollars ($10,000.00), Tenant shall provide written notice of such
Alterations to Landlord prior to commencing the installation of such
Alterations. Additionally Tenant shall comply with the provisions of Section
7.1(a) and Section 7.1(c) hereof.
7.3 If any Alterations other than those permitted by Section 7.2
hereof are made without the prior written consent or approval of Landlord,
Landlord shall have the right at Tenant's expense to remove and correct such
Alterations and restore the Leased Premises to its condition immediately prior
thereto, or to require Tenant to do the same. All Alterations to the Leased
Premises made by either party shall immediately become the property of Landlord
and shall remain upon and be surrendered with the Leased Premises as a part
thereof at the expiration or earlier termination of the Lease Term; provided,
however, that if an Event of Default has not occurred or has occurred but is not
continuing hereunder, then Tenant shall have the right to remove, prior to the
expiration or earlier termination of the Lease Term, all MOVABLE furniture,
furnishings, equipment, fixtures and Alterations installed in the Leased
Premises solely at the expense of Tenant. As consideration for Landlord not
requiring that Tenant repair any damage to the Leased Premises caused by such
removal, whether or not such removal actually occurs, Tenant shall pay to
Landlord Seven Hundred Eighty Five Thousand and No/100 Dollars ($785,000.00) on
or before the expiration of the initial ten (10) year Lease Term; provided,
however that if Tenant elects to extend the Lease Term in accordance with
Section 30.1 hereof, Tenant shall not be obligated to pay to Landlord Seven
Hundred Eighty Five Thousand and No/100 Dollars ($785,000.00) on or before the
expiration of the initial ten (10) year Lease Term, but Tenant shall then be
obligated to pay to Landlord Six Hundred Fifteen Thousand and No/100 Dollars
($615,000.00) on or before the expiration of the five (5) year Renewal Term.
Landlord and Tenant acknowledge and agree that the payment required by the
preceding sentence shall be accomplished by an offset of the amount of such
required payment against the same amount of principal owed by Landlord to Tenant
in connection with the Loan, which offset shall be effected on the date such
required payment is due and payable. If any MOVABLE furniture, furnishings,
equipment, fixtures and Alterations installed in the Leased Premises solely at
the expense of Tenant and that Landlord is permitted to remove pursuant to the
first sentence of this Section 7.3 are not removed by Tenant prior to the
expiration or earlier termination of the Lease Term, Landlord shall have the
right at Tenant's expense to remove from the Leased Premises such furniture,
furnishings, equipment, fixtures and any Alterations that Landlord designates in
writing for removal and to repair any damage to the Leased Premises caused by
such removal or to require Tenant to do
-24-
the same and Tenant shall pay to Landlord the cost of such removal and repair.
In such event, such movables will automatically become the property of Landlord
and may be disposed of by Landlord in its sole discretion, without any right of
reimbursement therefor to Tenant.
7.4 If any mechanics' or materialmen's lien (or a petition to
establish such lien) is filed against the Leased Premises or any equipment
within the Leased Premises for work claimed to have been done for, or materials
claimed to have been furnished to, the Leased Premises pursuant to Section 7.1,
Section 7.2 or Section 7.3 hereof, Tenant shall either discharge the lien within
ten (10) days thereafter, at Tenant's sole cost and expense, by the payment
thereof or file a bond acceptable to Landlord transferring the lien to the bond.
ARTICLE VIII
SIGNS AND FURNISHINGS
8.1 No sign, advertisement or notice referring to Tenant shall be
inscribed, painted, affixed or otherwise displayed on any part of the exterior
of the Building (including Tenant's windows and doors) that violates (a) any
applicable Law, or (b) the Easement Agreement. Tenant shall have the right to
install at its own expense any sign on the Building, provided that such sign and
its location (i) otherwise comply with the terms of this Section 8.1 and (ii)
have been approved by Landlord, such approval to not be unreasonably delayed or
withheld. If any exterior sign, advertisement or notice that does not conform to
the requirements set forth in the preceding sentence is exhibited or installed
by Tenant, Landlord shall have the right to remove the same at Tenant's expense.
All of Tenant's signs shall be: (a) installed after Tenant has obtained, at
Tenant's sole cost and expense, all permits, approvals and licenses required
therefor, and delivered copies thereof to Landlord, and (b) at Tenant's sole
cost and expense (unless paid from the Tenant Work Fund), installed, maintained,
repaired and replaced in a first-class manner. Landlord reserves the right to
affix, install and display signs, advertisements and notices on any part of the
exterior or interior of the Leased Premises to sell or lease the Leased Premises
during the last twelve (12) months of the Lease Term.
ARTICLE IX
INSPECTION BY LANDLORD
9.1 Landlord or its agents or representatives shall have the right to
enter into and upon any part of the Leased Premises at all reasonable hours to
inspect the same as Landlord may deem necessary or desirable upon not less than
twenty four (24) hours prior notice of such inspection or without such notice
for matters of an
-25-
emergency nature. Landlord further reserves the right to show the Leased
Premises to prospective tenants or brokers during the last twelve (12) months of
the Lease Term and to prospective purchasers or mortgagees at all reasonable
times upon not less than twenty four (24) hours prior notice of such showing.
Notwithstanding the foregoing, no inspection or showing by Landlord pursuant to
this Section 9.1 shall materially inconvenience Tenant's use and occupancy of
the Leased Premises, except as may be necessary in connection with matters of an
emergency nature. Tenant shall not be entitled to any abatement or reduction of
Rent by reason of the exercise of the foregoing rights on the part of Landlord.
ARTICLE X
COMMON AREAS
10.1 For as long as an Event of Default has not occurred or has
occurred but is not continuing, Landlord grants Tenant a non-exclusive license
to use and occupy in common with others so entitled the Common Areas.
ARTICLE XI
PARKING
11.1 Upon completion of the parking facility to be located on the
Land pursuant to the terms of the Development Agreement (the "Parking
Facility"), Tenant shall have the non-exclusive right to use the Parking
Facility at no cost to Tenant except as otherwise provided herein. During
construction of the Parking Facility, temporary parking for the Tenant and its
employees, agents, customers and invitees shall be provided pursuant to the
terms of that certain letter agreement, a copy of which is attached hereto as
Exhibit G and incorporated herein by this reference (the "Temporary Parking
Agreement"). Landlord and Tenant hereby approve the Temporary Parking Agreement
and agree that the Tenant and its employees, agents, customers and invitees
shall have the benefit of the Temporary Parking Agreement. The Parking Facility
shall have approximately 1,178 parking spaces. In addition and at no cost to
Tenant except as otherwise provided herein, Tenant shall have the right to use
all of the parking spaces in the basement of the Building and all of the visitor
spaces on the east side of the Building, subject to the terms and conditions of
the Easement Agreement. Tenant shall have the right upon written demand by
Tenant to Landlord to cause Landlord to exercise its rights under the Easement
Agreement to construct Additional Level(s) (as defined in the Easement
Agreement); provided that Tenant shall pay for all costs and expenses incurred
in connection with such construction and Tenant shall comply in all respects
with the terms and provisions of the Easement Agreement regarding the
construction and use of the Additional Levels. Tenant shall pay Landlord a
reasonable development fee in an amount to be determined by the
-26-
Landlord and Tenant at the time of the construction of each Additional Level as
compensation to Landlord for its supervision and coordination of the
construction of each Additional Level.
ARTICLE XII
PERMITTED USES
12.1 Tenant shall use and occupy the Leased Premises for general
office space and shall not use the Leased Premises for any other purpose except
with the prior written consent of Landlord; provided, however Tenant shall not
occupy or use, or permit any portion of the Leased Premises to be occupied or
used, for any business or purpose that is unlawful or deemed to be extra-
hazardous on account of fire, or permit anything to be done that would in any
way increase the rate of fire or liability or any other insurance coverage on
the Building and/or its contents, cause the load upon any floor of the Building
to exceed the load for which the floor was designed or the amount permitted by
Law, or use electrical service in the Leased Premises in an amount exceeding the
Permitted Capacity. Tenant shall further conduct its business and control its
agents, employees, invitees and visitors in such a manner as not to create any
nuisance, or interfere with, annoy or disturb any other tenant of the Building.
12.2 Landlord shall not use or permit the use of the Remaining Space
or the Retail Space for any purposes other than general office and retail
purposes.
ARTICLE XIII
LAWS
13.1 Subject to the terms of Section 6.5 hereof, Tenant shall comply
with all applicable Laws and the Easement Agreement relating to the use,
condition or occupancy of the Leased Premises and all Common Areas.
ARTICLE XIV
PEACEFUL ENJOYMENT
14.1 Landlord covenants that Tenant shall have the right to
peacefully and quietly occupy, use and enjoy the Leased Premises during the
Lease Term, subject to the other terms hereof and the exceptions to Landlord's
title set forth on Exhibit H attached hereto and incorporated herein by this
reference, provided Tenant pays the Rent and other sums herein required to be
paid by Tenant and performs all of Tenant's covenants and agreements herein
contained.
-27-
ARTICLE XV
LIMITATION OF LANDLORD'S LIABILITY
15.1 Landlord and its employees and agents shall not be liable to
Tenant, Tenant's employees, agents, assignees, subtenants, licensees,
concessionaires or to any other person or entity for any damage (including
indirect and consequential damage), injury, loss, compensation or claim,
including but not limited to claims for the interruption of or loss to Tenant's
business, based on, arising out of or resulting from any cause whatsoever
(except as otherwise provided in this Section 15.1), including but not limited
to the following: repairs to any portion of the Leased Premises that are the
obligation of Tenant; interruption in the use of the Leased Premises or any
equipment therein; any accident or damage resulting from the use or operation
(by Landlord, Tenant or any other person or entity) of the heating, cooling,
electrical, sewerage or plumbing equipment or apparatus; the termination of this
Lease by reason of the destruction of the Leased Premises; any fire, robbery,
theft, vandalism, mysterious disappearance and/or any other casualty; the
actions of any other tenants of the Leased Premises or of any other person or
entity; and any leakage in any part or portion of the Leased Premises, or from
water, rain, ice or snow that may leak into, or flow from, any part of the
Leased Premises, or from drains, pipes or plumbing fixtures in the Leased
Premises. It further is understood and agreed that any failure or inability to
furnish any services required by this Lease to be furnished by Landlord shall
not be considered an eviction, actual or constructive, of Tenant from the Leased
Premises and shall not entitle Tenant to terminate this Lease or to an abatement
of any Rent payable hereunder. Any goods, property or personal effects stored or
placed by Tenant, its employees or agents in or about the Leased Premises shall
be at the sole risk of Tenant, and Landlord shall not in any manner be held
responsible therefor. Notwithstanding the foregoing provisions of this Section
15.1, Landlord shall not be released from liability to Tenant for any physical
injury to any natural person or damage to personal property caused by the
negligence or willful misconduct of Landlord or its employees to the extent such
injury or damage is not covered by insurance (a) carried by Landlord or such
person, or (b) required by this Lease to be carried by Landlord.
15.2 Tenant shall indemnify and hold Landlord harmless from and
against all costs, damages, claims, liabilities and expenses (including
reasonable attorneys' fees) suffered by or claimed against Landlord, directly or
indirectly, based on, arising out of or resulting from (a) use and occupancy of
the Leased Premises, (b) repair or maintenance of the Leased Premises that are
the obligations of Tenant, (c) any act or omission by Tenant or Tenant's
employees, agents, assignees, subtenants, contractors, licensees or invitees, or
(d) the occurrence and/or continuation of any Event of Default.
-28-
15.3 In the event that at any time any landlord hereunder shall sell
or transfer the Leased Premises or the entirety of such landlord's interest
therein, said landlord shall not be liable to Tenant for any obligations or
liabilities based on or arising out of events or conditions occurring after the
date of such sale or transfer. Within five (5) days after the written request of
any purchaser or transferee of the Leased Premises of any landlord's
interest therein, Tenant shall attorn to such purchaser or transferee.
15.4 In the event that at any time during the Lease Term Tenant shall
have a claim against Landlord, Tenant shall not have the right to set off or
deduct the amount owed or allegedly owed to Tenant from any Rent or other sums
payable to Landlord except with respect to claims made by Tenant concerning
Landlord's failure to make timely repairs to the Leased Premises' roof and/or
structural systems, it being understood that Tenant's sole remedy for recovering
upon a claim not concerning the roof or structural systems shall be to institute
an independent action against Landlord.
15.5 Tenant agrees that in the event Tenant or any of Tenant's
employees, agents, subtenants, licensees or concessionaires is awarded a money
judgment against Landlord, the sole recourse for satisfaction of such judgment
shall be limited to execution against the estate and interest of Landlord in (a)
the Land, the Building and all other improvements located on the Land
(collectively the "Property"), (b) any insurance proceeds and/or condemnation
awards paid or payable to Landlord in connection with the Property, and (c) any
rents, profits, proceeds, revenues, income, rights or other benefits arising
from any lease, license or other agreement pertaining to all or any part of the
Property, including without limitation any Additional Leases. In no event shall
any other assets of Landlord, or of any officer, director or employee of
Landlord or of any other person or entity associated with Landlord be available
to satisfy or subject to such judgment, nor shall any officer, director or
employee of Landlord or any other person or entity be held to have any personal
liability for satisfaction of any claims or judgments against Landlord and/or
any officer, director or employee of Landlord in such person's capacity as an
officer, director or employee of Landlord.
ARTICLE XVI
DAMAGE OR DESTRUCTION
16.1 If the Leased Premises are totally or partially damaged or
destroyed from any cause, thereby rendering the Leased Premises totally or
partially inaccessible or unusable, Landlord shall diligently restore and repair
the Leased Premises to substantially the same condition it was in prior to such
damage; provided however, that if in the judgment of an independent consultant
-29-
mutually selected by Landlord and Tenant such repairs and restoration cannot be
completed within one (1) year after the occurrence of such damage or destruction
(taking into account the time needed for effecting a satisfactory settlement
with any insurance company involved, removal of debris, preparation of plans and
issuance of all required governmental permits), or if such damage or destruction
occurred within twelve (12) months prior to the expiration of the Lease Term,
then either Landlord or Tenant shall have the right to terminate this Lease by
giving written notice of termination to the other party hereto within forty five
(45) days after the occurrence of such damage or destruction. If this Lease is
terminated in accordance with the above procedure, then Base Rent and Additional
Rent payable hereunder shall be apportioned and paid to the date of said damage
or destruction. If this Lease is not terminated as a result of such damage or
destruction, then until such repair and restoration of the Leased Premises are
substantially complete, the Base Rent and Additional Rent shall be abated as to
that portion of the Leased Premises that is unsuitable for occupancy by Tenant
until such repair or restoration is completed. If this Lease is not terminated
as a result of such damage or destruction, then except as otherwise specified in
Section 16.2 hereof, Landlord shall bear the cost and expenses of such repair
and restoration of the Leased Premises; provided, however, that if such damage
or destruction was caused by the act or omission of Tenant, or any of its
employees, agents, invitees, assignees, subtenants, licensees or
concessionaires, then Tenant shall pay to Landlord the amount by which such
costs and expenses exceed the insurance proceeds, if any, actually received by
Landlord on account of such damage or destruction. Notwithstanding anything
above to the contrary, Landlord shall have the right to terminate this Lease in
the event (a) the Tenant as lender fails or refuses to make such insurance
proceeds available for such repair and restoration, or (b) zoning or other
applicable Laws do not permit such repair and restoration.
16.2 Notwithstanding anything above to the contrary, if Landlord
repairs and restores the Leased Premises as provided in Section 16.1 hereof,
Landlord shall not be required to repair, restore or replace any decorations or
Alterations to the Leased Premises previously made by Tenant unless adequate
insurance proceeds are available to pay the full costs thereof. It shall be
Tenant's sole responsibility to repair, restore or replace any trade fixtures,
furnishings, equipment or personal property belonging to Tenant to substantially
their same condition prior to such damage or destruction; provided, however,
Tenant shall not be obligated to restore or replace such items.
-30-
ARTICLE XVII
CONDEMNATION
17.1 If the whole or a substantial part (as hereinafter defined) of
the Leased Premises, or the use or occupancy of the Leased Premises, shall be
taken or condemned by any governmental or quasi-governmental authority for any
public or quasi-public use or purpose (including a sale thereof under threat of
such a taking), then either Landlord or Tenant shall have the right to terminate
this Lease by giving written notice of termination to the other party hereto on
or before the date title thereto vests in such governmental or quasi-
governmental authority, and all Rent payable hereunder shall be apportioned as
of such date. If less than a substantial part of the Leased Premises, or if the
use or occupancy of less than a substantial part of the Leased Premises, is
taken or condemned by any government or quasi-governmental authority for any
public or quasi-public use or purpose (including a sale thereof under threat of
such a taking) then this Lease shall continue in full force and effect as to the
portion of the Leased Premises not so taken or condemned, except that as of the
date title vests in the governmental or quasi-governmental authority, Tenant
shall not be required to pay Base Rent and Additional Rent with respect to the
portion of the Leased Premises taken or condemned. For purposes of this Section
17.1, a substantial part of the Leased Premises shall be considered to have been
taken if (a) more than thirty percent (30%) of the Rentable Square Feet of the
Leased Premises is rendered unusable as a result of such condemnation, or (b)
fewer than seven hundred fifty (750) parking spaces are available in the Parking
Facility as a result of such condemnation.
17.2 All awards, damages and other compensation paid by the
condemning authority on account of such taking or condemnation (or sale under
threat of such a taking) shall belong to Landlord, and Tenant hereby assigns to
Landlord all rights to such awards, damages and compensation. Tenant agrees not
to make any claim against the Landlord or the condemning authority for any
portion of such award or compensation attributable to damages to the Leased
Premises' leasehold improvements, except for expenses of leasehold improvements
paid for by Tenant or severance damages. Nothing contained herein, however,
shall prevent Tenant from pursuing a separate claim against the condemning
authority for relocation expenses, the value of furnishings, equipment and trade
fixtures installed in the Leased Premises at Tenant's expense and that Tenant is
entitled pursuant to this Lease to remove at the expiration or earlier
termination of the Lease Term, the value of the unexpired Lease Term, and loss
of profits, provided that such claim shall in no way diminish the award or
compensation payable to or recoverable by Landlord in connection with such
taking or condemnation.
-31-
ARTICLE XVIII
EVENT OF DEFAULT
18.1 The occurrence of any of the following shall constitute a default by
Tenant under this Lease:
(a) If Tenant shall fail to pay any payment of Base Rent when due.
(b) If Tenant shall fail to pay any payment of Additional Rent when
due, or shall fail to make when due any other payment required by this
Lease.
(c) If Tenant shall violate or fail to perform any term, condition,
covenant or agreement to be performed or observed by Tenant under this
Lease other than as otherwise set forth in this Section 18.1.
(d) An Event of Bankruptcy occurs as specified in Article XIX hereof
with respect to Tenant.
(e) A dissolution of Tenant or liquidation of substantially all of
Tenant's assets occurs.
The occurrence of any default described in Section 18.1(d) or Section
18.1(e) shall be an "Event of Default." The occurrence of any default described
in Section 18.1(a) or Section 18.1(b) shall be an "Event of Default" following
the passage of ten (10) days following Tenant's receipt of written notice from
Landlord of the occurrence of said default, provided such default is not cured
during such cure period. The occurrence of any other default described in this
Section 18.1 not specifically set forth in this paragraph shall be an "Event of
Default" following the passage of thirty (30) days following Tenant's receipt of
written notice from Landlord of the occurrence of said default, provided such
default is not cured during such cure period (provided that in the case of any
default described in Section 18.1 not specifically set forth in this paragraph
that cannot be cured by the payment of money and cannot with diligence be cured
within such thirty (30) day period, if Tenant shall proceed promptly to cure the
same and thereafter shall prosecute the curing of such default with diligence
and continuity, then the time within which such default may be cured shall be
extended for up to an additional sixty (60) days (for a total of ninety (90)
days)).
18.2 If any Event of Default shall occur hereunder, Landlord shall have the
right, at its sole option, to terminate this Lease. In addition, with or without
terminating this Lease, Landlord may re-enter, terminate Tenant's right of
possession as to all or any part of the Leased Premises and take possession of
the Leased Premises and the provisions of this Article XVIII shall operate as
-32-
a notice to quit, any other notice to quit or of Landlord's intention to re-
enter the Leased Premises being hereby expressly waived. If necessary, Landlord
may proceed to recover possession of the Leased Premises under and by virtue of
the Laws of the jurisdiction in which the Leased Premises are located, or by
such other proceedings, including re-entry and possession, as may be applicable.
If Landlord does not elect to terminate this Lease, Landlord also shall have the
right, at its sole option, at any time following the occurrence and during the
continuation of an Event of Default hereunder to terminate all renewal options
granted to Tenant pursuant to this Lease. If Landlord elects to terminate this
Lease and/or elects to terminate Tenant's right of possession, everything
contained in this Lease on the part of Landlord to be done and performed shall
cease without prejudice, subject, however, to the right of Landlord to recover
from Tenant all Rent and other sums accrued up to the time of termination or
recovery of possession by Landlord, whichever is later. Upon the occurrence and
during the continuation of an Event of Default hereunder, then whether or not
this Lease and/or Tenant's right of possession is terminated by reason of such
Event of Default, Landlord may relet the Leased Premises or any part thereof,
alone or together with other premises, for such term(s) (that may be greater or
less than the period that otherwise would have constituted the balance of the
Lease Term) and on such terms and conditions (that may include concessions or
free rent and alterations of the Leased Premises) as Landlord, in its sole
discretion, may determine, but Landlord shall not be liable for, nor shall
Tenant's obligations hereunder be diminished by reason of, any failure by
Landlord to relet the Leased Premises or any failure by Landlord to collect any
rent due upon such reletting. Upon the occurrence and during the continuation of
an Event of Default, then whether or not this Lease is terminated by reason of
such Event of Default, Tenant nevertheless shall remain liable for any Base
Rent, Additional Rent or damages that may be due or sustained prior to such
Event of Default, all reasonable costs, fees and expenses including, but not
limited to, reasonable attorneys' fees, reasonable brokerage fees, expenses
incurred in placing the Leased Premises in good rentable condition, and
reasonable costs and expenses incurred by Landlord in pursuit of its remedies
hereunder and in renting the Leased Premises to others from time to time. In
addition, Tenant also shall be liable for an amount equal to Base Rent and
Additional Rent that would have become due during the remainder of the Lease
Term, less the amount of rental, if any, that Landlord receives during such
period from others to whom the Leased Premises may be rented (other than any
additional rent received by Landlord as a result of any failure of such other
person to perform any of its obligations to Landlord), which shall be computed
and payable in monthly installments, in advance, on the first day of each
calendar month, following Tenant's Event of Default and continuing until the
date on which the Lease Term would have expired but for Tenant's Event of
Default. Separate suits or actions may be brought to collect any such damages
for any month(s), and such separate suits
-33-
or action shall not in any manner prejudice the right of Landlord to collect any
damages for any subsequent month(s) by similar proceedings, or Landlord may
defer any suits or actions until after the expiration of the Lease Term, in
which event Tenant hereby agrees that such suit or actions shall be deemed not
to have accrued until the expiration of the Lease Term. The provisions contained
in this Section 18.2 shall be in addition to, and shall not prevent the
enforcement of, any claim Landlord may have against Tenant for anticipatory
breach of this Lease.
18.3 All rights and remedies of Landlord set forth in this Lease are in
addition to all other rights and remedies available to Landlord at law or in
equity. All rights and remedies available to Landlord pursuant to this Lease or
at law or in equity are expressly declared to be cumulative. The exercise by
Landlord of any such right or remedy shall not prevent the concurrent or
subsequent exercise of any other right or remedy. No delay or failure by
Landlord to exercise or enforce any of Landlord's rights or remedies or Tenant's
obligations shall constitute a waiver of any such rights, remedies or
obligations. Landlord shall not be deemed to have waived any Event of Default by
Tenant unless such waiver expressly is set forth in a written instrument signed
by Landlord. If Landlord waives in writing any Event of Default by Tenant, such
waiver shall not be construed as a waiver of any covenant, condition or
agreement set forth in this Lease except as to the specific circumstances
described in such written waiver.
18.4 If Landlord shall institute proceedings against Tenant and a
compromise or settlement thereof shall be made, then the same shall not
constitute a waiver of any subsequent Event of Default of a similar nature or of
any covenant, condition or agreement set forth herein, nor of any of Landlord's
rights hereunder. Neither the payment by Tenant of a lesser amount than the
monthly installment of Base Rent, Additional Rent or of any sums due hereunder
nor any endorsement or statement on any check or letter accompanying a check for
payment of Rent or other sums payable hereunder shall be deemed an accord and
satisfaction, and Landlord may accept such check or payment without prejudice to
Landlord's right to recover the balance of such Rent or other sums or to pursue
any other remedy available to Landlord. No re-entry by Landlord, and no
acceptance by Landlord of keys from Tenant, shall be considered an acceptance of
a surrender of this Lease.
18.5 If Tenant defaults in the making of any payment to any third party,
then Landlord may, but shall not be required to, make such payment upon not less
than thirty (30) days prior written notice or without such notice for matters of
an emergency nature. Upon the occurrence of an Event of Default, then Landlord
may, but shall not be required to, remedy such Event of Default. The taking of
such action by Landlord shall not be considered as a cure of such Event of
Default by Tenant or prevent Landlord from pursuing any remedy it is otherwise
entitled to in connection with such
-34-
Event of Default. If Landlord elects to make such payment or do such act, then
all costs and expenses incurred by Landlord, plus interest thereon at the
Default Rate, from the date incurred by Landlord to the date of payment thereof
by Tenant, shall constitute Additional Rent due hereunder; provided however,
that nothing contained herein shall be construed to permit Landlord to charge or
receive interest in excess of the Maximum Rate.
18.6 If Tenant fails to make any payment of Base Rent, Additional Rent or
any other sum due hereunder on or before the date such payment is due and
payable (without regard to any grace period specified in Section 18.1 hereof),
then Tenant shall pay to Landlord a late charge of five percent (5%) of the
amount of such payment. In addition, such payment and such late fee shall bear
interest at the Default Rate from the date such payment or late fee,
respectively, became due to the date of payment hereof by Tenant; provided,
however, that nothing contained herein shall be construed as permitting Landlord
to charge or receive interest in excess of the Maximum Rate. Such late charge
and interest shall constitute Additional Rent due hereunder.
18.7 Tenant hereby expressly waives, for itself and all persons claiming
by, through, or under it, any right of redemption or for the restoration of the
operation of this Lease under any present or future Law, including without
limitation any such right that Tenant would otherwise have in case Tenant shall
be dispossessed for any cause, or in case Landlord shall obtain possession of
the Leased Premises as herein provided.
18.8 In the event Landlord fails to comply with any of the requirements of
this Lease, Tenant, after thirty (30) days prior written notice to Landlord of
its failure to comply with such terms of this Lease or such longer time as is
required to complete such compliance if such compliance cannot with diligence be
completed within such thirty (30) day period (as long as Landlord is proceeding
promptly to complete such compliance and thereafter shall prosecute the
completion of such compliance with diligence and continuity), may complete such
compliance and the cost thereof, plus fifteen percent (15%) of said costs to
cover overhead with interest at the Default Rate, shall be payable to Tenant
within thirty (30) days after receipt of a written demand for payment.
ARTICLE XIX
BANKRUPTCY
19.1 The following shall be Events of Bankruptcy under this Lease: (a)
Tenant becoming insolvent, as that term is defined in Title 11 of the United
States Code (the "Bankruptcy Code"), or under the insolvency laws of any state,
district, commonwealth or territory of the United States (the "Insolvency
Laws"); (b) the appointment of a receiver or custodian for any or all of
Tenant's
-35-
property or assets or the institution of a foreclosure action upon any of
Tenant's real or personal property; (c) Tenant's filing or consenting to a
petition under the provisions of the Bankruptcy Code or the Insolvency Laws or
in any bankruptcy, reorganization, composition, extension, arrangement or
insolvency proceeding; (d) the filing of a petition against Tenant as the
subject debtor under the Bankruptcy Code or Insolvency Laws, which is not
consented to by such subject debtor and which either (i) is not dismissed within
sixty (60) days of filing, or (ii) results in the issuance of an order for
relief against the debtor; or (e) Tenant's making or consenting to an assignment
for the benefit of creditors or a common law composition of creditors.
19.2 (a) Upon occurrence of an Event of Bankruptcy, Landlord shall have all
rights and remedies available to Landlord pursuant to Article XVIII hereof;
provided, however, that while a case in which Tenant is the subject debtor
under the Bankruptcy Code is pending, Landlord shall not exercise its
rights and remedies pursuant to Article XVIII hereof so long as both (i)
the Bankruptcy Code prohibits the exercise of such rights and remedies and
(ii) Tenant or its Trustee in Bankruptcy (the "Trustee") is in compliance
with the provisions of Section 19.2(b) and Section 19.2(c) hereof.
(b) In the event Tenant becomes the subject debtor in a case pending
under the Bankruptcy Code, Landlord's right to terminate this Lease
pursuant to Section 19.2(a) hereof shall be subject, to the extent required
by the Bankruptcy Code, to any rights of Trustee to assume or assign this
Lease pursuant to the Bankruptcy Code. Trustee shall not have the right to
assume or assign this Lease unless Trustee promptly (i) cures all Events of
Default under this Lease (ii) compensates Landlord for monetary damages
incurred as a result of such Events of Default, (iii) provides adequate
assurance of future performance (as defined in Section 19.2(c) hereof) on
the part of Tenant as debtor in possession or on the part of the assignee
of Tenant, and (iv) complies with all other requirements of the Bankruptcy
Code. Tenant agrees in advance that this Lease may be terminated by
Landlord in accordance with Section 19.2(a) hereof if the foregoing
criteria for assumption or assignment are not met, or if, after such
assumption or assignment, an Event of Default occurs hereunder.
(c) Landlord and Tenant hereby agree in advance that adequate
assurance of future performance, as used in Section 19.2(b) hereof, shall
mean that all of the following minimum criteria must be met: (i) Tenant's
gross receipts during the thirty (30) day period immediately preceding the
initiation of the case under the Bankruptcy Code must be equal to or
greater than the next monthly installment of Base Rent due under this
Lease; (ii) Both the average and median of Tenant's gross
-36-
receipts (calculated on a monthly basis) during the six (6) month period
immediately preceding the initiation of the case under the Bankruptcy Code
must be equal to or greater than the next monthly installment of Base Rent
due under this Lease; (iii) Tenant must pay its estimated pro rata share of
the cost of all services provided by Landlord (whether directly or through
agents or contractors and whether or not previously included as part of
Base Rent), in advance of the performance or provision of such services;
(iv) Trustee must agree that Tenant's business shall be conducted in a
first class manner, and that no liquidating sales, auctions or other non-
first class business operations shall be conducted on the Leased Premises;
(v) Trustee must agree that the use of the Leased Premises as stated in
this Lease will remain unchanged and that no prohibited use shall be
permitted; (vi) Trustee must agree that the assumption or assignment of
this Lease will not violate or affect the rights of other tenants in the
Leased Premises if any; (vii) Trustee must pay to Landlord at the time the
next monthly installment of Base Rent is due under this Lease, in addition
to such installment of Base Rent, an amount equal to the monthly
installments of Base Rent and Additional Rent due under this Lease for the
next two (2) months thereafter, said amount to be held by Landlord in
escrow (the "Escrow Account") until either Trustee or Tenant defaults in
its payment of Rent or other obligations under this Lease (whereupon
Landlord shall have the right to draw on the Escrow Account) or until the
expiration or earlier termination of the Lease Term (whereupon the funds
shall be returned to Trustee or Tenant); (viii) Tenant or Trustee must
agree to pay to Landlord at any time Landlord is authorized to and does
draw on the Escrow Account the amount necessary to restore the Escrow
Account to the original level required by Section 19.2(c)(vii) hereof; and
(ix) all assurances of future performance specified in the Bankruptcy Code
must be provided.
ARTICLE XX
HOLDING OVER
20.1 Provided Tenant gives written notice to Landlord of Tenant's intent
not to exercise any renewal options provided herein or negotiate a new lease for
the Leased Premises, Tenant shall have the right to hold over for a period not
exceeding one (1) year from the expiration of the Lease Term (the "Holdover
Period"). Said right shall be contingent upon Landlord receiving the aforesaid
written notice six (6) months prior to the expiration of the Lease Term, which
notice shall specify the length of the Holdover Period. If Tenant retains
possession of the Leased Premises or any part thereof after the termination of
this Lease, Tenant shall pay Rent during the Holdover Period commencing upon the
termination of the Lease Term at the then prevailing Market Rate computed on a
daily basis for each day that Tenant remains in possession. Except for
-37-
the adjusted Rent, all other terms and conditions of this Lease shall remain in
full force and effect during the Holdover Period. Upon the expiration of the
Holdover Period specified in Tenant's notice to Landlord, Tenant shall be liable
for and pay to Landlord, all damages, consequential as well as direct, sustained
by reason of Tenant's holding over beyond the Holdover Period, if any.
ARTICLE XXI
CASUALTY AND RENT LOSS INSURANCE
21.1 Landlord shall at all times during the Lease Term carry or cause to be
carried a policy of insurance that insures the Property, including the Leased
Premises, against loss or damage by fire or other casualty (namely, the perils
against which insurance is afforded by a standard "all-risk" and extended
coverage casualty insurance policy) in an amount equal to the full replacement
cost of the Property; provided, however, that Tenant shall insure against, and
Landlord shall not be responsible for and shall not be obligated to insure
against, any loss of or damage to any personal property of Tenant or that Tenant
may have in the Building or the Leased Premises or any trade fixtures installed
by or paid for by Tenant on the Leased Premises or any additional improvements
that Tenant may construct on the Leased Premises, and Landlord shall not be
liable for any loss or damage to such property, regardless of cause, including
the negligence of Landlord and its employees, agents, customers and invitees. If
any Alterations made by Tenant pursuant to Section 7.1 hereof result in an
increase in the premiums charged during the term of this Lease on the casualty
insurance carried by Landlord on the Building, then Landlord shall immediately
notify Tenant in writing, and, upon such notification, the cost of such increase
in insurance premiums shall be borne by Tenant, who shall reimburse Landlord for
the same as Additional Rent after being separately billed therefor. Said
notification shall include a statement from Landlord's insurance carrier
verifying that said increase in premiums is the direct and sole result of
Alterations made by Tenant pursuant to Section 7.1 hereof. In addition, Landlord
shall at all times during the Lease Term carry rental value or business
interruption insurance in an amount equal to twelve (12) months of Rent.
ARTICLE XXII
LIABILITY INSURANCE
22.1 Landlord shall at all times during the Lease Term maintain broad form
comprehensive general public liability insurance against claims for bodily
injury, death or property damage occurring in, on or about the parking areas,
Building or the Leased Premises in a combined single limit of not less than Five
Million and No/100 Dollars ($5,000,000.00). Such insurance shall be
-38-
effected under policies satisfactory to Landlord and Tenant that shall name
Landlord and Tenant as an additional insured thereunder.
ARTICLE XXIII
INSURANCE REQUIREMENTS
23.1 Each insurance policy referred to in Article XXI and Article XXII
hereof shall: (a) be issued by a company licensed to conduct business in the
jurisdiction in which the Leased Premises are located; (b) contain an
endorsement that such policy shall remain in full force and effect
notwithstanding the insured may have waived its right of action against any
party prior to the occurrence of a loss, and shall provide that the insurer
waives all right of recovery by way of subrogation against Landlord and Tenant,
their agents, employees and representatives in connection with any loss or
damage covered by such policy; (c) be reasonably acceptable in form and content
to Landlord and Tenant; (d) be primary and non-contributory; and (e) contain an
endorsement prohibiting cancellation, failure to renew, reduction of amount of
insurance or change in coverage without the insurer's first giving Landlord and
Tenant thirty (30) days prior written notice of such proposed action.
ARTICLE XXIV
WAIVER OF SUBROGATION
24.1 Anything in this Lease to the contrary notwithstanding, Landlord and
Tenant each hereby waive any and all rights of recovery, claim, action or cause
of action against the other, its agents, officers, or employees, for any loss or
damage that may occur to the Leased Premises, or any improvements thereto, or to
the Building, or any improvements thereto, or any personal property of such
party therein, by reason of fire, the elements, or any other cause to the extent
that such rights of recovery, claim, action or cause of action are or would be
covered by insurance required under this Lease (regardless of whether or not the
party required to carry such insurance in fact carries such insurance),
regardless of cause or origin, including negligence of the other party hereto,
its agents, officers or employees, and covenants that no insurer shall have any
right of subrogation against such other party.
ARTICLE XXV
ESTOPPEL LETTER
25.1 Tenant shall at any time, upon not less than ten (10) days' prior
written request, execute and deliver in form and substance reasonably
satisfactory to Landlord an estoppel letter certifying:
-39-
(a) The date upon which the Lease Term commences and expires;
(b) The date to which Rent has been paid;
(c) That Tenant has accepted the Leased Premises and that all
improvements have been satisfactorily completed (or if not so accepted or
completed, the matters objected to by Tenant);
(d) That the Lease is in full force and effect and has not been
modified or amended (or if modified or amended, a description of same);
(e) That there are no defaults by Landlord under the Lease nor any
existing condition with respect to which the giving of notice or lapse of
time would constitute a default or if Tenant has knowledge of any default
or any such condition, a brief description thereof;
(f) That Tenant has received no notice within the past twenty four
(24) months from any insurance company of any defects or inadequacies in
the Leased Premises;
(g) That Tenant, as tenant under this Lease, has no options or rights
other than as set forth in this Lease or any amendment thereto described in
such letter; and
(h) Such other matters that may be necessary or appropriate to qualify
Tenant's response to any of the foregoing agreements or that Landlord may
reasonably request.
If such letter is to be delivered to a purchaser of the Building, it shall
further include the agreement of Tenant to recognize such purchaser as Landlord
under this Lease, and thereafter to pay Rent to the purchaser or its designee in
accordance with the terms of this Lease. Tenant acknowledges that any purchaser
of the Building may rely upon such estoppel letter and that Landlord may incur
substantial damages by reason of any failure on the part of Tenant to provide
such letter in a timely manner.
25.2 Landlord shall at any time, upon not less than ten (10) days' prior
written request, execute and deliver in form and substance reasonably
satisfactory to Tenant an estoppel letter certifying:
(a) The date upon which the Lease Term commences and expires;
(b) The date to which Rent has been received;
-40-
(c) That Tenant has accepted the Leased Premises and that all
improvements have been satisfactorily completed (or if not so accepted or
completed, the matters objected to by Tenant);
(d) That the Lease is in full force and effect and has not been
modified or amended (or if modified or amended, a description of same);
(e) That there are no defaults by Tenant under the Lease nor any
existing condition with respect to which the giving of notice or lapse of
time would constitute a default or if Landlord has knowledge of any default
or any such condition, a brief description thereof;
(f) That Landlord has received no notice from any insurance company
within the past twenty four (24) months of any defects or inadequacies in
the Leased Premises;
(g) That Landlord, as landlord under this Lease, has no options or
rights other than as set forth in this Lease or any amendment thereto
described in such letter; and
(h) Such other matters that may be necessary or appropriate to qualify
Landlord's response to any of the foregoing agreements or that Tenant may
reasonably request.
ARTICLE XXVI
BROKERS
26.1 Tenant represents and warrants that Tenant has dealt with and only
with Landlord's broker, Xxxxx X. Xxxxx, in connection with this Lease and Tenant
hereby indemnifies and holds harmless Landlord and any broker employed by
Landlord from any claims of any other broker(s) in connection with this Lease
resulting from the actions of Tenant. Tenant hereby indemnifies and holds
harmless Landlord and any broker employed by Landlord from any claims of any
broker(s) claiming a commission in connection with any renewal, extension or any
type of option relating to this Lease resulting from the actions of Tenant.
Landlord represents and warrants that Landlord has dealt with and only with
Landlord's broker, Xxxxx X. Xxxxx, in connection with this Lease and Landlord
hereby indemnifies and holds harmless Tenant and any broker employed by Tenant
from any claims of Xxxxx X. Xxxxx and any other broker(s) in connection with
this Lease resulting from the actions of Landlord. Landlord hereby indemnifies
and holds harmless Tenant and any broker employed by Tenant from any claims of
any broker(s) claiming a commission in connection with any renewal, extension or
any type of option relating to this Lease resulting from the actions of
Landlord.
-41-
ARTICLE XXVII
ASSIGNMENT BY LANDLORD
27.1 Landlord shall have the right to transfer and assign, in whole or in
part, all its rights and obligations hereunder and in the Leased Premises. In
such event and upon such transfer, no further liability or obligation shall
accrue against the assigning Landlord from the date of such transfer.
ARTICLE XXVIII
ASSIGNMENT AND SUBLETTING
28.1 Except as specifically permitted by this Section 28.1, Tenant shall
not transfer, mortgage or otherwise encumber this Lease or all or any portion of
or any of Tenant's rights hereunder or interest herein without obtaining the
prior written consent of Landlord, which consent may be withheld or granted in
Landlord's sole and absolute discretion; provided, however, that Tenant's
assignment of this Lease to a purchaser of all or substantially all of the
assets of Tenant or to any successor to Tenant by merger shall be permitted
hereunder without the prior written consent of Landlord. Tenant shall be
permitted to assign this Lease or any portion thereof or sublet the Leased
Premises or any portion thereof without obtaining the prior written consent of
Landlord, provided that no such assignment or subletting shall be construed as a
waiver or release of PMT Services, Inc. from liability for the performance of
any covenant or obligation to be performed by Tenant under this Lease during the
Lease Term, nor shall the collection or acceptance of Rent from any assignee,
subtenant or occupant constitute a waiver or release of PMT Services, Inc. from
any of the liabilities or obligations of the Tenant under this Lease during the
Lease Term. Except as specifically permitted by this Section 28.1, no assignment
or transfer of this Lease or the right of occupancy hereunder may be effectuated
by operation of law or otherwise without the prior written consent of Landlord.
Landlord's giving of its consent under this Section 28.1 shall not be construed
as relieving Tenant or any assignee, subtenant or occupant from the obligation
of obtaining Landlord's prior written consent if subsequently required under the
terms of this Section 28.1. For any period during which an Event of Default has
occurred and is continuing, Tenant hereby assigns to Landlord the Rent due from
any assignee, subtenant, licensee, concessionaire or occupant of Tenant and
hereby authorizes each such assignee, subtenant or occupant to pay said Rent
directly to Landlord. Any attempted assignment or sublease by Tenant in
violation of the terms and covenants of this Lease shall be null and void.
-42-
ARTICLE XXIX
CONTINGENCIES
29.1 Landlord's performance under the terms of this Lease is contingent
upon (a) Landlord's and Tenant's execution of the Loan Documents and funding of
the first advance thereunder, and (b) Landlord's acquisition of fee simple title
to the Land and the Building pursuant to the Real Estate Contract.
29.2 This Lease shall terminate if Landlord has not satisfied the
contingencies set forth in Section 29.1 hereof within the sixty (60) day period
following the Effective Date.
ARTICLE XXX
RENEWAL
30.1 Tenant shall have one (1) option to renew this Lease under the same
terms and conditions as provided herein except as set forth below for a
consecutive five (5) year term (the "Renewal Term"), exercisable by providing
Landlord written notice of Tenant's intent to exercise the renewal option on or
before the later of (a) thirteen (13) months prior to the expiration date of the
then existing Lease Term, or (b) within thirty (30) days after Tenant's receipt
of written notice from Landlord stating that Tenant failed to exercise the right
to extend the Lease Term in accordance with Section 30.1(a) hereof. The terms of
this Lease during the Renewal Term shall be the same as set forth in this Lease
for the initial ten (10) year Lease Term, including without limitation the
amount of Rent payable hereunder; provided, however, that if Tenant exercises
the renewal option set forth in this Section 30.1 and Tenant does not extend the
term of the Loan so that the term of the Loan remains coterminous with the
extended Lease Term, Tenant shall pay Rent during the Renewal Term at the then
prevailing Market Rate.
ARTICLE XXXI
RIGHT OF FIRST REFUSAL AND RIGHT OF EXPANSION
31.1 Tenant shall have the right of first refusal to lease rentable space
in the Building other than the Leased Premises and the Retail Space (the
"Remaining Space") as provided in this Section 31.1. If at any time during the
Lease Term Landlord shall receive a bona fide offer from a third person for the
leasing of all or any portion of the Remaining Space (each an "Offer"), which
Offer Landlord shall desire to accept, Landlord shall promptly deliver to Tenant
a copy of such Offer, and Tenant may, within five (5) days thereafter, elect to
lease such Remaining Space on the same terms as those set forth in such Offer.
Landlord and Tenant shall enter into a new lease agreement regarding any such
Remaining
-43-
Space so leased by Tenant, subject to the terms and conditions of the applicable
Offer. The right of first refusal set forth in this Section 31.1 shall be
applicable to all Offers received in connection with the Remaining Space,
whether or not Landlord shall have failed to exercise a right of first refusal
under this Section 31.1 in connection with such Remaining Space in the past.
31.2 (a) Landlord and Tenant hereby agree that at any time during the Lease
Term Landlord shall have the right to enter into Additional Leases with third
parties for the Remaining Space or any portion thereof (each a "Fourth Floor
Lease"), but each Fourth Floor Lease shall have an initial term of five (5)
years or less and renewal term, if permitted pursuant to this Section 31.2(a)
and Section 31.2(c) hereof, of five (5) year or less (each a "Fourth Floor
Term"). Landlord and Tenant agree that each Fourth Floor Lease may have a
renewal option of two (2) years or fewer without Tenant's prior written consent
and a renewal option in excess of two (2) years only with Tenant's prior written
consent (each a "Fourth Floor Renewal Term"). Within ninety (90) days of
Landlord's entering into a Fourth Floor Lease, Landlord shall give Tenant
written notice of the Fourth Floor Term and Fourth Floor Renewal Term, if any,
for such Fourth Floor Lease.
(b) Tenant shall have the right to expand into the Remaining Space as
provided in this Section 31.2(b) (each a "Right of Expansion"). Tenant shall
only have the right to exercise a Right of Expansion with respect to a Fourth
Floor Lease in the event Tenant notifies Landlord in writing of its exercise of
its Right of Expansion in connection with such Fourth Floor Lease at least nine
(9) months prior to the expiration of the Fourth Floor Term or the Fourth Floor
Renewal Term, as applicable, of such Fourth Floor Lease (each an "Expansion
Period"). Tenant shall only be permitted to exercise its Right of Expansion with
respect to a Fourth Floor Lease during the applicable Expansion Period and at no
other time. In the event Landlord receives notice of Tenant's exercise of a
Right of Expansion in connection with a Fourth Floor Lease within the applicable
Expansion Period, Tenant shall be obligated to lease all of the Remaining Space
described in such Fourth Floor Lease at the then prevailing Market Rate in an
"as is condition" for a term that is coterminous with the Lease Term, which term
shall commence upon the expiration of the Fourth Floor Term or Fourth Floor
Renewal Term, as applicable, for such Fourth Floor Lease, and upon such other
terms and conditions as Landlord and Tenant shall agree. Landlord and Tenant
shall enter into a new lease agreement regarding any such Remaining Space so
leased by Tenant, subject to the terms and conditions of the preceding sentence.
(c) In the event Tenant fails to notify Landlord of the exercise of its
Right of Expansion during the applicable Expansion Period, then (i) any Fourth
Floor Renewal Term shall commence and continue in accordance with the terms of
the applicable Fourth Floor Lease, or (ii) Landlord shall have the right to
relet such
-44-
Remaining Space for an additional Fourth Floor Term, and Landlord shall have no
Right of Expansion with respect to such Remaining Space except during the
Expansion Period for such Fourth Floor Renewal Term or Fourth Floor Term, as
applicable.
(d) In the event any Remaining Space is vacated prior to the expiration of
the applicable Fourth Floor Term, such space shall be subject to the terms and
provisions of Section 31.1 hereof.
ARTICLE XXXII
PURCHASE OPTION
32.1 Tenant shall have a right to purchase the Building in accordance with
the Option Agreement attached hereto as Exhibit I and incorporated herein by
this reference (the "Option Agreement"). Landlord and Tenant shall execute the
Option Agreement as of the Effective Date.
ARTICLE XXXIII
FORCE MAJEURE
33.1 Neither the Landlord nor the Tenant shall be deemed to be in default
in the performance of any obligation on such party's part to be performed under
this Lease if and so long as the non-performance of such obligation shall be
directly caused by Unavoidable Delays; provided, that within fifteen (15) days
after the commencement of such Unavoidable Delay, the non-performing party shall
notify the other party in writing of the existence and nature of any such
Unavoidable Delay and the steps, if any, that the non-performing party shall
have taken or plans to take to eliminate such Unavoidable Delay. Thereafter, the
non-performing party shall, from time to time, on written request of the other
party, keep the other party fully informed, in writing, of further developments
concerning such Unavoidable Delay and the effort being made by the non-
performing party to perform such obligation as to which it is in default. All
provisions of this Lease shall be adjusted in accordance with such Unavoidable
Delays except for the Lease Term, which shall not be so adjusted. Nothing in
this Article XXXIII shall prohibit either Landlord or Tenant from pursuing any
and all remedies available at law or equity against persons or entities not a
party to this Lease.
ARTICLE XXXIV
GENERAL PROVISIONS
34.1 This Lease may not be altered or amended, except by an instrument in
writing signed by all parties hereto.
-45-
34.2 This Lease shall be binding upon and inure to the benefit of the
permitted successors and assigns of Landlord and Tenant.
34.3 The pronouns of any gender shall include the other genders, and either
the singular or the plural shall include the other.
34.4 This Lease shall be governed, construed and enforced in accordance
with the laws of the State of Tennessee.
34.5 This Lease, including the Exhibits attached hereto, contains and
embodies the entire agreement of the parties hereto and supersedes all prior
agreements, negotiations, letters of intent, proposals, representations,
warranties, understandings and discussions between the parties hereto. Any
representation, inducement, warranty, understanding or agreement that is not
contained in this Lease shall not be of any force or effect.
34.6 Any payment or notice required or permitted hereunder shall be deemed
to have been duly made or given when personally delivered or received via the
United States mail, or express mailed with a widely recognized, reputable
organization, postage prepaid, and addressed to Landlord at the address
specified in the preamble and to Tenant at the address specified in the preamble
until the commencement of the Lease Term and thereafter at the address of the
Building, or to such other address as either party may have been previously
furnished in writing to the other party.
34.7 Nothing contained in this Lease shall be construed as creating a
partnership or joint venture of or between Landlord and Tenant, or to create any
other relationship between the parties hereto other than that of lessor and
lessee.
34.8 Time is of the essence with respect to each of Landlord's obligations
under this Lease.
34.9 This Lease may be executed in multiple counterparts, each of which
shall be deemed an original and all of which together shall constitute one and
the same document.
34.10 This Lease shall not be recorded except that upon the request of
Landlord or Tenant, whereupon Landlord and Tenant shall execute, in recordable
form, a short form memorandum of this Lease. Such memorandum may be recorded at
the expense of the party requesting the recordation in the land records of the
jurisdiction in which the Leased Premises are located.
34.11 Except as otherwise provided in this Lease, any Additional Rent or
other sum owed by Tenant to Landlord, and any cost, expense, damage or liability
incurred by Landlord for which Tenant is liable hereunder, shall be paid by
Tenant to Landlord no later than ten (10) days after the date Landlord notifies
Tenant of
-46-
the amount of such Additional Rent, sum, cost, expense, damage or liability.
Except as otherwise provided in this Lease, any sum owed by Landlord to Tenant,
and any cost, expense, damage or liability incurred by Tenant for which Landlord
is liable hereunder, shall be paid by Landlord to Tenant no later than ten (10)
days after the date Tenant notifies Landlord of the amount of such sum, cost,
expense, damage or liability.
34.12 Any liability of Tenant to Landlord existing hereunder as of the
expiration or earlier termination of the Lease Term shall survive such
expiration or earlier termination. Any liability of Landlord to Tenant existing
hereunder as of the expiration or earlier termination of the Lease Term shall
survive such expiration or earlier termination.
34.13 At the expiration or earlier termination of the Lease Term, Tenant
shall deliver to Landlord all keys to the Leased Premises, whether such keys
were furnished by Landlord or otherwise procured by Tenant, and shall inform
Landlord of the combination of each lock, safe and vault, if any, in the Leased
Premises.
34.14 All notices, requests, demands, directions and other communications
(collectively, "notices") required under this Lease shall be in writing
(including communication by facsimile transmission) and shall be sent by hand to
an officer or partner of the receiving party, by registered or certified mail
return receipt requested, by nationally recognized and reputable overnight
courier service maintaining records of receipt, or by facsimile transmission
with confirmation in writing mailed first-class, in all cases with charges
prepaid. Any such properly given notice shall be effective upon the earlier of
receipt or (a) the date delivered by hand, or (b) the third Business Day after
being mailed, or (c) the following Business Day if sent by overnight courier
service, or (d) when sent by facsimile, upon sender's receipt of transmission
confirmation during normal business hours or on the next Business Day if not
confirmed during normal business hours. All notices shall be addressed as
follows:
LANDLORD: Battleship, LLC
x/x Xxxxxx Xxxxxxx XxXxxxxx
000 00xx Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-47-
With copies of all notices to be sent to:
W. Xxxx Xxxxxxxx
Xxxxxx, Xxxxxxxx & Xxxxxxx
000 Xxxxxx Xxxxxx
XxxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
TENANT: PMT Services, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With copies of all notices to be sent to:
Xxxxxxx X. Xxxxx
Xxxxxx Xxxxxxx Xxxxxx & Xxxxx
000 Xxxxx
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All notices shall be sent to the applicable party at the address stated above or
in accordance with the last unrevoked written direction from such party to the
party hereto giving the notice. Rejection or other refusal to accept or
inability to deliver because of a changed address of which no notice has been
given pursuant to the terms of this Section 34.14 shall nevertheless constitute
receipt of the communication sent.
IN WITNESS WHEREOF, the parties hereto have executed the foregoing Lease as
of the Effective Date.
LANDLORD:
BATTLESHIP, LLC, a Tennessee limited
liability company
By: /s/ Xxxx XxXxxxxx
----------------------------------
Xxxx XxXxxxxx, Chief Manager
-48-
TENANT:
PMT SERVICES, INC., a Tennessee corporation
By: /s/ Xxxx Xxxxxxx
------------------------------------
Print Name: Xxxx Xxxxxxx
----------------------------
Title: CFO
---------------------------------
-49-
