Exhibit 10.50
TEN OAKS OFFICE CENTER
LEASE
THIS LEASE and the attached Schedule A and Exhibit 1, which are
incorporated herein by this reference, is made and entered into this 8th day of
October 2002, by and between PINEBELT, LLC, a South Carolina limited liability
company, hereinafter called "Landlord," and INTEGRATED BUSINESS SYSTEMS AND
SERVICES, INC., hereinafter called "Tenant."
WITNESSETH:
In consideration of the covenants and agreements of the respective
parties herein contained, the parties hereto, for themselves, their heirs,
successors, distributees, administrators, legal representatives and permitted
assigns, do hereby agree as follows:
A. DEMISED PREMISES:
Landlord, by these presents, does hereby demise and let unto Tenant,
and Tenant hereby leases and hires from Landlord, for the term and upon the
rental covenants and agreements herein set forth, those certain premises located
in the State of South Carolina, County of Richland, City of Columbia, located at
0000 Xxxx Xxxx, Xxxxx X, Xxx Xxxx 00000 and as more specifically described on
the Schedule A and identified as Space G on Exhibit 1 attached hereto (the
"Demised Premises").
B. TERM AND DELIVERY OF PREMISES:
1. TO HAVE AND TO HOLD said premises unto Tenant for a term of 120
months, beginning on the lst day of February 2003 (the "Commencement Date"), and
ending on the 31st day of January 2013 (such period hereinafter called the
"Term").
2. ACTUAL POSSESSION: It is further agreed and understood that if
Landlord is unable to deliver actual possession of the Demised Premises to
Tenant at the Commencement Date because of the retention of possession thereof
by parties other than Landlord, or because Landlord is otherwise unable to
deliver the Demised Premises to Tenant in a condition suitable for occupancy by
Tenant as professional grade office space in a condition similar to that
described in Exhibit 2 attached hereto, then Landlord shall not be liable to
Tenant for damages, but Tenant shall be entitled in its sole discretion to
terminate this Lease if the delay in delivery of possession continues for sixty
(60) or more days after the Commencement Date. Such termination shall be
effected by written notice from Tenant given prior to Landlord's tendering
actual possession of the Demised Premises to the Tenant as contemplated herein.
In the event such delivery of actual possession occurs after the Commencement
Date, the Term of this Lease shall not be deemed to have commenced until the
date such delivery of actual possession shall have occurred, and Tenant shall be
entitled to a credit against its rent obligation to Landlord in an amount equal
to $300 multiplied by the number of days following the Commencement Date as to
which the tendering to Tenant of actual delivery of the Demised Premises as
contemplated by this Lease has not yet occurred; provided, however, that for
purposes of this calculation, the number of such days following the Commencement
Date shall be reduced by any period of delay caused wholly by the actions or
inactions of Tenant. In the event of such delayed possession, if the Term shall
commence on a day other than the first day of a calendar month, rental shall be
paid for the portion of the month of initial possession by Tenant in proportion
to the monthly rental rate as herein provided, and the Lease shall be extended
so as to cause the expiration of the Term to be on the last day of the last
month of the Term.
3. CONDITIONAL POSSESSION: Upon execution of this Lease, as an
accommodation to Tenant in carrying out certain preliminary activities,
including temporary storage of office furniture and equipment and the set up of
information technology networking hardware, electronic support and the like,
Landlord hereby grants to Tenant conditional possession of the Demised Premises
and to certain space to be designated by Landlord to Tenant that is contiguous
and adjoining the Demised Premises. Such conditional possession shall be subject
to Landlord's reasonable directions regarding use and access to such space.
Landlord shall not be liable or responsible for the condition of, or any damage
to the items located in temporary storage, and Tenant shall be responsible
insuring such items.
C. COVENANTS AND CONDITIONS OF LEASE:
This Lease is made on the following covenants and conditions which are
expressly agreed to by Landlord and Tenant:
1. BASE RENT: Tenant covenants and agrees to pay as base rent to
Landlord the annual sum of $36,000 in twelve (12) monthly installments of
$3,000, and as outlined in Schedule A attached hereto. Said base rental shall be
payable monthly in advance to the offices of Ten Oaks Office Center
(hereinafter, the "Office Center"). Rent is due on the first day of each month
and shall not be withheld for any reason whatsoever. In the event Tenant shall
fail to pay each rental on or before the tenth (10th) day of the month for which
rent is due, a late charge of five (5%) percent of such past due amount per
month, shall be added to the rental and paid to Landlord for each such late
payment, and the same shall be treated as additional rent.
2. RENT COMMENCEMENT: Notwithstanding anything in this Lease to the
contrary, no rental obligation under this Lease shall accrue and be owing by
Tenant with respect to any period prior to the later to occur of (a) the
expiration of ninety (90) days following the date conditional possession of the
Demised Premises has been delivered by Landlord to Tenant as described in
Section A(3) of this Lease, and (b) the date on which Landlord has delivered
actual possession of the Demised Premises to Tenant in the manner contemplated
by Section A(2) of this Lease. Landlord shall use all reasonable diligence to
deliver actual possession of the Demised Premises to Tenant following the date
hereof and on or before the Commencement Date.
3. AUTHORIZED USE: Tenant agrees not to abandon or vacate the Demised
Premises, not to use them for other than normal general office purposes and not
to use or permit them to be used for any offensive, noisy or dangerous trade or
business, or in violation of any law, ordinance, or regulation of any
governmental body or authority applicable to the Demised Premises. Tenant will
not do or permit any act or omission which will increase the rate of insurance
on the Demised Premises, and if such rate be increased, Tenant agrees to pay
Landlord such increased cost of insurance. Tenant will not obstruct entries,
passageways or other common areas so as to interfere with the use thereof by
other tenants.
4. TENANT ALTERATIONS: Tenant shall not make, or suffer to be made, any
permanent alterations of the Demised Premises, or any part thereof, without the
written consent of Landlord, which consent shall not be unreasonably withheld.
Any such alterations or improvements, whether made with or without Landlord's
permission, and including, but not limited to, permanent partitions,
wall-to-wall carpeting or lighting, shall, at the option of Landlord, become the
property of Landlord (with no obligation of Landlord to pay for same) and may
2
not be removed unless approved by Landlord. Tenant may install at its expense
and without Landlord's consent movable office partitions, furniture and
equipment, continuous power maintenance systems, security access and/or
surveillance systems and other personal property or fixtures, and may remove
same at any time provided that any damage to the Demised Premises caused thereby
shall be repaired by Tenant at Tenant's expense. Tenant shall not install or
maintain any equipment, partitions, furniture or apparatus, the weight or
operation of which would tend to injure or be detrimental to the Demised
Premises or unreasonably annoy or disturb other tenants. Notwithstanding
anything contained herein to the contrary, if construction to the Demised
Premises is to be performed by Landlord prior to Tenant's occupancy, Landlord
will, at its expense, commence and/or complete the construction of the
improvements constituting the Demised Premises, including partitions, in
accordance with the floor plan and its specifications agreed to in writing by
the parties and made a part of this Lease by reference. The plans and
specifications shall be approved and signed by the parties prior to the
commencement of construction. Any material changes or modifications to the
approved plans and specifications shall be made and accepted by written change
order signed by Landlord and Tenant, and shall constitute an amendment to this
Lease. Upon substantial completion of the Demised Premises and other
improvements in accordance with the plans and specifications, Tenant agrees to
execute and deliver to Landlord a letter (in form acceptable to Landlord),
accepting delivery, without unreasonable qualification, of the Demised Premises.
5. TENANT'S MAINTENANCE AND REPAIR OF DEMISED PREMISES: Tenant agrees
not to suffer or commit any waste and to keep and to do whatever is necessary to
maintain the interior of its Demised Premises in good condition and repair,
natural deterioration by ordinary use and reasonable wear, fire, the elements,
and acts of God excepted. Tenant shall replace all broken glass in the Demised
Premises except when such may be covered by Landlord's normal property damage,
fire and extended coverage insurance policies (in which case Tenant shall be
responsible for cost of Landlord's deductible), and shall repair any damage,
willful or otherwise, to the Demised Premises, caused by it, its agents,
invitees or clients. If Tenant fails to make the repairs or to maintain the
Demised Premises as required under this Section, Landlord may, at its option,
make the repairs or replacements it deems necessary, and the cost of such
repairs or replacements supported by appropriate documentation shall be charged
to Tenant as additional rent and shall become payable by Tenant with the payment
of the rental next due hereunder.
6. LANDLORD'S MAINTENANCE AND REPAIR OF DEMISED PREMISES: Landlord
shall at its own expense keep and maintain in good repair and working order the
heating and air conditioning equipment and conduits (Tenant shall be responsible
for minor repairs less than $500.00 per occurrence, and up to but not to exceed
in the aggregate $2,0000.00 annually) plumbing (supply and sewer), roof,
foundation and exterior walls and windows, electricity, parking lot and all
other areas outside of Demised Premises constituting common areas for the shared
use by other tenants of the Office Center. Landlord agrees to make repairs that
may become necessary by reason of vandalism, the elements, fire, acts of God,
acts of war, the failure of Landlord to comply with its ongoing maintenance
obligations hereunder, insurrection or riot, earthquake, and other elements,
including damage by termites, fungus, mildew growth or dry rot. Landlord shall
be under no obligation to inspect the Demised Premises and Tenant shall be
responsible for notifying Landlord in writing of any needed repairs or
replacements after which Landlord shall have a reasonable time in which to make
such repairs or replacements depending on the nature of the repair or
replacement needed; provided, however, that should Landlord fail to commence
such repairs or replacements within fifteen (15) days following notice given to
3
Landlord of the need for such repairs or replacements, then Tenant shall be
entitled hereunder to have such repairs or replacements undertaken on its
behalf, and Tenant shall be entitled to credit the costs of such repairs or
replacements against amounts owed to Landlord hereunder as rent or otherwise.
Provided that Landlord is in compliance with its maintenance and repair
obligations hereunder, Landlord shall not be held liable for any damage to
Tenant, and Tenant shall not be entitled to any abatement or reduction of rent
for Landlord's failure to make such repairs except as otherwise set forth in
this Section. Furthermore, Landlord shall not be liable to Tenant, except as
expressly provided in this Lease, for any damage or inconvenience to Tenant by
reason of any repairs, alterations or additions made by Landlord under this
Lease, and Tenant shall not be entitled to any abatement or reduction of rent
associated therewith, provided that such inconvenience is of a nature consistent
with the kind of repairs, alterations or additions undertaken, Tenant is
provided with reasonable advance notice of such proposed activities, and the
same do not have the practical effect of preventing Tenant from carrying on its
business.
7. COMMON AREA CHARGES: Tenant shall pay its Pro-Rata Share (as set
forth on Schedule A attached hereto) of all Common Area and Service Area
operation and maintenance charges (collectively, the "Common Area Charges").
Common Area Charges shall include all reasonable costs and expenses of every
kind and nature paid or incurred by Landlord in (a) operating and maintaining
the Common Areas, (b) operating and maintaining the Service Areas, (c)
maintaining Office Center signs on the Office Center site, (d) providing on-site
traffic control, (e) pest control for the benefit of the Office Center, (f) ad
valorem taxes for the entire Office Center, and (g) property and casualty
insurance for the entire Office Center. Common Area Charges shall also include
all reasonable costs associated solely with the Common Areas and Service Areas
for property management, cleaning, repairing; lighting, heating, ventilating and
air conditioning equipment; snow removal; line painting, landscaping; providing
security; providing public liability, property damage, fire, and extended
coverage and such other insurance as Landlord deems appropriate; personal
property taxes; supplies; fire protection and fire hydrant charges; water and
sewer charges; utility charges; license and permit fees; reasonable depreciation
of equipment used in operating and maintaining the Common Areas and Service
Areas and rent paid for the leasing of any such equipment. Tenant shall pay a
monthly estimated amount for Common Area Charges as detailed in Schedule A
attached hereto. The Common Area Charges shall be reconciled on a calendar-year
basis by Landlord with Tenant's Pro-Rata Share of any resulting debit or credit
balance applied to the total amount that Tenant paid during the year for Common
Area Charges.
For purposes of this Lease, (a) the term "Common Areas" refers to all
Office Center amenities, driveways, parking areas, sidewalks, walkways, and all
other areas and facilities located on the Office Center property which are
available for use in common by occupants of the Office Center and their
customers and invitees; (b) the term "Service Areas" refers to all garbage and
refuse disposal facilities, maintenance and storage rooms, loading areas and all
other areas and facilities located on the Office Center which are used in the
maintenance and operation of the Office Center.
8. PAYMENT OF TAXES AND OTHER ASSESSMENTS: Landlord shall pay annually
all real estate taxes on the Demised Premises existing at the commencement of
this Lease. However, Tenant shall pay its Pro-Rata Share (as set forth on
Schedule A attached hereto) of any and all taxes and other assessments assessed
or levied against the Demised Premises, as well as any special assessment
4
imposed upon the Demised Premises for any purpose whatsoever during the Term.
Such payment shall be included in the Common Area Charges. In the event the
Demised Premises are less than the entire property assessed for such taxes for
any such tax year, then the tax for any such year applicable to the Demised
Premises shall be calculated in accordance with Tenant's Pro-Rata Share as
hereinabove defined..
In the event that any documentary stamp tax, or tax levied on the
rental, leasing or letting of the Demised Premises, whether local, state or
Federal, is required to be paid due to execution hereof, the cost thereof shall
be borne by Tenant.
Tenant at all times shall be responsible for and shall pay, before
delinquency, all municipal, county, state or Federal taxes assessed against any
leasehold interest or any fixtures, equipment, stock-in-trade or other personal
property of any kind, installed or used by Tenant or with Tenant's actual
knowledge in or on the Demised Premises.
Should any governmental taxing authority acting under any present or
future law, ordinance or regulation, levy, assess or impose a tax, excise and/or
assessment (other than an income or franchise tax) upon or against the rentals
payable by Tenant to Landlord, either by way of substitution or in addition to
any existing tax on land or buildings or otherwise, Tenant shall be responsible
for and shall pay such tax, excise and/or assessment, or shall reimburse the
Landlord for the amount thereof, as the case may be.
9. SUBORDINATION OF LEASE: Tenant accepts this Lease subject and
subordinate to any recorded or unrecorded mortgage presently existing or
hereafter imposed or created by Landlord, or assigns, upon the Demised Premises.
Landlord is hereby irrevocably vested with full power and authority to
subordinate Tenant's interest in and to this Lease to any mortgage or other
Landlord's financing or refinancing imposed or created on the Demised Premises,
and Tenant agrees to execute, promptly upon demand, any other instruments deemed
necessary by Landlord or Landlord's lender in connection with the subordination
of this Lease. If the Landlord's interest under this Lease shall be transferred
or assigned by reason of foreclosure or other proceedings on the Demised
Premises, Tenant shall be bound to the transferee (sometimes called the
"Purchaser") at the option of the transferee, under the same terms, covenants
and conditions of this Lease for the balance of the Term remaining, and any
extensions or renewals, with the same force and effect as if the transferee were
Landlord under this Lease, and, if required by the transferee, Tenant agrees to
attorn to the transferee, without exception; provided that transferee remains
bound by Landlord's obligations under this Lease.
10. PARKING: Tenant is hereby granted the right to use spaces in the
Office Center parking area (as available) in common with other tenants, and
Landlord reserves the right to assign spaces in the parking area or otherwise
control its use. Assignment or allocation of spaces to each tenant when it
becomes advisable will normally be determined by dividing the total number of
spaces available into the total rentable square footage in the building and
dividing that result into the number of square feet leased by each tenant.
Fractions will be rounded to the lowest number.
11. ENTRY BY LANDLORD: Landlord shall have the right to enter the
Demised Premises at reasonable times by giving tenant 24 hour notice for the
purpose of inspection, posting notices or supervising any necessary repairs and
maintenance required herein to be performed by Landlord. Sixty (60) days prior
to the expiration of this Lease Landlord may post suitable notice on the Demised
Premises that same are for rent and may show same to prospective tenants at
reasonable times.
5
12. ASSIGNMENT AND SUBLETTING: Neither this Lease nor any interest
herein may be assigned by Tenant voluntarily or involuntarily, by operation of
law, or otherwise, and neither all nor any part of the Demised Premises shall be
sublet by Tenant without the written consent of Landlord first had and obtained.
In the event that the sublease rental is greater than the contract rent
payable by Tenant under this Lease, any such excess in rental shall be deemed
additional rent payable to Landlord as consideration for its consent to the
assignment or sublease. Sublease rent shall be payable directly to Landlord. Any
assignee or subtenant shall be bound to all the terms, covenants and conditions
of this Lease. The right to assign or sublease the interest of an assignee or
subtenant under this paragraph is prohibited.
In the event this Lease or any interest herein is assigned or the
Demised Premises or any part thereof is sublet, Tenant shall remain fully liable
under all terms, covenants and conditions of this Lease. In no event will any
provision herein stated to renew, extend or purchase be available to any
assignee or subtenant. Tenant shall furnish Landlord, prior to any allowable
sublease or assignment, a copy of the proposed written sublease or assignment,
and thereafter furnish Landlord with a copy of any executed sublease or
assignment.
13. WAIVER OF COVENANTS: It is agreed that the waiving of the covenants
of this Lease by either party shall be limited to the particular instance and
shall not be deemed to waive any other breaches of such covenant or any
provision herein contained. No forbearance by either party to seek a remedy for
any breach of the Lease shall be deemed a waiver by such party of its rights or
remedies with respect to such breach.
14. DEFAULT BY TENANT: This Lease is made upon the condition that the
Tenant shall punctually and faithfully perform all the covenants and agreements
by it to be performed as herein set forth, and if any of the following events of
default shall occur, to wit: (a) any installment of rent, additional rent, taxes
or any other sums required to be paid by Tenant hereunder, or any part thereof,
shall at any time be in arrears and unpaid when due for thirty (30) days (notice
by Landlord to Tenant not being required); or (b) there be any default on the
part of Tenant in the observance or performance of any of the other covenants,
agreements or conditions of this Lease on the part of Tenant to be kept and
performed, and said default shall continue for a period of fifteen (15) days
after written notice thereof from Landlord to Tenant (unless such default cannot
reasonably be cured within fifteen (15) days and Tenant shall have commenced to
cure said default within said fifteen (15) days and continues diligently to
pursue the curing of the same); or (c) Tenant shall file a petition in
bankruptcy or be adjudicated a bankrupt, or file any petition or answer seeking
any reorganization, arrangement, composition, readjustment, liquidation,
dissolution, receivership or similar relief for itself under any present or
future Federal, state or other statutes, law or regulations, or make an
assignment for the benefit of creditors; or (d) any trustee, receiver or
liquidator of Tenant or of all or any substantial part of its properties or of
the Demised Premises shall be appointed in any action, suit or proceeding by or
against Tenant and such proceeding or action shall not have been dismissed
within ninety (90) days after such appointment; or (e) the leasehold estate
hereby created shall be taken on execution or by other process of law; or (f)
Tenant shall cease its operations for a period of sixty (60) consecutive days;
or (g) Tenant shall vacate or abandon the Demised Premises, then and in any of
said cases, Landlord at its option may terminate this Lease and reenter upon the
Demised Premises and take possession thereof with full right to xxx for and
collect the entire balance of the Base Rent for the last year of the term in
addition to any other rights afforded to Landlord in this Lease, including
damages to Landlord by reason of any breach or default on the part of Tenant, or
Landlord may, if it elects to do so, bring suit for the collection of such rents
and damages without entering into possession of the Demised Premises or voiding
this Lease.
6
In addition to, but not in limitation of, any of the remedies set forth
in this Lease or given to Landlord by law or in equity, Landlord shall also have
the right and option, in the event of any default by Tenant under this Lease and
the continuance of such default after the period of notice above provided, to
retake possession of the Demised Premises from Tenant without process of law, by
summary proceedings or otherwise, and it is agreed that the commencement and
prosecution of any action by Landlord in forcible entry and detainer, ejectment
or otherwise, or any execution of any judgment or decree obtained in any action
to recover possession of the Demised Premises, shall not be construed as an
election to terminate this Lease unless Landlord expressly exercises its option
hereinabove provided to declare the Term ended, whether or not such entry or
re-entry be had or taken under summary proceedings or otherwise, and shall not
be deemed to have absolved or discharged Tenant from any of its obligations and
liabilities for the remainder of the Term, subject to Tenant's right to credit
against such obligation to Landlord all amounts realized by Landlord through the
rent or lease or sublet or assignment of the Demised Premises during the Term to
some other person or entity, and Tenant shall, notwithstanding such entry or
re-entry, continue to be liable for the payment of the rents and the performance
of the other covenants and conditions thereof and shall pay to Landlord all
monthly deficits after any such re-entry in monthly installments as the amounts
of such deficits from time to time are ascertained, subject to Tenant's right to
credit against such obligation to Landlord all amounts realized by Landlord
through the rent or lease or sublet or assignment of the Demised Premises during
the Term to some other person or entity, and, in the event of any such ouster,
Landlord rents or leases the Demised Premises to some other person, firm or
corporation (whether for a term greater, less than or equal to the unexpired
portion of the Term) for an aggregate rent during the portion of such new lease
coextensive with the Term which is less than the rent and other charges which
Tenant would pay hereunder, for such period, Landlord may immediately upon the
making of such new lease or the creation of such new tenancy xxx for and recover
the difference between the aggregate rental provided for in said new lease for
the portion of the term co-extensive with the Term and the rent which Tenant
would pay hereunder for such period, together with any expense to which Landlord
may be put for brokerage commission, placing the Demised Premises in tenable
condition or otherwise. If such new lease or tenancy is made for a shorter term
than the balance of the Term, any such action brought by Landlord to collect the
deficit for that period shall not bar Landlord from thereafter suing for any
loss accruing during the balance of the Term.
If Tenant at any time shall fail to pay any taxes, assessments or
liens, or to make any payment or to perform any act required by this Lease to be
made or performed by it, Landlord, without waiving or releasing Tenant from any
obligation or default under this Lease, may (but shall be under no obligation
to) at any time thereafter make such payment or perform such act for the account
and at the expense of Tenant. All sums so paid by Landlord and all costs and
expenses so incurred shall accrue interest at the annual simple interest rate of
eighteen (18%) percent from the date of payment or incurring thereof by Landlord
and shall constitute additional rent payable by Tenant under this Lease and
shall be paid by Tenant to Landlord upon demand. Except as otherwise expressly
provided herein, all other sums payable by Tenant to Landlord under this Lease,
if not paid when due, shall accrue interest at the rate of ten (10%) percent
from their due date until paid, said interest to be so much additional rent
under this Lease and shall be paid to Landlord by Tenant upon demand.
All rights and remedies of Landlord herein enumerated shall be
cumulative, and none shall exclude any other remedies allowed at law or in
equity.
7
Tenant agrees to pay a reasonable attorney's fee and all costs if
Landlord, in its sole discretion, employs an attorney to collect any rent,
additional rent or any other sums payable under this Lease or to enforce any
covenants, agreements or conditions on the part of Tenant to be kept and
performed; and Tenant expressly waives all exemptions secured to Tenant under
the laws of the State of South Carolina or of any other state of the United
States as against the collection of any debt herein or hereby incurred or
secured. For the purpose of any suit brought by Landlord or based on the Lease,
this Lease shall be construed to be a divisible contract to the end that
successive actions may be maintained as successive periodic sums shall mature
under this Lease, and it is further agreed that failure to include in any suit
any sum or sums then mature shall not be a bar to the maintenance of any suit or
action for the recovering of said sum or sums so omitted. Tenant waives the
right to a jury trial in any suit or proceeding brought to enforce the terms,
covenants and conditions of this Lease, including but not limited to the
collection of rent, or any other amounts due hereunder.
15. INSURANCE/INDEMNITY:
(a) "Injuries and Property Damage." Tenant shall at all times during the Term
keep in effect with responsible companies liability insurance acceptable to
Landlord in the names of and for the benefit of Tenant and Landlord with limits
as follows:
Bodily Injury----------$350,000.00 Single Limit
Bodily Injury----------$750,000.00 Per Occurrence
Property Damage------$1,000,000.00
Such insurance may, at Tenant's election., be earned under any general
blanket coverage of Tenant. A renewal policy shall be procured not less than ten
(10) days prior to the expiration of any policy. Each original policy or a
certified copy thereof, or a satisfactory certificate of the insurer evidencing
insurance carried with proof of payment of the premium shall be deposited with
Landlord. The limits of said insurance shall not, however, limit the liability
of Tenant hereunder. In the event that the Demised Premises constitute a part of
a larger property said insurance shall have a Landlord's Protective Liability
endorsement attached thereto. If Tenant shall fail to procure and maintain said
insurance, Landlord may, but shall not be required to, procure and maintain the
same, but at the expense of Tenant. Tenant shall have the right to settle and
adjust all liability claims against the insuring companies, but without
subjecting Landlord to any liability or obligation.
(b) "Property Insurance." Landlord shall obtain and keep in force during the
Term a policy or policies of insurance covering loss or damage to the Demised
Premises, in the amount of the full replacement value thereof, providing against
all perils included within the classification of fire, extended coverage,
vandalism, malicious mischief, special extended perils (all risk) and loss of
rents. Tenant shall pay during the Term, in addition to rent, its pro-rata share
of the premiums for the insurance required under this Section 15(b), and such
amount shall be included in the Common Area Charges. If the Term shall not
expire concurrently with the expiration of the period covered by such insurance,
Tenant's liability for premium increases shall be prorated on an annual basis.
(c) "Insurance Policies." Insurance required hereunder shall be in companies
rated "A" or better in "Best's Insurance Guide." Tenant shall deliver to
Landlord copies of policies of liability insurance required under Section 15(a)
or certificates evidencing the existence and amount of such insurance with loss
payable clauses satisfactory to Landlord. No such policy shall be canceled or
subject to reduction of coverage or other modification except after ten (10)
days' prior written notice to Landlord. Tenant shall, within ten (10) days prior
8
to the expiration of such policies, furnish Landlord with renewals or "binders"
thereof, or Landlord may order such insurance and charge the cost thereof to
Tenant, which amount shall be payable by Tenant upon demand. Tenant shall not,
do or permit to be done anything which shall invalidate the insurance policies
referred to in Sections 15(a) and (b).
(d) "Waiver of Subrogation." Tenant and Landlord each hereby waives any and all
right of recovery against the other, or against the officers, employees, agents
and representatives of the other, for loss of or damage to such waiving party or
its property or the property of others under its control, where such loss or
damage is insured against under any insurance policy in force at the time of
such loss or damage. Tenant and Landlord shall, upon obtaining the policies of
insurance required hereunder, give notice to the insurance carrier or carriers
that the foregoing mutual waiver of subrogation is contained in this Lease.
(e) "Indemnity." Tenant shall indemnify and hold harmless Landlord from and
against any and all claims arising from Tenant's use of the Demised Premises, or
from any activity, work or things done, permitted or suffered by Tenant in or
about the Demised Premises or elsewhere and shall further indemnify and hold
harmless Landlord from and against any and all claims arising from any breach or
default in the performance of any obligation on Tenant's part to be performed
under the terms of this Lease, or arising from any negligence of the Tenant, or
any of Tenant's agents, contractors or employees, and from and against all
costs, attorney's fees, expenses and liabilities incurred in the defense of any
such claim or any action or proceeding brought thereon; and in case any action
or proceeding be brought against Landlord by reason of any such claim, Tenant
upon notice from Landlord shall defend the same at Tenant's expense by counsel
satisfactory to Landlord. Tenant, as a material part of the consideration to
Landlord, hereby assumes all risk of damage to property or injury to persons,
in, upon or about the Demised Premises arising from any cause and Tenant hereby
waives all claims in respect thereof against Landlord. However, Tenant does not
indemnify Landlord against any liabilities caused by Landlord's gross
negligence.
(f) "Exemption of Landlord from Liability." Tenant agrees that Landlord shall
not be liable for injury to Tenant's business or any loss of income therefrom or
for damage to goods, wares, merchandise or other property of Tenant, Tenant's
employees, invitees, customers or any other person in or about the Demised
Premises, nor shall Landlord be liable for injury to the person of Tenant,
Tenant's employees, agents or contractors, whether such damage or injury is
caused by or results from fire, ice, steam, electricity, gas, water or rain, or
from the breakage, leakage, obstruction or other defects of pipes, sprinklers,
wires, appliances, plumbing, air conditioning or lighting fixtures, or from any
other cause, whether the said damage or injury results from conditions arising
upon the Demised Premises or upon other portions of the building or property of
which the Demised Premises are a part, or from other sources or places, and
regardless of whether the cause of such damage or injury or the means of
repairing the same is inaccessible to Tenant. Landlord shall not be liable for
any damages arising from any act or neglect of any other tenant, if any, of the
building in which the Demised Premises are located. However, Tenant is not
liable for any injury or death of any person or persons or any loss or damage
arising out of the gross negligence of the Landlord.
16. DAMAGE OR DESTRUCTION BY FIRE OR OTHER CASUALTY: If the Demised
Premises or any part thereof shall be substantially damaged or destroyed by fire
or other casualty, Landlord shall promptly repair all such damage and restore
the Demised Premises without expense to Tenant, subject to delays due to
adjustment of insurance claims, strikes and other causes beyond Landlord's
control. If such damage or destruction shall render the Demised Premises
untenable in whole or in part, the rent shall be abated wholly or proportionally
9
as the case may be until the damage shall be repaired and the Demised Premises
restored. If the damage or destruction shall be so extensive as to require the
substantial rebuilding (i.e., expenditure of fifty (50%) percent or more of
replacement cost) of the building or buildings of which the Demised Premises are
a part, Landlord or Tenant may elect to terminate this Lease by written notice
to the other given thirty (30) days after the occurrence of such damage or
destruction, unless the Landlord has contracted for or begun reconstruction. If
it is anticipated that said rebuilding will take in excess of one hundred twenty
(120) days, Landlord shall notify Tenant and Tenant shall be give the option of
canceling said Lease within five (5) working days of said notification or
Landlord may rebuild or contract for said rebuilding of which the Demised
Premises are a part.
Landlord and Tenant hereby release each other from liability for loss
or damage occurring on or to the Demised Premises or the premises of which they
are a part or to the contents of either thereof, caused by fire or other hazards
ordinarily covered by fire and extended coverage insurance policies and each
waives all rights of recovery against the other for such loss or damage. Willful
misconduct lawfully attributable to either party, whether in whole or in part a
contributing cause of the casualty giving rise to the loss or damage, shall not
be excused under the foregoing release and waiver. Landlord hereby agrees to
keep the building insured against fire and other perils normally covered by
fire; and extended coverage. Tenant waives any right or claim to the proceeds of
such insurance.
17. HOLDOVER: Should Tenant remain in possession of the Demised
Premises or any part thereof after the expiration of the Term, such holding over
shall, unless otherwise agreed in writing, constitute a month-to-month tenancy
only, and Tenant shall pay as monthly rental an amount equal to two (2) times
the rent, including additional rent, in effect during the last calendar month of
the Term. Tenant agrees to give Landlord thirty (30) days prior written notice
of intent to vacate the Demised Premises.
18. CONDEMNATION: In the event a substantial portion of the Demised
Premises shall be taken or condemned at any time during the Term through the
exercise of power of eminent domain, with or without litigation, and Tenant
shall determine that the remaining portion of the Demised Premises are not
reasonably suitable for its use and occupation, Tenant may, by giving written
notice to Landlord within sixty (60) days after the date of such taking or
condemnation, terminate this Lease as of the date (to be set forth in said
notice) not earlier than thirty (30) days after the date of the notice, and
Landlord shall refund any unearned rent paid in advance by Tenant. If Tenant
does not terminate this Lease as provided above, this Lease shall continue in
force as to the remaining portion of the Demised Premises and in such event the
monthly rental thereafter payable by Tenant hereunder shall be adjusted and
prorated in the exact ratio which the value of the Demised Premises after such
taking or condemnation bears to the value of the Demised Premises immediately
preceding the condemnation, and Landlord shall, at its own expense, make any
repairs or alterations to said Demised Premises which may be necessary to
restore the Demised Premises, insofar as possible, to its condition prior to the
taking or condemnation. Notwithstanding anything contained herein to the
contrary, in the event that the portion of the Demised Premises taken or
condemned shall consist entirely of the outside parking area or grounds not a
part of the building portion of the Demised Premises, then in the event Tenant
may terminate this Lease only if Landlord fails to provide sufficient parking as
otherwise required under this Lease.
10
The entire award provided by any condemnation action shall be the
property of Landlord, and Tenant hereby assigns to Landlord all its right, title
and interest in and to any such award. Tenant however, shall be entitled to
claim, prove and receive in the condemnation proceeding such awards as may be
allowed for fixtures and other equipment installed by it, but only if such
awards shall be made by the court in addition to (and shall in no manner
whatsoever reduce) the award made by it to Landlord for the land and
improvements or part thereof so taken.
In the event any part of the Demised Premises shall be taken or
condemned at any time during the Term through the exercise of such power of
eminent domain, with or without litigation, and the remainder of the Demised
Premises shall not, in the opinion of the Landlord, constitute an economically
feasible operating unit, Landlord may, by giving written notice to the Tenant
within sixty (60) days after the date; of such taking or condemnation, terminate
this Lease as of a date (to be set forth in said notice) not earlier than thirty
(30) days after the date of the notice; rent shall be apportioned as of the
termination date.
19. QUIET ENJOYMENT: If and so long as Tenant pays the rents reserved
by this Lease and performs and observes all the covenants and provisions hereof,
Tenant shall quietly enjoy the Demised Premises, subject to the terms of this
Lease, any mortgages or other financing agreements to which this Lease is
subordinate, and other tenant leases in effect as to the building of which the
Demised Premises are a part, and Landlord will warrant and defend Tenant in the
enjoyment and peaceful possession of the Demised Premises throughout the Term;
provided, however, Landlord shall not be responsible for the acts or omissions
of any other tenant or third party that may interfere with Tenant's use and
enjoyment of the Demised Premises.
20. SIGNS AND BUILDING DIRECTORY: No signs of any type shall be
installed any place on the building of which the Demised Premises are a part or
on the exterior of the Demised Premises without prior written approval and
consent of Landlord. Landlord shall install and maintain a building directory
and reserves the right to limit and control the listings of Tenants and
description to be set forth thereon.
21. RULES AND REGULATIONS: Landlord may from time to time publicize
such rules and regulations in writing which it may consider necessary and in the
best interest of the building of which the Demised Premises are a part. Tenant
agrees to abide by such rules and regulations so long as they do not
unreasonably interfere with Tenant's use and occupancy of the Demised Premises,
and such rules and regulations, as established from time to time, are expressly
made a part of the terms, covenants and conditions of this Lease by reference.
22. SURRENDER OF PREMISES: Tenant agrees to turn over all keys and to
surrender the Demised Premises at the expiration or sooner termination of this
Lease or any extensions thereof, broom-clean and in the same condition as when
delivered to Tenant or as altered, pursuant to the provision of this Lease,
ordinary wear and tear and damage by the elements excepted, and Tenant shall
remove all of its property. Tenant agrees to pay a reasonable cleaning charge
should it be necessary for Landlord to restore or cause to be restored the
Demised Premises to the same condition as when delivered to Tenant.
23. RIGHTS OF SUCCESSORS AND ASSIGNS: The covenants and agreements
contained in this Lease shall apply to, inure to the benefit of, and be binding
upon the parties hereto, their heirs, successors, distributees, executors,
administrators, legal representatives, and assigns and upon their respective
successors in interest, except as expressly otherwise hereinabove provided.
11
24. SECURITY DEPOSIT: Upon execution of this Lease, and as security for
the faithful performance by Tenant of all of the terms and conditions of this
Lease on Tenant's part to be performed, Tenant has deposited or shall deposit
with Landlord the sum identified in Schedule A attached hereto. Such funds may
not be escrowed. Such amount shall be returned to Tenant, without interest,
within thirty (30) days after the day set forth for the expiration or sooner
termination of the Term if Tenant has fully and faithfully carried out all of
the terms, covenants and conditions of this Lease on its part to be performed.
Landlord shall have the right to apply any part of said deposit to cure any
default of Tenant, including but not limited to damages and payment of rent. The
application of the deposit shall be at the sole discretion of Landlord. It is
expressly understood that this remedy is in addition to all other remedies
vested in Landlord.
In the event of a sale of the building of which the Demised Premises
are a part, Landlord shall have the right to transfer the security to the
purchaser, and Landlord and Landlord's agent shall be released by Tenant from
all liability for the return of such security, and Tenant shall look to the new
landlord solely for the return of said security. It is agreed that this
provision shall apply to every transfer or assignment made of the security to a
new purchaser or new landlord. The security deposited under this Lease shall not
be mortgaged, assigned, or encumbered by Tenant without the written consent of
Landlord. In the event of any authorized assignment or sublease of this Lease by
Tenant, the said security deposit shall be deemed to be held by Landlord as a
deposit made by the assignee, and Landlord shall have no further liability with
respect to the return of said security deposit to Tenant. Tenant shall not be
entitled to interest on such security.
25. CONDITION OF THE DEMISED PREMISES: Subject to any other agreement
between Landlord and Tenant relating to the renovation, repair and up-fitting of
the Demised Premises for use as professional office space by Tenant as
contemplated by this Lease, Tenant has inspected and accepts the Demised
Premises in the same condition they are in at the time of commencement of the
term of this Lease.
26. FAILURE TO PERFORM COVENANT: Any failure on the part of either
party to this Lease to perform any obligation hereunder, and any delay in doing
any act required hereby shall be excused if such failure or delay is caused by
any strike, lockout, governmental restriction or any other similar cause beyond
the control of the party so failing to perform, to the extent and for the period
that such continues, save and except that the provisions of this Section shall
not excuse a non-payment of rent or other sums due hereunder on its due date.
27. CONSTRUCTION OF LEASE: The word "Landlord" as used herein means the
present owner of the Office Center and any transferee thereof. Any such
transfer, sale or sales of the Office Center, or any interest therein, shall be
subject to this Lease, and it shall be deemed and construed without further
agreement that the purchaser at such sale has assumed and has agreed to carry
out any and all obligations of a Landlord under this Lease so long as the
purchaser shall be the owner of the Office Center. Words of any gender used in
this Lease shall be held to include any other gender, and words in the singular
number shall be held to include the plural when the sense requires.
28. RELOCATION: In the event Landlord determines to utilize the Demised
Premises for other purposes during the Term, Tenant agrees to relocate to other
space in the building to be designated by Landlord, provided such other space is
of equal or larger size than the Demised Premises, and has substantially the
same number of exterior windows and other amenities. Landlord shall pay all
reasonable out-of-pocket expenses incurred by Tenant in any such relocation,
including the expenses of moving and reconstruction of all Tenant and Landlord
improvements. In the event of any such relocation, this Lease shall continue in
full force and effect without any change in the terms or other conditions, but
with the new location substituted for the old location described in Section A of
this Lease.
12
29. COMPLIANCE WITH LAWS, RULES AND REGULATIONS: Tenant, at Tenant's
expense, shall comply with all laws, ordinances, orders, rules and regulations
of state, Federal, municipal or other agencies or bodies having jurisdiction to
the use, condition and occupancy of the Demised Premises.
30. LANDLORD'S LIEN: As additional security for payment of rent,
damages and all other payments required to be made by this Lease, Tenant hereby
grants to Landlord a lien upon all property of Tenant now or subsequently
located upon the Demised Premises. If Tenant abandons or vacates any substantial
portion of the Demised Premises or is in default in the payment of any rentals,
damages or other payments required to be made by this Lease, Landlord may enter
upon the Demised Premises, by picking or changing locks, if Landlord deems
necessary, and take possession of all or any part of the personal property of
Tenant, and sell all or any part of the personal property at a public or private
sale, in one or successive sales, with or without notice, to the highest bidder
for cash and, on behalf of Tenant, sell and convey all or part of the personal
property to the highest bidder, delivering all of Tenant's title and interest in
the personal property sold. The proceeds of any sale shall be applied by
Landlord to the reasonable costs, expenses and attorney's fees incurred as a
result of any sale, and then toward the payment of all sums then due by Tenant
to Landlord under the terms of this Lease, any excess remaining shall be paid to
Tenant or any other person entitled thereto by law.
31. UNIFORM COMMERCIAL CODE: This Lease constitutes a security
agreement within the meaning of the Uniform Commercial Code as adopted and
amended, from time to time, under the laws of the State of South Carolina, in
which the Demised Premises is situated, and Landlord, in addition to all other
rights prescribed in this Lease, shall have all of the rights, title, liens and
interests in and to Tenant's property now or hereafter located upon the Demised
Premises which are granted to a secured party as that term is defined under
South Carolina law, to further secure the payment to Landlord of any and all
amounts due and payable, or to be due and payable by Tenant to Landlord. Tenant
will, upon request, execute and immediately deliver to Landlord a financing
statement as required by South Carolina law for the purpose of perfecting
Landlord's security interest under this Lease. In the event Tenant fails or
refuses to comply with any such reasonable request with five (5) business days
of any such request, Tenant hereby appoints Landlord its attorney-in-fact during
the Term of this Lease to execute on behalf of Tenant, and in Tenant's name, any
financing statement, refinancing statement, continuation statement, termination
statement or other forms as may be necessary to effect Tenant's compliance with
this Section.
32. ACTS OF GOD: FORCE MAJEURE: Landlord shall not be required to
perform any covenant or obligation in this Lease or be liable in damages to
Tenant so long as the performance or nonperformance of the covenant or
obligation is delayed, caused by or prevented by an act of God, or force
majeure.
33. ESTOPPEL CERTIFICATES: Tenant agrees to furnish promptly, from time
to time, upon request of Landlord or any mortgage lender, a statement
certifying, if applicable, that Tenant is in possession of the Demised Premises,
the Demised Premises are acceptable for Tenant's occupancy thereof, the Lease is
in full force and effect, the Lease has or has not been amended or modified,
13
Tenant claims no present charge, set-off, lien or against rent or any other sums
payable by Tenant tinder this Lease, the rent is not prepaid for more than one
month in advance, there is no existing default by reason of some act or omission
by Landlord, and such other matters as may be reasonably required by Landlord or
any mortgage lender. In the event that Tenant fails or refuses to comply with
any such reasonable request by Landlord or any mortgage lender within five (5)
business days of any such request, Tenant hereby appoints Landlord as its
attorney-in-fact during the Term of this Lease to execute on behalf of Tenant,
and in Tenant's name, any certificates deemed necessary as contemplated by this
paragraph.
34. GOVERNING LAW: The interpretation of this Lease, compliance with
its terms, conditions and covenants, and rights and remedies of the parties as
set forth in this Lease, and any amendments, modifications or renewals of this
Lease shall be governed in accordance with the laws of the State of South
Carolina. The parties hereto verify that this Lease has been entered into within
the State of South Carolina, and that performance of the terms, conditions and
covenants of this Lease is within the State of South Carolina.
35. NOTICES: Any notice, request, approval, consent, demand or other
communication shall be effective upon the first to occur of the following: (i)
upon receipt by the party to whom such notice, request, approval, consent,
demand or other communication is being given; or (ii) three (3) business days
after being duly deposited in the United States mail, certified or registered,
return receipt requested, and addressed as follows:
Landlord: Tenant:
-------- ------
Ten Oaks Office Center Integrated Business Systems and Services, Inc.
Suite A, 0000 Xxxx Xxxx Xxxxx X, 0000 Xxxx Xxxx
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attn.: Xxxxxxx Xxxxxx, III Attn.: Xxxxxx X. Xxxxxxxxxx
The parties hereto may change their respective addresses by notice in writing
given to the other party to this Lease.
36. OPTION TO LEASE; RIGHT OF FIRST REFUSAL:
(a) Option. Tenant shall have the exclusive option to lease all of the
approximately 4,775 square feet of unleased space identified as Spaces F1 & F2
on Exhibit 1 attached hereto (the "Option Premises"). To exercise such
option(s), Tenant shall provide written notice to Landlord of such decision to
Landlord not later than eighteen months after the Commencement Date. Tenant
shall lease the Option Premises at the base rental rate of $4.00 per square foot
and upon the other terms and conditions contained in this Lease, and for a term
co-terminus with this Lease. The rent for the Option Premises shall commence on
the earlier to occur of (i) one hundred twenty (120) days after Tenant exercises
its option to lease the Option Premises, or (ii) on the date Tenant occupies the
Option Premises, subject to reasonable extensions due to delays in upfitting
beyond the control of Tenant. If Tenant shall fail to exercise the option rights
as described herein, then the Option Premises shall become subject to the terms
and conditions described in Paragraph 36(b) below.
14
(b) Right of First Refusal. Should Landlord receive an offer from an
unaffiliated third party to lease any and or a combination of any of the spaces
identified as Space C, Space D and Space E on Exhibit 1 attached hereto,
Landlord shall notify Tenant thereof in writing setting forth the terms and
conditions of such offer, and offering to lease such premises (the "Refusal
Premises") to Tenant upon the financial terms contained in the third party
offer. Tenant shall have forty five (45) business days to accept or reject such
offer. If Tenant rejects such offer or fails to respond within said forty five
(45) business day period, then Landlord shall be entitled to rent the Refusal
Premises to such third party on such terms and conditions not materially more
favorable than the terms and conditions offered to Tenant. If Tenant accepts
said offer, then Tenant shall lease the Refusal Premises upon the financial
terms contained in said offer, and upon the other terms and conditions as
contained in this Lease and for a term co-terminus with this Lease. The rent for
the Refusal Premises shall commence on the earlier to occur of (i) one hundred
twenty (120) days after Tenant accepts such offer for the Refusal Premises, or
(ii) on the date Tenant occupies the Refusal Premises, subject to reasonable
extensions due to delays
IN WITNESS WHEREOF, the parties hereto have executed this Lease
Agreement and Right of First Refusal to be effective as of the day and year
first above written.
IN THE PRESENCE OF: LANDLORD:
--------
PINEBELT, LLC
By: /s/ Xxxxxxx Xxxxxx III
------------------------ ------------------------
(Witness as to Landlord) Xxxxxxx Xxxxxx III
Its: Managing Member
------------------------
(Witness as to Landlord)
TENANT:
-------
INTEGRATED BUSINESS SYSTEMS AND
SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------ --------------------------
(Witness as to Tenant) Xxxxxx X. Xxxxxxxxxx
Its: Chief Executive Officer
------------------------
(Witness as to Tenant)
15
SCHEDULE A TO LEASE AGREEMENT
-----------------------------
XXX XXXX XXXXXX XXXXXX Xxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxx xx Xxxxx Xxxxxxxx
The following schedule comprises an integral part of the Lease
Agreement between Landlord and Tenant hereinafter named dated "October 8, 2002
(hereinafter referred to as the "Lease"). Unless the context otherwise requires,
the terms described below shall have the meanings ascribed to them and shall be
governed and construed in accordance with the terms of the Lease. Should there
be any inconsistencies between the Lease and this Schedule A, then the terms and
provisions of this Schedule A shall control.
LANDLORD: Pinebelt, LLC
Xxxxx X, 0000 Xxxx Xxxx
Xxxxxxxx, XX 00000
TENANT: Integrated Business Systems and Services, Inc.
000 Xxxxxx Xxx, Xxxxx 000
Xxxxxxxx, XX 00000
BUILDING: The Ten Oaks Office Center building located at
0000 Xxxx Xxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000
DEMISED PREMISES: 7,400 usable square feet designated as Suite E of the
Ten Oaks Office Center and as more particularly
described on the Floor Plan attached to the Lease and
made a part thereof as Exhibit 1.
RENTABLE AREA: 7,400 Square Feet
PRO-RATA SHARE: The Demised Premised contains 7,400 usable square
feet, and the total usable area of the Building is
approximately 57,000 square feet. Tenant's Pro-Rata
Share is 12.98%
TERM: 120 months; Commencement Date: March 1, 2003, as the
same may be extended pursuant to the provisions of
the Lease.
RENT: Base Rental of $36,000 annually, payable in monthly
payments of $3,000.
COMMON AREA
CHARGES: Initial 12 months of Lease Term (projected):
$ 1.00 annual gross per sq. foot of Demised Premises
$ .083 monthly gross per sq. foot of Demised Premises
SECURITY: Tenant shall deliver a Security Deposit to Landlord in
the total amount of $50,000.00 based on the following
payment schedule:
-- $10,000 on or before December 15, 2002
-- $10,000 on or before January 15, 2003
-- Four installments of $7,500 each every 30 days
thereafter
16
