EXHIBIT 10.1
OFFICE LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), made and entered into as of MARCH 16 , 2000,
by and between COMMERCE STREET ASSOCIATES, a Tennessee partnership ("Landlord"),
and TMP, INC., a TENNESSEE CORPORATION ("Tenant"),
WITNESSETH:
1. DEMISE OF PREMISES. Landlord hereby demises the Premises (as hereafter
described) to Tenant and covenants that Tenant shall peaceably and quietly hold
and enjoy the Premises throughout the term on and subject to all the provisions
and conditions of this Lease; and Tenant hereby accepts such demise of the
Premises from Landlord.
(a) The "Premises" consist of the space containing approximately 12,135
rentable square feet located in the building containing approximately 225,276
rentable square feet known as THE COMMERCE CENTER (the "Building") on a tract of
land located at 000 XXXXXXXX XXXXXX, XXXXXXXXX, XXXXXXXXX, more particularly
described on EXHIBIT A attached hereto (together with the Building, the
"Property"). The Premises are shown outlined in red on the floor plan attached
hereto as EXHIBIT B.
(b) As long as Tenant is entitled to possession of the Premises, Tenant
shall have the nonexclusive right to use any parking areas, driveways,
sidewalks, and other common facilities of the Property as they may exist from
time to time.
2. TERM. The term of this Lease shall begin on the Commencement Date and end
on the last day of the one hundred twenty days (120) full calendar month
thereafter. Thus, unless the Commencement Date falls on the first day of a
calendar month, the term will also include the initial partial calendar month
immediately following the Commencement Date. The "Commencement Date" shall be
the earlier of (a) the date of substantial completion of any Tenant Improvements
to be constructed by Landlord pursuant to the Work Letter attached hereto as
EXHIBIT C, or (b) the date on which Tenant first begins to occupy the Premises.
On the Commencement Date, Tenant shall execute a written agreement to confirm
the actual calendar date on which the Commencement Date occurs. Tenant shall
take possession of the Premises on the Commencement Date and surrender the
Premises to Landlord at the expiration of the term or earlier termination of
this Lease free of waste and in as good a condition as on the Commencement Date
except for reasonable wear and tear and repairs that are Landlord's
responsibility under this Lease. By taking possession of the Premises, Tenant
shall have agreed that the Premises are suitable for their intended purpose and
that the Premises and all other parts of the Property are in good and
satisfactory condition, free of material defects.
3. RENT. Throughout the term of this Lease, Tenant shall pay rent to Landlord
in accordance with the following provisions: 1.
(a) Tenant shall pay minimum annual rent (the "Minimum Rent") in monthly
installments in advance on or before the first day of each calendar month as
reflected in EXHIBIT D hereto.
(b) Additional Rent (herein so called) shall be calculated as provided in
EXHIBIT E hereto. For each calendar year after the year in which the
Commencement Date occurs, Landlord shall furnish Tenant a written estimate of
Additional Rent for the applicable calendar year. Estimates of Additional Rent
shall be made by Landlord on a reasonable basis determined by Landlord.
Throughout the term of this Lease, Tenant shall pay estimated Additional Rent in
advance on or before the first day of each month in monthly installments equal
to one-twelfth (1/12) of the estimated Additional Rent for the applicable
calendar year. Pending receipt of Landlord's written estimate of Additional Rent
for any calendar year, monthly installments of estimated Additional Rent shall
continue to be paid in the same amount as in the prior calendar year. By April
30 of each calendar year or as soon as possible thereafter, Landlord shall
deliver to Tenant a written statement reflecting any difference between
estimated Additional Rent paid and actual Additional Rent
accrued for the prior calendar year (or in the case of any partial calendar year
in which the term of this Lease begins or ends, a prorated portion of such
Additional Rent based on actual days elapsed during the portion of term
occurring in that calendar year). Tenant shall pay Landlord the total amount of
any balance of Additional Rent due shown on such annual statement within thirty
(30) days after receipt of the statement. Landlord shall refund any overpayment
of Additional Rent by Tenant shown on such annual statement within thirty (30)
days after delivery of the statement, or Landlord, at its option, may credit the
amount of any such overpayment against the installment(s) of Minimum Rent and
Additional Rent due for the remainder of the then current calendar year. Tenant
may examine the accounting records supporting the amount of Additional Rent
reflected on such annual statement within sixty (60) days after receipt of the
statement, such examination to occur after reasonable advance written notice to
Landlord during normal business hours at the place where Landlord's accounting
records are normally kept.
(c) The installments of Minimum Rent and Additional Rent for any initial
partial calendar month shall be prorated based on actual days elapsed and shall
be paid in advance on the Commencement Date.
(d) Except as expressly provided to the contrary in this Lease,
installments of Minimum Rent and Additional Rent shall be payable without
notice, demand, reduction, setoff, or other defense. Installments of Minimum
Rent and Additional Rent and payments of other sums owing to Landlord pursuant
to this Lease shall be made to Landlord at 000 XXXXXXXX, XXXXXXXXX, XXXXXXXXX
00000, or at whatever other account or address that Landlord may designate from
time to time by written notice to Tenant.
(e) If any installment of Minimum Rent or Additional Rent, or any other sum
due and payable pursuant to this Lease, remains unpaid for more than ten (10)
days after the date due, Tenant shall pay Landlord a late payment charge equal
to the greater of (i) Fifty and No/100 Dollars ($50.00), or (ii) five percent
(5%) of the unpaid installment or other payment. The late payment charge is
intended to compensate Landlord for administrative expenses associated with
responding to late payment, and shall not be considered liquidated damages or
interest. All rent and other sums of whatever nature owed by Tenant to Landlord
under this Lease that remain unpaid for more than ten (10) days shall bear
interest from the date due until paid at the lesser of (iii) five percent (2.5%)
in excess of the prime or general reference rate of interest of Bank of America
of North Carolina, N.A. (or its successors) in effect from time to time, or (iv)
the maximum interest rate per annum allowed by law.
(f) Tenant has paid to Landlord upon signing this Lease AN AMOUNT EQUAL TO
THE FIRST MONTH'S RENT ($---) (the "Deposit") as security for Tenant's
performance of all obligations hereunder. The Deposit may be held in whatever
lawful manner Landlord may choose, and Landlord shall be entitled to any
interest as it may accrue on the Deposit. In the Event of Default by Tenant,
Landlord may, at its option, apply all or any part of the Deposit on account of
any rent or other sums owing by Tenant, and thereupon Tenant shall immediately
redeposit with Landlord the amount so applied in order that Landlord will always
have the full Deposit on hand throughout the term of this Lease. The Deposit
shall never constitute liquidated damages in the Event of Default by Tenant.
Upon full payment and performance of this Lease by Tenant (including without
limitation, final payment of any Additional Rent owed by Tenant), Landlord shall
refund to Tenant any balance of the Deposit remaining after deducting any rent
or other sums owed by Tenant pursuant to this Lease.
4. USE OF PREMISES; COMPLIANCE WITH LEGAL REQUIREMENTS. Tenant shall use the
Premises only for general office purposes, including a bank retail operation,
and for no other purposes. Tenant shall not commit or allow waste to be
committed in the Premises or elsewhere on the Property, and shall not do or
allow to be done in the Premises or elsewhere on the Property anything that
shall constitute a nuisance or detract in any way from the reputation of the
Property as a first-class real estate development. Tenant shall allow no noxious
or offensive odors, fumes, gases, smoke, dust, steam or vapors, or any loud or
disturbing noise or vibrations to originate in or be emitted from the Premises.
Tenant shall comply with all laws, ordinances, and regulations of any
governmental authority relating to Tenant's use or occupancy of the Premises,
with the requirements of insurance underwriters or rating bureaus applicable to
the Property, and with the following requirements:
(a) Tenant may use generally available office equipment and supplies that
contain small quantities or low concentrations of Hazardous Materials so long as
they are properly used and stored within the Premises, properly disposed of by
Tenant at a location other than the Property, and do not require any
governmental license or permit. Except as permitted in the preceding sentence,
no use, generation, storage, treatment, transportation, or disposal of any
Hazardous Material shall occur or be permitted to occur in connection with
Tenant's use and occupancy of the Premises or any other portion of the Property.
"Hazardous Material" shall mean any toxic or hazardous waste, material, or
substance or any other substance that is prohibited, limited, or regulated as a
health or environmental hazard by any governmental or quasi-governmental
authority, or that even if not so regulated, could or does pose a hazard to the
environment or to the health and safety of the occupants of the Building or
others.
(b) No portion of the Premises or the Property shall be used or occupied
for anything that is extrahazardous on account of fire or other risks, that
causes an increase in the premiums payable by Landlord for any of its insurance
with respect to the Property, or that causes any underwriter to deny insurance
coverage to Landlord.
(c) Tenant shall comply with all requirements of the Americans with
Disabilities Act and implementing regulations applicable to its use and
occupancy of the Premises other than requirements relating solely to the
physical structure of (i) the Tenant Improvements, (ii) the roof, foundation,
and exterior walls of the Building, and (iii) the common use areas of the
Property.
(d) Tenant has previously been furnished with a copy of any applicable
restrictive covenants relating to the Building, and Tenant shall abide by those
restrictions in connection with its use and occupancy of the Premises.
(e) Landlord shall have the right to prescribe and modify reasonable rules
for the use of the Property and leased premises within the Building. A copy of
Landlord's current Building rules is attached hereto as EXHIBIT F. In the event
of any conflict with the Building rules, the provisions in the main body of this
Lease control.
(f) Tenant shall ensure that its agents, employees, and contractors comply
with this Paragraph, and shall use reasonable efforts to ensure that its
invitees and customers comply with this Paragraph.
5. TAXES PAYABLE BY TENANT. Tenant shall pay any documentary stamp tax, sales or
use tax, excise tax, or any other tax, assessment, or charge (other than any
income, franchise, or similar tax imposed directly on Landlord or Landlord's net
income from the Property) required to be paid on account of (a) the execution of
this Lease, (b) the use or occupancy of the Premises by Tenant, (c) the rent or
other payments due hereunder, or (d) Tenant's trade fixtures, equipment,
machinery, inventory, merchandise or other personal property located on the
Premises and owned by or in the custody of Tenant. All such taxes, assessments,
and charges shall be paid promptly as they become due prior to delinquency.
Tenant shall provide Landlord with copies of paid receipts for such taxes,
assessments, or charges promptly after payment of same. Tenant shall also pay on
written demand from Landlord any increase in ad valorem taxes or assessments on
the Property as a result of alterations, additions, or improvements made by or
on behalf of Tenant other than the initial Tenant Improvements.
6. INSURANCE COVERAGE; WAIVER OF SUBROGATION.
(a) Landlord shall maintain property and casualty insurance on the
Building, with extended coverage or such other additional coverage as Landlord
shall elect, in an amount of not less than eighty percent (80%) of the
replacement cost of the Building; provided, however, if the premium for any
insurance carried by Landlord with respect to the Property increases as the
result of Tenant's use or occupancy or as the result of any act or omission of
Tenant or its agents, employees, or contractors, Tenant shall pay Landlord the
amount of any such increase on written demand. Payment of such increased
premiums shall not excuse any noncompliance with this Lease by Tenant that may
have caused the increased premiums.
(b) Tenant shall maintain and pay for property and casualty insurance with
extended coverage on all trade fixtures, equipment, machinery, merchandise, or
other personal property belonging to or in the custody of Tenant in the Premises
or otherwise on the Property. Tenant shall maintain and pay for commercial
general liability insurance (occurrence coverage) in the amount of not less than
$1,000,000.00, with a company licensed to do business in the state in which the
Property is located and reasonably acceptable to Landlord, naming Landlord as an
additional insured, providing contractual liability coverage, and containing an
undertaking by the insurer not to cancel or change coverage materially without
first giving thirty (30) days' written notice to Landlord. Tenant shall furnish
Landlord certificates of insurance evidencing the required commercial general
liability insurance coverage prior to the Commencement Date and thereafter prior
to each policy renewal date.
(c) Each of Landlord and Tenant hereby waives all claims or other rights of
recovery against the other and its agents, employees, and contractors for any
loss or damage to the Premises or other portions of the Property, or to any
personal property or fixtures thereon, by reason of fire or other insurable risk
of loss (whether or not actually insured), regardless of cause or origin,
including negligence, gross negligence, or misconduct of the other party or its
agents, employees, or contractors, and covenants that no insurer shall hold any
right of subrogation against such other party. Landlord and Tenant shall each
advise its insurers of the foregoing waiver and such waiver shall be a part of
the respective policies of property and casualty insurance maintained by
Landlord and Tenant.
7. SERVICES FURNISHED BY LANDLORD. So long as Tenant is entitled to possession
of the Premises during the term, Landlord shall furnish the following services,
which shall be reasonably consistent in quality with similar landlord services
at comparable office buildings in the same market area as the Building:
(a) Heating and air conditioning in season to provide reasonably
comfortable temperatures in the interior of the Premises (unless mandated
otherwise by law) Monday through Friday from 7:00 a.m. to 6:00 p.m. and
Saturdays from 8:00 a.m. to 1:00 p.m., exclusive of holidays observed by
national banks in the city in which the Property is located. At other times,
heating and air conditioning will be furnished at a Building standard charge
(payable by Tenant to Landlord on written demand by Landlord) and on Building
standard terms relating to advance notice, minimum hours, minimum zones, and
other matters. If office machines, computers, or other equipment used in the
Premises adversely affect Landlord's ability to maintain reasonably comfortable
temperatures or require excessive use of air conditioning equipment to maintain
such temperatures, Landlord shall have the right to install supplemental air
conditioning units in the Premises, and the cost thereof, including the cost of
installation and the cost of operation and maintenance, shall be paid by Tenant
to Landlord on written demand.
(b) So long as the Premises are kept in reasonable order by Tenant,
reasonable janitorial and general cleaning services from Monday through Friday,
exclusive of holidays observed by national banks in the city in which the
Property is located.
(c) Electricity for routine lighting and the operation of general office
machines such as typewriters, dictating equipment, desk model adding machines,
personal computers, copying machines, and the like that use 110-volt, 20 ampere
electrical supply, and any equipment using a higher voltage or current shall not
be connected to the electrical system in the Building. Tenant shall not use any
electrical equipment that in Landlord's reasonable opinion, will overload or
otherwise damage electrical circuits or equipment in the Building, and Tenant
shall make no changes in fuses, circuit breakers, or other components of the
electrical system in the Building. Tenant shall not use any electrical equipment
of a type or quantity that in Landlord's reasonable opinion, will consume
excessive electrical power in comparison to that typically consumed by general
office use. If Tenant does so, Landlord may elect to install electrical meters
to measure such excessive power consumption, and all associated costs (including
excess electrical power consumption, equipment and installation costs, and
maintenance, replacement, and repair costs) shall be paid by Tenant to Landlord
on written demand.
(d) Passenger elevator service to all floors of the Building.
(e) Reasonable amounts of hot and cold running water to lavatories and
toilets, including first floor, in or appurtenant to the Premises.
(f) Routine maintenance and repair of the structure of the Building and
general Building mechanical, electrical, and plumbing systems and of the
interior and exterior common areas of the Building, including the Building
ground floor lobby, exterior lighting, landscaping, and irrigation, and parking,
driveways, and sidewalks of the Property. If the Premises, or any other part of
the Property is damaged by any act or omission of Tenant or its agents,
employees, or contractors, then Landlord shall repair such damage. Any cost of
such repairs in excess of insurance proceeds actually received by Landlord shall
be paid by Tenant to Landlord on written demand, and Landlord shall not be
obligated to begin or continue repair work until funds for such purposes are
received from insurance proceeds or from Tenant.
(g) If and to the extent Landlord chooses, common area security services
and equipment. Landlord has no duty to provide security, and no duty to so shall
be deemed to have been assumed by Landlord's furnishing any security services or
equipment. Tenant waives and releases all claims against Landlord and its
agents, employees, and contractors to the extent based on any wrongful,
negligent, or other failure to furnish security services or equipment or on any
wrongful, negligent, or other act or omission in connection with any security
services or equipment furnished. Tenant shall not be deemed to have been evicted
as the result of, nor shall Landlord be liable for any loss or damage to the
property of Tenant located in the Premises or for any loss of business or
profits of Tenant or other damages of any kind arising from (i) any failure of
Landlord to provide any of the services to be furnished by Landlord pursuant to
this Paragraph as the result of circumstances outside of Landlord's reasonable
control, (ii) any interruption or unavailability of utilities or any stoppage,
leaking, bursting, or other defect or failure in the utility lines, pipes,
wires, and other facilities serving the Premises as the result of circumstances
outside of Landlord's reasonable control, or (iii) any repairs, maintenance,
alterations, or improvements to any portion of the Property made in connection
with correcting any of the foregoing circumstances or providing the services to
be furnished by Landlord pursuant to this Paragraph. If as the result of any of
the foregoing, the Premises remain untenantable for more than ten (10) days
after written notice from Tenant to Landlord specifying the circumstances giving
rise to such untenantability, then as Tenant's sole and exclusive remedy,
Minimum Rent and Additional Rent shall xxxxx for so long thereafter as the
Premises remain untenantable. Such abatement of Minimum Rent and Additional Rent
shall not extend the term of this Lease.
8. ALTERATIONS AND IMPROVEMENTS. Tenant shall make no alterations, additions, or
improvements to the Premises or the Property without the prior written consent
of Landlord in each instance, which consent shall not be unreasonably withheld.
Tenant shall comply with all reasonable requirements of Landlord relating to
approval of plans and specifications, compliance with building codes and other
laws, protection of the integrity, condition, and proper functioning of the
roof, walls, foundations, and other structural elements of the Building and of
the Building's mechanical, electrical, and plumbing systems and equipment,
employment and bonding of contractors, insurance, aesthetic considerations, and
other relevant matters as determined by Landlord. All alterations, additions or
improvements, including without limitation all partitions, walls, railings,
carpeting, floor and wall coverings, and other fixtures (excluding Tenant's
trade fixtures) made by, for, or at the direction of Tenant shall become the
property of Landlord when made, and shall remain upon the Premises at the
expiration or earlier termination of this Lease. Landlord reserves the right to
make structural and nonstructural alterations, additions, and improvements to
the Property, to re-stripe parking areas and otherwise control parking and
traffic movement on the Property, and to change the name or street address of
the Property.
9. TRADE FIXTURES AND OTHER PERSONAL PROPERTY. Any trade fixtures installed in
the Premises at Tenant's expense shall remain Tenant's personal property, and
Tenant shall have the right at any time during the term of this Lease to remove
such trade fixtures (provided that any damage to the Building or Premises caused
by such removal shall immediately be repaired by Tenant). On or before the
expiration of the term or earlier termination of this Lease, Tenant shall remove
all trade fixtures and other personal
property of Tenant from the Premises, repair any damage to the Building or
Premises caused by removal of its trade fixtures and other personal property,
and leave the Premises in a clean condition free of waste, refuse, or debris. If
Tenant fails to do so, Landlord may retain, store, or dispose of such trade
fixtures and other personal property however Landlord chooses without liability
of any kind to Tenant, repair any damage to the Building or Premises caused by
removal of such trade fixtures and other personal property, and clean the
Premises and properly dispose of all such waste, refuse, or debris; and all
costs and expenses incurred by Landlord in connection with the foregoing shall
be payable by Tenant to Landlord on written demand. The following property shall
be considered part of the permanent improvements to the Building owned by
Landlord, not trade fixtures of Tenant, and shall not be removed from the
Premises by Tenant under any circumstances: (a) HVAC systems, fixtures, or
equipment; (b) lighting fixtures or equipment; (c) carpeting, other permanent
floor coverings, or raised flooring; (d) paneling or other wall coverings; (e)
plumbing fixtures and equipment; and (f) permanent shelving.
10. SIGNS AND ADVERTISING. Tenant shall be furnished a single name
identification sign in Building standard graphics at the main entrance door to
the Premises. If Landlord provides a Building directory, Tenant shall be
furnished a single listing of its name on the directory, and any changes or
additional directory listing shall be furnished (subject to availability of
space) for a Building standard charge. No other signs, graphics, or advertising
that are visible or audible outside the Premises (except as stated in Exhibit
G(4)) shall be permitted without Landlord's prior written consent.
11. LANDLORD'S RIGHT OF ENTRY. Landlord and persons authorized by Landlord may
enter the Premises at any time without notice to Tenant in the event of
emergency involving possible injury to property or persons in or around the
Premises or the Building or to provide routine janitorial services. Landlord and
persons authorized by Landlord shall also have the right to enter the Premises
at all reasonable times and upon reasonable notice for the purposes of making
repairs or connections, making alterations, additions, or improvements to the
Building, installing utilities, providing services to the Premises other than
routine janitorial service, providing services for other tenants, making
inspections, or showing the Premises to prospective purchasers or lenders of the
Property. During the last six (6) months of the term, Landlord and persons
authorized by Landlord shall have the right at reasonable times and upon
reasonable notice to show the Premises to prospective tenants.
12. CASUALTY DAMAGE. If any part of the Premises is damaged by fire or other
casualty, Tenant shall give prompt notice to Landlord. If damage by fire or
other casualty renders any substantial part of the Premises untenantable and the
repair time to restore the Premises to a tenantable condition will exceed one
hundred twenty (120) days (or will exceed thirty (30) days in the case of damage
occurring during the last twelve (12) months of the term), or if any part of the
Property is so damaged that in Landlord's judgment, substantial alteration or
reconstruction is required (whether or not the Premises have been damaged by the
casualty), or if any mortgagee of the Property requires application of the
insurance proceeds to the reduction of the mortgage debt, or if any material
uninsured loss occurs, Landlord may, at its option, terminate this Lease by so
notifying Tenant in writing within sixty (60) days after the date of the
casualty. If the damage by fire or other casualty renders any substantial part
of the Premises untenantable and if the repair time to restore the Premises to a
tenantable condition will exceed one hundred twenty (120) days (or will exceed
thirty (30) days in the case of damage occurring during the last twelve (12)
months of the term), Tenant may elect to terminate this Lease by so notifying
Landlord in writing within sixty (60) days after the date of the casualty. If
the Lease is not so terminated by Landlord or Tenant, Landlord shall promptly
begin and diligently pursue the work of restoring the Premises (including the
initial Tenant Improvements) to substantially their former condition as soon as
reasonably possible. Landlord shall not, however, be required to restore any
alterations, additions, or improvements other than the initial Tenant
Improvements or to spend any amount in excess of the insurance proceeds actually
received by Landlord as a result of the casualty. Landlord shall allow Tenant an
equitable abatement of Minimum Rent and Additional Rent during the time and to
the extent the Premises are untenantable as the result of fire or other
casualty, but such abatement shall not extend the term.
13. CONDEMNATION. If all or substantially all of the Property is condemned or is
sold in lieu of condemnation, then this Lease shall terminate on the date the
condemning authority takes possession. If less than all of the Property is so
condemned or sold (whether or not the Premises are affected) and in Landlord's
judgment, the Property cannot be restored to an economically viable condition,
or if any mortgagee of the Property requires application of condemnation
proceeds to the reduction of the mortgage debt, Landlord may terminate this
Lease by written notice to
Tenant effective on the date the condemning authority takes possession. If the
condemnation will render any substantial part of the Premises untenantable,
Tenant may terminate this Lease by written notice to Landlord effective on the
date the condemning authority takes possession of the affected part of the
Premises. If this Lease is not so terminated by Landlord or Tenant, Landlord
shall, to the extent feasible, restore the Premises (including the initial
Tenant Improvements) to substantially their former condition. Landlord shall
not, however, be required to restore any alterations, additions, or improvements
other than the initial Tenant Improvements or to spend any amount in excess of
the condemnation proceeds actually received by Landlord. Landlord shall allow
Tenant an equitable abatement of Minimum Rent and Additional Rent during the
time and to the extent the Premises are untenantable as the result of any
condemnation, but such abatement shall not extend the term. All condemnation
awards and proceeds shall belong exclusively to Landlord, and Tenant shall not
be entitled to, and expressly waives and assigns to Landlord, all claims for any
compensation for condemnation; provided, however, if Tenant is permitted by
applicable law to maintain a separate action that will not reduce condemnation
awards or proceeds to Landlord, Tenant shall be permitted to pursue such
separate action, but only for loss of business, moving expenses, and Tenant's
trade fixtures.
14. TRANSFERS BY TENANT.
(a) Without the prior written consent of Landlord in each instance, which
consent will not be unreasonably withheld, Tenant shall not do any of the
following (as used in this Paragraph, a "Transfer"): (i) assign this Lease or
any estate or interest therein, whether absolutely or collaterally as security
for any obligation; (ii) sublease any part of the Premises; (iii) permit any
assignment of this Lease or any estate or interest therein by operation of law;
(iv) grant any license, concession, or other right of occupancy for any part of
the Premises; or (v) permit the use of the Premises by any person other than
Tenant and its agents and employees. Permissible reasons for Landlord's
withholding consent include (but are not limited to) the following: (vi) the
proposed use of the Premises is not permitted by this Lease, would negatively
affect insurance or environmental risks, or would otherwise negatively impact
the Property; (vii) the creditworthiness of the proposed transferee is
unacceptable to Landlord in Landlord's good faith business judgment; (viii) the
proposed use or occupancy would require alterations or additions to the Premises
or other portions of the Property to comply with applicable laws, ordinances,
and regulations; (ix) the proposed transferee is a tenant or occupant of the
Property or any other rental real property owned by Landlord; and (x) if the
consent of any mortgagee is required, such mortgagee refuses to consent after
good faith efforts by Landlord to obtain such consent. Any attempted Transfer
without Landlord's prior written consent shall be void.
(b) If Tenant requests Landlord's consent to a Transfer, Landlord may
either (i) approve or disapprove the Transfer, or (ii) terminate this Lease with
respect to the part of the Premises included in the proposed Transfer. In
connection with each Transfer request by Tenant, Tenant shall obtain and furnish
to Landlord all documents, financial reports, and other information Landlord
reasonably requires in order to evaluate the proposed Transfer. Landlord shall
advise Tenant of Landlord's decision with respect to the requested Transfer
within thirty (30) days after receipt of Tenant's written Transfer request and
all requested supporting materials. If Landlord refuses to consent to a
requested Transfer, this Lease shall nonetheless remain in full force and
effect. The consent of Landlord to one requested Transfer shall never be
construed to waive the requirement for Landlord's consent to other Transfers,
nor shall any consent by Landlord or Transfer by Tenant discharge or release
Tenant from any obligations or liabilities to Landlord.
(c) All cash or other proceeds of any Transfer in excess of the Minimum
Rent and Additional Rent payable under this Lease shall be paid to Landlord, and
Tenant hereby assigns to Landlord all rights it might have or ever acquire to
the excess proceeds. No transferee of less than the entire Premises or Lease
shall ever be entitled to exercise any extension, expansion, or other option
provided in this Lease or to the return of the Deposit. If an Event of Default
by Tenant occurs after any Transfer, Landlord may, at its option, collect rent
directly from the transferee, and Tenant hereby authorizes any transferee to pay
rent directly to Landlord at all times after receipt of written notice from
Landlord. No direct collection by Landlord from any transferee shall constitute
a novation or release Tenant from its obligations and liabilities under this
Lease.
15. TRANSFERS BY LANDLORD. Landlord shall have the unrestricted right to sell,
assign, mortgage, encumber, or otherwise dispose of all or any part of the
Property or any interest therein. Upon sale or other disposition of the Property
to a party who assumes the obligations of Landlord under this Lease, Landlord
shall be released and discharged from obligations and liabilities thereafter
accruing under this Lease (including liability for the return of any Deposit),
and Tenant shall look solely to Landlord's successor for performance of the
Lease thereafter (including the return of any Deposit). Tenant's obligations
under this Lease shall not be affected by any sale,
assignment, mortgage, encumbrance, or other disposition of the Property by
Landlord, and Tenant shall attorn to anyone who thereby becomes the successor to
Landlord's interest in this Lease.
16. SUBORDINATION. This Lease is subject and subordinate to any and all
mortgages now or hereafter encumbering the Property. Such subordination shall be
self-operative without the necessity of any further instrument, but if requested
by Landlord, Tenant shall promptly execute and deliver to Landlord any
instrument Landlord may reasonably request to evidence the subordination of this
Lease to such mortgages or to acknowledge the assignment of this Lease as
additional security for such mortgages. If any person acquires the Property
through the exercise of remedies provided in a mortgage, Tenant shall
automatically attorn to and become the tenant of the new owner of the Property,
except that the new owner shall not be bound by any payment of rent for more
than one (1) month in advance or liable for any act or omission of Landlord that
occurred prior to the date the new owner acquired title and possession of the
Property. Upon request by any successor owner of the Property, Tenant shall
execute an instrument confirming the attornment required by this Lease.
17. ESTOPPEL CERTIFICATES; FINANCIAL STATEMENTS. Within ten (10) days after a
written request by Landlord, Tenant shall deliver an estoppel certificate in a
form supplied by or acceptable to Landlord certifying any facts that are then
true with respect to this Lease, including without limitation that this Lease is
in full force and effect, that no default exists on the part of Landlord or
Tenant, that Tenant is in possession, that Tenant has commenced payment of rent,
and that Tenant claims no defenses or offsets with respect to payment of rent
under this Lease. Likewise, within ten (10) days after a written request by
Tenant, Landlord shall deliver to Tenant an estoppel certificate covering such
matters of fact with respect to Landlord's obligations under the Lease as are
reasonably requested by Tenant. If Landlord intends to sell the Property or
obtain a loan secured by the Property, then within ten (10) days of Landlord's
written request, Tenant shall furnish Landlord its most recent available audited
or unaudited financial statements.
18. EVENTS OF DEFAULT BY TENANT. Each of the following constitutes an Event of
Default by Tenant (herein so called):
(a) Tenant fails or refuses to pay any installment of Minimum Rent,
Additional Rent, or any other sum payable under this Lease when due, and the
failure or refusal continues for at least ten (10) days after the due date.
(b) Tenant fails or refuses to comply with any provision of this Lease not
requiring the payment of money, and the failure or refusal continues for at
least thirty (30) days after written notice from Landlord; provided, however, if
any failure by Tenant to comply with this Lease cannot be corrected within such
30-day period solely as a result of nonfinancial circumstances outside of
Tenant's control, and if Tenant has commenced substantial corrective actions
within such 30-day period and is diligently pursuing such corrective actions,
such 30-day period shall be extended for such additional time as is reasonably
necessary to allow completion of actions to correct Tenant's noncompliance.
(c) Tenant's leasehold estate is taken on execution or other process of law
in any action against Tenant.
(d) Tenant fails or refuses to take occupancy of the Premises upon the
Commencement Date, or Tenant ceases to do business in, or abandons any
substantial part of, the Premises.
(e) Tenant or any guarantor of this Lease files a petition under any
chapter of the United States Bankruptcy Code, as amended, or under any similar
law or statute of the United States or any state, or a petition is filed against
Tenant or any such guarantor under any such statute and not dismissed with
prejudice within twenty (20) days of filing, or a receiver or trustee is
appointed for Tenant's leasehold estate or for any substantial part of the
assets of Tenant or any such guarantor and such appointment is not dismissed
with prejudice within sixty (60) days, or Tenant or any such guarantor makes an
assignment for the benefit of creditors.
19. LANDLORD'S REMEDIES. If an Event of Default by Tenant occurs, Landlord shall
be entitled then or at any time thereafter to do any one or more of the
following at Landlord's option:
(a) Enter the Premises if need be, and take whatever curative actions are
necessary to rectify Tenant's noncompliance with this Lease; and in that event
Tenant shall reimburse Landlord on written demand for any expenditures by
Landlord to effect compliance with Tenant's obligations under this Lease.
(b) Terminate this Lease, in which event Tenant shall immediately surrender
possession of the Premises to Landlord, or without terminating this Lease,
terminate Tenant's right to possession of the Premises; and in either case,
Landlord may re-enter and take possession of the Premises, evict Tenant and all
parties then in occupancy or possession, and if permitted under applicable law,
change the locks on the doors of the Premises without making keys to the changed
locks available to Tenant.
(c) If Landlord has terminated this Lease, recover all Minimum Rent,
Additional Rent, and other sums owing and unpaid under this Lease as of the date
of termination plus damages measured by the difference in the rental value of
the Premises if this Lease had been fully performed for the balance of the term
and the rental value of the Premises following the Event of Default by Tenant
(taking into account probable remodeling, lease commission, allowance,
inducement, and other costs of reletting).
(d) If Landlord has not terminated this Lease (whether or not Landlord has
terminated Tenant's right to possession of the Premises or actually retaken
possession), recover (in one or more suits from time to time or at any time
before or after the end of the term) all Minimum Rent, Additional Rent, and
other sums then or thereafter owing and unpaid under this Lease, together with
all costs, if any, incurred in reletting the Premises (including remodeling,
lease commission, allowance, inducement, and other costs), less all rent, if
any, actually received from any reletting of the Premises during the remainder
of the term. Landlord shall have the right following an Event of Default by
Tenant to relet the Premises on Tenant's account without terminating the Lease,
any such reletting to be on such terms as Landlord considers reasonable under
the circumstances. To the extent, in the manner, and on the conditions permitted
or required by applicable law, Landlord shall have the option to accelerate
payment of all future rent and other sums due from Tenant to the date the Event
of Default by Tenant occurred; and if Landlord actually receives the future rent
and other sums due from Tenant on such acceleration, then to the extent
necessary to avoid Landlord's retaining funds in excess of the rent and other
sums due from Tenant, Landlord shall thereafter refund to Tenant from time to
time any net proceeds of any reletting of the Premises during the remainder of
the term remaining after paying the costs of such reletting.
(e) Recover all costs of retaking possession of the Premises and any other
damages incidental to the Event of Default by Tenant.
(f) Terminate all of Tenant's rights to any allowances or under any
renewal, extension, expansion, refusal, or other options granted to Tenant by
this Lease.
(g) Exercise any and all other remedies available to Landlord at law or in
equity, including injunctive relief of all varieties.
If Landlord elects to retake possession of the Premises without terminating this
Lease, it may nonetheless at any subsequent time elect to terminate this Lease
and exercise the remedies provided above on termination of the Lease. Nothing
done by Landlord or its agents shall be considered an acceptance of any
attempted surrender of the Premises unless Landlord specifically so agrees in
writing. No re-entry or taking of possession of the Premises by Landlord, nor
any reletting of the Premises, shall be considered an election by Landlord to
terminate this Lease unless Landlord gives Tenant written notice of termination.
20. LANDLORD'S DEFAULT. It shall be an Event of Default by Landlord (herein so
called) only if Landlord fails to comply with any provision of this Lease and
the failure continues for at least thirty (30) days after written notice from
Tenant to Landlord (with a copy to Landlord's mortgagees if Tenant has been
notified in writing of the identities and addresses of such mortgagees);
provided, however, if any failure by Landlord to comply with this Lease cannot
be corrected within such 30-day period solely as a result of nonfinancial
circumstances outside of the control of Landlord, and if substantial corrective
actions have commenced within such 30-day period and are being diligently
pursued, such 30-day period shall be extended for such
additional time as is reasonably necessary to allow completion of actions to
correct Landlord's noncompliance.
21. TENANT'S REMEDIES. Except as otherwise provided in this Lease, in the Event
of Default by Landlord, Tenant shall be entitled to any remedies available at
law or in equity. Notwithstanding anything in this Lease to the contrary,
Landlord shall never be liable in the Event of Default by Landlord, under any
promise of indemnity in this Lease, or under any other provision of this Lease
for any loss of business or profits of Tenant or other consequential damages or
for punitive or special damages of any kind. None of Landlord's officers,
employees, agents, directors, shareholders, or partners shall ever have any
liability to Tenant under or in connection with this Lease. Tenant agrees to
look solely to Landlord's interest in the Property for the recovery of any
judgment against Landlord, and Landlord shall never be personally liable for any
judgment.
22. INDEMNIFICATION.
(a) Tenant shall indemnify and hold Landlord and its officers, employees,
agents, directors, shareholders, and partners harmless against any loss,
liability, damage, fine or other governmental penalty, cost, or expense
(including reasonable attorneys' fees and costs of litigation), or any claim
therefor, resulting from: (i) Tenant's noncompliance with or violation of any
law, ordinance, or other governmental regulation applicable to Tenant or its use
and occupancy of the Premises; (ii) the use, generation, storage, treatment, or
transportation, or the disposal or other release into the environment, of any
Hazardous Material by Tenant or its employees, agents, or contractors or as the
result of Tenant's use and occupancy of the Premises; or (iii) injury to persons
or loss or damage to property to the extent caused by any negligent or wrongful
act or omission of Tenant or its employees, agents, and contractors, but only to
the extent the loss or damage would not be covered by property and casualty
insurance of the type and amount required to be carried by Landlord pursuant to
this Lease (whether or not actually so carried).
(b) Landlord shall indemnify and hold Tenant and its officers, employees,
agents, directors, shareholders, and partners harmless against any loss,
liability, damage, fine or other governmental penalty, cost, or expense
(including reasonable attorneys' fees and costs of litigation), or any claim
therefor, resulting from: (i) Landlord's noncompliance with or violation of any
law, ordinance, or other governmental regulation applicable to Landlord, but
only to the extent such noncompliance or violation is not based on the use or
occupancy of the Premises by Tenant or on any other act or omission of Tenant or
its employees, agents, or contractors; (ii) the use, generation, storage,
treatment, or transportation, or the disposal or other release into the
environment, of any Hazardous Material by Landlord or its employees, agents, or
contractors; or (iii) injury to persons or loss or damage to property (other
than trade fixtures or personal property owned by, or in the custody of Tenant)
to the extent caused by any negligent or wrongful act or omission of Landlord or
its employees, agents, and contractors (other than any negligent or wrongful
omission to furnish security services or equipment or any negligent or wrongful
act or omission in connection with any security services or equipment
furnished). Nothing herein shall create any liability on the part of Landlord
for any acts or omissions by other tenants or occupants of the Property or their
agents, employees, contractors, or invitees.
23. PROTECTION AGAINST LIENS. Tenant shall do all things necessary to prevent
the filing of any mechanics', materialmen's, or other type of lien or claim
against Landlord or the Property by, against, through, or under Tenant or its
contractors. If any such lien or claim is filed, Tenant shall either cause the
same to be discharged within twenty (20) days after filing, or if Tenant in its
discretion and in good faith determines that such lien or claim should be
contested and if all required consents or approvals of Landlord's mortgagee are
obtained, Tenant shall furnish such security as may be necessary to prevent any
foreclosure proceedings against the Property during the pendency of such
contest. If Tenant fails to discharge such lien or claim within such 20-day
period or fails to furnish such security, then Landlord may at its election, in
addition to any other right or remedy available to it, discharge the lien or
claim by paying the amount alleged to be due or by giving appropriate security.
If Landlord discharges or secures such lien or claim, then Tenant shall
reimburse Landlord on written demand for all sums paid and all costs and
expenses (including reasonable attorneys' fees and costs of litigation) so
incurred by Landlord.
24. HOLDING OVER. If Tenant remains in possession of any part of the Premises
after the expiration of the term of this Lease, whether with or without
Landlord's consent, Tenant shall be only a tenant at will, the monthly
installments of Minimum Rent payable during such holdover period shall be one
hundred twenty five percent (125%) of the monthly installments of Minimum Rent
payable immediately preceding such expiration, and all Additional Rent and other
sums payable under this Lease shall continue to be due and payable. The
acceptance of any rent or other payments from Tenant with respect to any
holdover period shall not serve to extend the term or waive any rights of
Landlord, but Landlord may at any time refuse to accept rent or other payments
from Tenant, and may re-enter the Premises, evict Tenant and all parties then in
occupancy or possession, take possession of the Premises, and if permitted under
applicable law, change the locks on the doors of the Premises without making
keys to the changed locks available to Tenant. Tenant shall indemnify and hold
Landlord harmless against any loss, liability, damage, cost, or expense
(including reasonable attorneys' fees and costs of litigation), or any claim
therefor, related to Tenant's holding over, including liabilities to any person
to whom Landlord may have leased any part of the Premises.
25. ATTORNEYS' FEES. If an Event of Default by Tenant or an Event of Default by
Landlord occurs, the nondefaulting party shall be entitled to recover reasonable
attorneys' fees and any costs of litigation incurred in exercising and enforcing
its remedies under this Lease.
26. WAIVER. The failure of a party to insist upon the strict performance of any
provision of this Lease or to exercise any remedy for an event of default shall
not be construed as a waiver. The waiver of any noncompliance with this Lease
shall not prevent subsequent similar noncompliance from being or becoming an
event of default. No waiver shall be effective unless expressed in writing
signed by the waiving party. No waiver shall affect any condition other than the
one specified in the waiver and then only for the time and in the manner stated.
Landlord's receipt of any rent or other sums with knowledge of noncompliance
with this Lease by Tenant shall not be considered a waiver of the noncompliance.
No payment by Tenant of a lesser amount than the full amount then due shall be
considered to be other than on account of the earliest amount due. No
endorsement or statement on any check or any letter accompanying any check or
payment shall be considered an accord and satisfaction, and Landlord may accept
any check or payment without prejudice to Landlord's right to recover the
balance owing and to pursue any other available remedies.
27. LEASING COMMISSIONS. Each of Landlord and Tenant represents and warrants to
the other that it has not dealt with anyone claiming any entitlement to any
commission in connection with this leasing transaction except: RCM REALTY, LLC
("Broker"). Each of Landlord and Tenant agrees to indemnify and hold the other
harmless against any loss, liability, damage, cost, or expense (including
reasonable attorneys' fees and costs of litigation), or any claim therefor, for
any leasing or other commissions, fees, charges, or payments resulting from or
arising out of their respective actions in connection with this Lease except as
to Broker. Landlord shall indemnify and hold Tenant harmless against payment of
any leasing commission due Broker in connection with this Lease.
28. NOTICES. Any notice may be given by (a) depositing written notice in the
United States mail, postpaid and certified and addressed to the party at its
notification address under this Lease with return receipt requested, (b)
delivering written notice in person or by commercial messenger or overnight
private delivery service to the party at its notification address under this
Lease, or (c) by facsimile transmission of written notice to the party at its
notification address under this Lease. Unless actually received earlier, written
notice deposited in the mail in the manner described above shall be effective on
the third business day after it is so deposited, even if not received. Written
notice given in person or by commercial messenger, overnight private delivery,
or facsimile transmission in the manner described above shall be effective as of
the time of receipt at the destination address as evidenced by a receipt signed
by an employee of Tenant, by any confirmation of delivery provided by the
messenger or delivery service, or by facsimile confirmation of transmission. The
notification addresses of the parties are specified on the signature page(s) of
this Lease. Each party shall have the right to change its address by not less
then least ten (10) days' prior written notice to the other party.
29. MISCELLANEOUS.
(a) If requested by Landlord, Tenant shall furnish appropriate evidence of
the valid existence and good standing of Tenant and the authority of any parties
signing this Lease to act for Tenant. If
requested by Tenant, Landlord shall furnish appropriate evidence of the valid
existence and good standing of Landlord and the authority of any parties signing
this Lease to act for Landlord.
(b) This document embodies the entire contract between the parties, and
supersedes all prior agreements and understandings between the parties related
to the Premises, including all lease proposals, letters of intent, and similar
documents. All representations, warranties, or agreements of an inducement
nature, if any, are merged with, and stated in this document. This Lease may be
amended only by a written instrument executed by both Landlord and Tenant.
(c) The relationship created by this Lease is that of landlord and tenant.
Landlord and Tenant are not partners or joint venturers, and neither has any
agency powers on behalf of the other. Tenant is not a beneficiary of any other
contract or agreement relating to the Property to which Landlord may be a party,
and Tenant shall have no right to enforce any such other contract or agreement
on behalf of itself, Landlord, or any other party.
(d) No consent or approval by Landlord shall be effective unless given in
writing signed by Landlord or its duly authorized representative. Any consent or
approval by Landlord shall extend only to the matter specifically stated in
writing.
(e) Whenever this Lease requires Landlord's consent to or approval of any
item, Landlord may condition such consent or approval on payment or
reimbursement of all costs and expenses incurred by Landlord. If Tenant is
required (as a condition to Landlord's consent or otherwise under this Lease) to
pay or reimburse Landlord for costs or expenses, such payment or reimbursement
shall include an administrative processing fee to compensate Landlord for its
additional administrative and overhead costs.
(f) The captions appearing in this Lease are included solely for
convenience and shall never be given any effect in construing this Lease.
(g) This Lease is being executed in multiple counterparts, each of which
shall be considered an original for all purposes.
(h) If any provision of this Lease is invalid or unenforceable, the
remainder of this Lease shall not be affected. Each separate provision of this
Lease shall be valid and enforceable to the fullest extent permitted by law.
(i) This Lease binds not only Landlord and Tenant, but also their
respective heirs, personal representatives, successors, and assigns (to the
extent assignment is permitted by this Lease).
(j) This Lease is governed by the laws of the state in which the Property
is located.
(k) All references to "business days" in this Lease shall refer to days
that national banks are open for business in the city where the Property is
located. Time is of the essence of this Lease.
(l) All references to "mortgage(s)" in this Lease shall include deeds of
trust, deeds to secure debt, other security instruments, and any ground or other
lease under which Landlord may hold title to the Property as lessee. All
references to "mortgagee(s)" in this Lease shall include trustees, secured
parties, ground or other lessors, and other parties holding any lien, security,
or other interest in the Property pursuant to any mortgage.
(m) Any liability or obligation of Landlord or Tenant arising during or
accruing with respect to the term of this Lease shall survive the expiration or
earlier termination of this Lease, including without limitation, obligations and
liabilities relating to (i) the final adjustment of estimated installments of
Additional Rent to actual Additional Rent owed, (ii) the condition of the
Premises or the removal of Tenant's property, and (ii) indemnity and hold
harmless provisions of this Lease.
(n) Tenant agrees not to record this Lease. Tenant may record a memorandum
of this Lease in a form approved by Landlord in writing prior to recording
provided Tenant pays all taxes, recording fees, or other governmental charges
incident to such recording. The memorandum shall not disclose the rent payable
under this Lease and shall expressly provide that it shall be of no further
force or effect after the last day of the term or on filing
by Landlord of an affidavit that this Lease has expired or been terminated.
Additionally, Tenant shall not disclose the terms of this Lease to any third
party except (i) legal counsel to Tenant, (ii) any assignee of Tenant's interest
in this Lease or sublessee of Tenant, (iii) as required by applicable law or by
subpoena or other similar legal process, or (iv) for financial reporting
purposes.
(o) Landlord has delivered a copy of this Lease solely for Tenant's review,
and such delivery does not constitute an offer to Tenant or an option reserving
the Premises. This Lease shall not be effective until a counterpart executed by
both Landlord and Tenant is delivered by Landlord to Tenant.
30. SPECIAL PROVISIONS. Any special provisions are attached to this Lease as
EXHIBIT G.
IN WITNESS WHEREOF, the parties have caused this Lease to be executed pursuant
to authority duly given as of the day and year first above written.
TENANT: LANDLORD:
TMP, INC., COMMERCE STREET ASSOCIATES , a
a TENNESSEE corporation Tennessee partnership
By: /S/ M. XXXXX XXXXXX By: /S/ XXXXXX X. XXXXXXX
Title PRESIDENT Title GENERAL PARTNER
[SEAL] [SEAL]
Witnesses to Tenant: Witnesses to Landlord:
/S/ XXXXXX X. XXXXXX, XX. /S/ XXXXXX X. XXXXXXX
Printed Name: XXXXXX X. XXXXXX, XX. Printed Name: XXXXXX X. XXXXXXX
/S/ M. XXXXX XXXXXX ______________________________________
Printed Name: M. XXXXX XXXXXX Printed Name:_________________________
TENANT'S NOTIFICATION ADDRESS: LANDLORD'S NOTIFICATION ADDRESS:
000 XXXXXXXX XXXXXX c/x Xxxxxxx Management, LLC.
XXXXX 000 000 Xxxxxxxx
XXXXXXXXX, XX 00000 Xxxxxxxxx, XX 00000
____________________________________ Attention:_____________________________
Facsimile:__________________________ Facsimile:_____________________________
COPY TO:
EXHIBIT A
LEGAL DESCRIPTION OF BUILDING SITE
EXHIBIT B
FLOOR PLAN OF PREMISES
EXHIBIT C
WORK LETTER
1. No later than April 15, 2000, Tenant shall submit to Landlord space plans in
sufficient detail, including all finishes, to permit Landlord's architect to
complete architectural, electrical, and mechanical plans and specifications for
the construction of improvements to the Premises. Within five (5) days
thereafter, Landlord shall advise Tenant of any required revisions. Within five
(5) days thereafter, Tenant shall deliver to Landlord revised plans and
specifications incorporating the revisions required by Landlord. Such plans and
specifications as revised in accordance with Landlord's requirements shall
constitute the "Plans" for purposes of this Work Letter.
2. Landlord shall promptly begin construction of the improvements described in
the Plans (the "Tenant Improvements"), and shall pursue such construction with
reasonable diligence to completion. Construction of Tenant Improvements shall be
accomplished by contractors selected and employed by Landlord. "Tenant
Improvements" shall be defined as that work over and above the "Base Building
Improvements". "Base Building Improvements" shall be the responsibility of the
Landlord and consist of the completion of all Common Areas (including
restrooms), HVAC installed including the VAV boxes and ducting to said VAV boxes
with Tenant responsible for distribution from the VAV boxes, ceiling grid
installed, ceiling tiles (2' x4' Xxxxxxxxx Second Look) stacked on the floor,
light fixtures (2'x4' Parabolic) 1/80 USF, stacked on the floor, sprinkler
system installed with heads turned up and window blinds.
3. If the cost of constructing the Tenant Improvements exceeds $21.00 PER
RENTABLE SQUARE FOOT (the "Allowance"), any excess costs shall be paid by Tenant
as provided in this Work Letter. The cost of constructing Tenant Improvements
shall include (a) fees and expenses of the Architect in connection with
preparation of the Plans and construction of the Tenant Improvements, (b) costs
of labor and materials, (c) fees and other charges payable to contractors, (d)
fees to governmental authorities for permits, inspections, and certificates of
occupancy, (e) utilities during construction, and (f) other out-of-pocket costs
and expenses incurred by Landlord that are directly related to the preparation
of the Plans or the construction of the Tenant Improvements. The estimated cost
of constructing Tenant Improvements in excess of the Allowance shall be paid by
Tenant to Landlord in full prior to commencement of construction of the Tenant
Improvements. Any underpayment based on such estimate shall be paid by Tenant to
Landlord within five (5) days after delivery of Landlord's invoice to Tenant
reflecting the final accounting of the cost of constructing Tenant Improvements;
and any overpayment by Tenant shall be credited against the installment(s) of
Minimum Rent first due under this Lease.
4. If Tenant requests any changes in the Plans, Tenant shall submit revised
drawings and specifications for Landlord's approval. If Landlord approves such
changes, Landlord shall incorporate such changes in the Tenant Improvements
following Landlord's receipt of a change order therefor executed by Tenant. As a
condition to Landlord's approval, Tenant shall pay Landlord in advance the
amount by which the increased cost of constructing the Tenant Improvements
attributable to such change exceeds the Allowance.
5. COMMENCEMENT DATE. Notwithstanding any other provision of the Lease, the
"Commencement Date" shall be the earliest date on which a, b, and c of the
following events shall have occurred, but in no event later than August 1, 2000:
(a) Landlord shall have substantially completed the Tenant Improvement work
in accordance with the provisions of the Lease, it being agreed that the Tenant
Improvement work shall be substantially completed when Tenant's Architect
certifies in writing to Landlord and Tenant that, in Tenant's Architect's good
faith professional judgment, the Tenant Improvement work is completed except for
minor punchlist-type items of a nature that such items can be promptly completed
with only minor inconvenience to Tenant.
(b) A temporary certificate of occupancy for the Premises (and all other
governmental permits, approvals and certificates, if any, required by applicable
law, excluding, however, any business licenses necessary for Tenant to operate
its business, which licenses Tenant shall be obligated to obtain) sufficient to
permit Tenant to gain access to the Premises and to possess and lawfully use the
Premises for the purpose described in the Lease, shall have been issued and
shall be in full force and effect; and
(c) Landlord shall have tendered possession of the Premises to Tenant
cleaned, free of debris and suitable for occupancy.
(d) Tenant understands that for each and every day that the Commencement
Date does not occur as a result of a Tenant Delay (as defined in paragraph 10
above), and/or Force Majeure delay, the Commencement Date shall be moved forward
by one (1) day with no penalty to Landlord; however, Tenant shall pay rent
including operating expenses and taxes for each day by which the Commencement
Date is delayed as measured from August 1, 2000 if caused by Tenant delay.
(e) Landlord understands that for each and every day that the Commencement
Date does not occur, for any reason whatsoever other than that as a result of
either a Tenant Delay or a Force Majeure Delay (as defined below) (each such day
of delay for any other reason other than a Tenant delay or a Force Majeure Delay
being herein referred to as a "Landlord Delay"), the Tenant shall receive rental
abatement, including operating expenses and taxes for each multiplied by one (1)
day by which the Commencement Date is delayed as measured from August 1, 2000.
(f) Landlord agrees to promptly notify Tenant in writing of any act or
omission which Landlord believes may result in a Tenant Delay or Force Majeure
Delay. Tenant agrees to promptly notify Landlord in writing of any act or
omission which Tenant believes may result in a Landlord Delay. The mere sending
of any such notice shall not conclusively determine the existence of a Tenant
Delay, Force Majeure Delay, or a Landlord Delay.
(g) As used in the Lease, "Force Majeure Delay" shall mean a delay caused
by any one or combination of the following events of "Force Majeure": on-site
accident, on-site casualty, act of God, on-site explosion, war, invasion,
insurrection, riot, mob violence, sabotage, strikes, lockouts, labor disputes,
condemnation, governmental restrictions first adopted and effective after the
date the Lease has been signed and delivered or laws first adopted and effective
after the date the Lease has been signed and delivered, shortages of materials
and contractor's delays.
6. The failure of Tenant to make any payment when due under this Work Letter
shall constitute an Event of Default by Tenant under this Lease.
EXHIBIT D
MINIMUM RENT
FROM(1) THROUGH(2) SQ. FT. RATE(3) RENT SQ. FT. RATE(4) RENT TOTAL ANNUAL RENT(5)
====================================================================================================================================
Commencement Date Month 24 11,569 $20.50 $ 566 $15.00 $ $
Month 25 Month 36 11,569 $20.91 $ 566 $15.30 $ $
Month 37 Month 48 11,569 $21.33 $ 566 $15.60 $ $
Month 49 Month 60 11,569 $21.75 $ 566 $15.91 $ $
Month 61 Month 72 11,569 $22.19 $ 566 $16.24 $ $
Month 73 Month 84 11,569 $22.63 $ 566 $16.56 $ $
Month 85 Month 96 11,569 $23.08 $ 566 $16.89 $ $
Month 97 Month 108 11,569 $23.54 $ 566 $17.23 $ $
Month 109 Month 120 11,569 $24.01 $ 566 $17.58 $ $
--------------
(1) Unless otherwise indicated, beginning on the first day of the specified
full calendar month following the Commencement Date.
(2) Unless otherwise indicated, through and including the last day of the
specified full calendar month following the Commencement Date.
(3) Per rentable square foot per year.
(4) Per rentable square foot per year.
(5) Expressed on an annualized basis even though the applicable period may be
longer or shorter than twelve (12) months.
EXHIBIT E
ADDITIONAL RENT CALCULATION
Additional Rent for any calendar year shall equal the product of (a) the
rentable area of the Premises, times (b) a dollar amount per square foot
determined by adding (i) the amount per square foot of rentable area in the
Building of any increase in Operating Expenses for the applicable calendar year
over Operating Expenses for the calendar year in which the Commencement Date
occurs (the "Base Year"), and (ii) the amount per square foot of rentable area
in the Building of any increase in Taxes for the applicable calendar year over
Taxes for the Base Year. No reduction in the rate of Operating Expenses or Taxes
below the applicable Base Year rate shall result in any reduction of Minimum
Rent.
1. Operating Expenses (herein so called) shall consist of all costs and expenses
of Landlord or its property management company ("Manager") accrued each calendar
year for the management, operation, repair, and maintenance of the Property,
including without limitation, costs and expenses for the following in connection
with the Property:
(a) Wages, salaries and compensation (including fringe benefits) paid or
incurred for employees of Landlord or Manager.
(b) Materials, supplies, replacement parts, equipment and tools (whether
purchased or leased).
(c) Services rendered by third parties, including services to be provided
by Landlord pursuant to the terms of the Lease.
(d) Utility costs and services, including electricity, gas, telephone,
sewage, refuse or garbage collection, fire protection, and security services (if
furnished).
(e) Insurance premiums and policy deductibles paid, including property and
casualty, rent loss, and public liability insurance.
(f) Management fees and expenses. Management fees will be fixed for the
initial Term of the Lease at the rate charged in the year 2001.
(g) Accounting services.
(h) Expenditures required to be capitalized in accordance with generally
accepted accounting principles that are either required under any governmental
law or regulation that are applicable to the Property after the time the
Building was constructed or that are intended to reduce Operating Expenses;
provided that such capitalized costs shall be amortized over a reasonable period
(as determined in accordance with generally accepted accounting principles) with
interest thereon at the prime rate of NationsBank of North
Carolina, N.A. (or its successors), in effect at the time such capital
improvements were made.
Notwithstanding the foregoing, Operating Expenses shall not include costs or
expenses for: (i) except as otherwise provided above, expenditures required to
be capitalized in accordance with generally accepted accounting principles,
depreciation or amortization, or interest, (ii) leasing commissions or brokerage
fees, (iii) repairs reimbursed by insurance carried or required to be carried by
Landlord, (iv) utilities and other services separately charged to tenants, or
(v) the Tenant Improvements or renovations or improvements to premises of other
tenants.
2. Taxes (herein so called) for each calendar year shall consist of all real
estate taxes, assessments (whether for drainage, sewage, or other public
improvements), taxes on rent or on occupancy or use of the Property, and similar
governmental impositions now or hereafter levied or assessed, whether general or
special, and whether imposed by any governmental entity or special taxing or
assessment district (excluding, however, any income, franchise, or similar tax
imposed directly on Landlord or Landlord's net income from the Property),
together with all costs incurred by Landlord in contesting same.
3. In calculating Operating Expenses, all costs shall be determined on an
annualized basis, and costs that vary with occupancy (such as janitorial service
and utilities) shall be appropriately adjusted to reflect Operating Expenses at
ninety-five (95%) percent occupancy of the Building for a full calendar year. In
calculating Additional Rent, all rates per rentable square foot shall be based
on the greater of ninety-five percent (95%) of the net rentable area of the
Building or the actual annualized occupancy of the Building. If the rentable
area of the Building changes, subsequent calculations of Additional Rent shall
be adjusted accordingly based on an architect's certificate or other reasonable
substantiation of the Building's rentable area.
EXHIBIT F
OFFICE BUILDING RULES
1. Sidewalks, doorways, vestibules, halls, stairways, elevator lobbies and
other similar areas in the common areas of the Property shall not be used for
the storage of materials or disposal of trash, obstructed by tenants or others,
or used by tenants or others for any purpose other than entrance to and exit
from tenant premises.
2. Plumbing fixtures shall be used only for the purposes for which they are
designed, and no sweepings, rubbish, rags, or other unsuitable materials shall
be disposed into them. Damage resulting to any such fixtures from misuse by a
tenant shall be the liability of said tenant.
3. Movement in or out of the Building of furniture, equipment, or any other
bulky or heavy materials shall be restricted to such hours as Landlord's
property manager shall reasonably designate. Landlord's property manager will
determine the method and routing of the movement of said items so as to ensure
the safety of all persons and property concerned, and Tenant shall be
responsible for all costs and expenses associated therewith. Advance written
notice of intent to move such items must be made to Landlord's property manager
at least twenty-four (24) hours before the time of such move.
4. All deliveries (including messenger deliveries but excluding deliveries
of small hand carried parcels) to a tenant's premises shall be made through
loading docks or service entrances, following routes and movement instructions
within the Building as directed by Landlord's property manager. Delivery
vehicles shall be permitted only in such areas as are designated by Landlord for
deliveries to the Building. Absolutely no carts or dollies shall be allowed
through the main entrances of the Building or on passenger elevators without the
prior written consent of Landlord's property manager.
5. Landlord's property manager shall have the authority to approve the
proposed weight and location of any safes and heavy furniture and equipment,
which shall if determined to be necessary by Landlord's property manager, stand
on supporting devices approved by Landlord's property manager in order to
distribute the weight.
6. Corridor doors that lead to common areas of the Building (other than
doors opening into the elevator lobby on floors leased entirely to a tenant)
shall be kept closed at all times.
7. Each tenant shall cooperate with Landlord's property manager in keeping
its premises neat and clean. No tenant shall employ any person for the purpose
of such cleaning other than the Building's cleaning and maintenance personnel
without prior approval of Landlord's property manager.
8. All freight elevator lobbies are to be kept neat and clean. The disposal
of trash or storage of materials in these areas is prohibited.
9. No birds, fish or other animals shall be brought into or kept in, on or
about the Building (except for seeing-eye dogs).
10. Tenants shall not tamper with or attempt to adjust temperature control
thermostats in their premises. Landlord's property manager shall adjust
thermostats as required to maintain, the Building standard temperature.
11. Each tenant shall comply with all security procedures (if any) both
during business hours and after hours and on weekends. Landlord's property
manager will provide each tenant with prior notice of any such security
procedures and any changes thereto promptly.
12. Tenants shall lock all office doors leading to corridors and turn out
all lights at the close of their working day; provided, however, that no tenant
shall be responsible to ensure that Landlord's cleaning contractor locks doors
and turns out lights after cleaning the tenant's premises.
13. All requests for overtime air conditioning or heating must be submitted
in writing to Landlord's property manager by an authorize representative of the
tenant. A list of persons authorize to request such overtime services must be
furnished by the tenant to Landlord's property manager, and Landlord shall be
entitled to rely thereon. Any such request must be made by 2:00 p.m. on the day
desired for weekday requests, by 2:00 p.m. Friday for weekend requests, and by
2:00 p.m. on the preceding business day for holiday requests. Requests made
after that time may result in an additional charge to such tenant, if acted upon
by Landlord, but Landlord is in no event obligated to act on untimely requests.
14. No flammable or explosive fluids or materials shall be kept or used
within the Building except in areas approved by Landlord, and each tenant shall
comply with all applicable building and fire codes relating thereto.
15. No vending machines of any type shall be allowed in tenant space
without the prior written consent of Landlord's property manager.
16. All locks for doors in each tenant's premises shall be Building
Standard except as otherwise permitted by Landlord and no tenant shall place any
additional lock or locks on any door in its premises without Landlord's property
manager's written consent. All requests for duplicate keys shall be made to
Landlord's property manager.
17. No machinery of any kind other than normal office equipment shall be
operated by any tenant in its premises without the prior written consent of
Landlord's property manager.
18. Canvassing, peddling, soliciting and distribution of hand bills on the
Property (except for activities within a tenant's premises that involve only
such tenant's employees) is prohibited. Each tenant is requested to notify
Landlord (or Landlord's property manager) if such activities occur.
19. Prior approval from Landlord's property manager will be required for
(a) access to Building mechanical, telephone or electrical rooms, (b)
after-hours freight elevator use, (c) after-
hours Building access by tenant's contractors, or (d) access to the roof of the
Building by any person. No penetration of the roof of the Building shall be
allowed in any circumstances. The tenant will be responsible for contacting
Landlord's property manager in advance for clearance of such tenant contractors.
All tenants shall refer all contractors, contractors' representatives, and
installation technicians rendering any service to them to Landlord for
Landlord's supervision, approval, and control.
20. Each tenant and their contractors are responsible for removal of trash
resulting from large deliveries or move-ins. Such trash must be removed from the
Building and Building facilities may not be used for dumping. If such trash is
not promptly removed, Landlord (or Landlord's property manager) may cause such
trash to be removed at the tenant's sole cost and expense plus a reasonable
additional charge to be determined by Landlord to cover Landlord's
administrative costs in connection with such removal.
21. Tenants may not install, leave or store equipment, supplies, furniture
or trash in the common areas of the Property.
22. Each tenant shall provide Landlord's property manager with names and
telephone numbers of individuals who should be contacted in an emergency.
23. To insure orderly operation of the Building, no ice, mineral or other
water, towels, newspapers, ETC., shall be delivered to any premises except by
persons appointed or approved by Landlord in writing.
24. Electric current shall not be used for space heaters, cooking or
heating devices or similar appliances without Landlord's prior written
permission.
25. Nothing shall be swept or thrown into the corridors, halls, elevator
shafts or stairways.
26. No portion of any tenant's premises shall at any time be used or
occupied as sleeping or lodging quarters, nor shall personnel occupancy loads
exceed limits reasonably established by Landlord for the Building.
27. No vehicles shall be parked except in designated areas. No vehicles may
be stored or abandoned on the Property. All loading and unloading shall occur
only at designated loading docks or areas. All persons on the property shall
comply with traffic control and parking signs.
28. No antennas (including microwave or satellite dish antennas) shall be
placed on the roof of the Building or elsewhere on the Property without the
prior written consent of Landlord.
Landlord reserves the right to amend and add to these rules as Landlord
considers appropriate for the safety, care, maintenance, operation, and
cleanliness of the Building, and for the preservation of good order therein. If
any of these rules directly contradicts the other terms of the Lease, such other
terms shall prevail.
EXHIBIT G
SPECIAL PROVISIONS
1) ATM: Landlord approves Tenant's right to install one (1) ATM in the location
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shown in Exhibit G(1).
2) SIGNAGE: Tenant, at Tenant's cost, shall have the right to have signage
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placed on the awning over their main entrance on the First Floor. Tenant shall
also have the right to put signage on the windows along Third Ave. Landlord
shall have approval over the design and location of said signs.
3) RENEWAL: Tenant shall have the right to renew this Lease for Two (2) Five (5)
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year periods, provided Tenant is not in default and provides Landlord with 360
days advance written notice of their desire to renew. Renewal rental rate will
be at 102% of the current years rate, with annual increases of 2% thereafter.
4) RIGHT OF REFUSAL: Tenant shall have the first right of refusal after Barge,
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Xxxxxxxx, Xxxxxx and Xxxxxx for any space that becomes available on the Third
floor during the Term of the Lease, including renewal years.
5) FDIC: Notwithstanding any other provisions contained in this lease, in the
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event (a) Lessee or its successors or assignees shall become insolvent or
bankrupt, or if it or their interests under this Lease shall be levied upon or
sold under execution or other legal process, or (b) the depository institution
then operating on the Premises is closed, or is taken over by any depository
institution supervisory authority ("Authority"), Lessor may, in either such
event, terminate this Lease only with the concurrence of any Receiver or
Liquidator appointed by such Authority; provided that in the event this Lease is
terminated by the Receiver or Liquidator, the maximum claim of Lessor for rent,
damages, or indemnity for injury resulting from the termination, rejection, or
abandonment of the unexpired Lease shall by law in no event be in an amount
greater than all accrued and unpaid rent to the date of termination.
6) PARKING: Landlord will make every effort to assist Tenant in securing
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five (5) reserved parking spaces in the Building parking garage operated
by Central Parking.
TABLE OF CONTENTS
PAGE
DEMISE OF PREMISES 1
TERM 1
RENT 1
USE OF PREMISES; COMPLIANCE WITH LEGAL REQUIREMENTS 2
TAXES PAYABLE BY TENANT 3
INSURANCE COVERAGE; WAIVER OF SUBROGATION 3
SERVICES FURNISHED BY LANDLORD 4
ALTERATIONS AND IMPROVEMENTS 5
TRADE FIXTURES AND OTHER PERSONAL PROPERTY 5
SIGNS AND ADVERTISING 6
LANDLORD'S RIGHT OF ENTRY 6
CASUALTY DAMAGE 6
CONDEMNATION 6
TRANSFERS BY TENANT 7
TRANSFERS BY LANDLORD 7
SUBORDINATION 8
ESTOPPEL CERTIFICATES; FINANCIAL STATEMENTS 8
EVENTS OF DEFAULT BY TENANT 8
LANDLORD'S REMEDIES 8
LANDLORD'S DEFAULT 9
TENANT'S REMEDIES 10
INDEMNIFICATION 10
PROTECTION AGAINST LIENS 10
HOLDING OVER 10
ATTORNEYS' FEES 11
WAIVER 11
LEASING COMMISSIONS 11
NOTICES 11
MISCELLANEOUS 11
SPECIAL PROVISIONS. 13
EXHIBITS
A Legal Description of Building Site
B Floor Plan of Premises C Work Letter
D Minimum Rent
E Additional Rent Calculation
F Office Building Rules
G Special Provisions
1) ATM
2) Signage
3) Renewals
4) Right of Refusal
5) FDIC
6) Parking
OFFICE LEASE AGREEMENT
Between
COMMERCE STREET ASSOCIATES
as Landlord
and
TMP, INC.
as Tenant
Commerce Center
Nashville, Tennessee
