EXHIBIT 10.9.1
OFFICE LEASE AMENDMENT
THIS OFFICE LEASE AMENDMENT ("Amendment") is made and entered into this
15th day of January 1997 by and between Equifax Inc., a Georgia corporation
(hereinafter identified as "Landlord") and Radiant Systems, Inc. f/k/a Softsense
Computer Products, Inc., a Georgia corporation (hereinafter identified as
"Tenant").
WHEREAS, Tenant and Attachmate Corporation entered into a written Office
Lease, dated June 30, 1995, pursuant to which Tenant currently leases 18,047
rentable square feet (RSF) located at 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxxxxxx;
and
WHEREAS, Attachmate on January 3, 1996, assigned all its right, title
and interest in the Office Lease to Landlord; and
WHEREAS, Landlord and Tenant desire to amend certain terms of the Office
Lease as set forth herein.
NOW THEREFORE, IN CONSIDERATION OF THE SUM OF TEN DOLLARS ($10.00), THE
MUTUAL AGREEMENTS HEREIN CONTAINED AND OTHER GOOD AND VALUABLE CONSIDERATION THE
RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES MUTUALLY
AGREE AS FOLLOWS:
1.
Section 1.02. Premises is hereby deleted in its entirety with the following
substituted in its place:
1.02. PREMISES. Landlord leases to Tenant certain office space
(Premises) as shown cross-hatched on the attached floor plans (Exhibit
A) containing approximately 34,987 total usable square feet in the
building known as 0000 Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xx (Building). The
Premises consist of two separate, non-contiguous areas, each located on
the second floor as denoted on Exhibit A, hereinafter respectively
referred to as "Phase I," which consists of approximately 10,109 RSF,
and "Phase II," which consists of approximately 24,878 RSF. All
measurements are subject to final field
verification and adjustment (see Section 1.05(E)). The Premises contain
the fixtures and any improvements now installed plus any improvements
required by paragraph 1.05, but excluding any artwork, furniture,
personal property and equipment now installed.
Tenant and its agents, employees and invitees shall have the non-
exclusive right with others designated by the Landlord to use the Common
Areas in the Building for the intended use and normal purposes of the
Common Areas. Common Areas include elevators, emergency stairwells,
sidewalks, parking areas, driveways, hallways, public restrooms and
shower facilities, fitness/exercise areas and lockers, common entrances,
lobby, cafeteria and other similar public areas and access ways.
Landlord in its sole discretion may change the Common Areas if the
changes do not materially and unreasonably interfere with the Tenant's
access to and use of the leased Premises.
2.
Section 1.04(a). Term is hereby deleted in its entirety with the following
substituted in its place:
1.04(a) TERM. The Lease Term for Phase I shall commence January 15, 1997
and shall end January 31, 2000 subject to the termination rights
contained herein, and the Lease Term for Phase II shall commence April
1, 1997 and shall end January 31, 2000, subject to termination rights
contained herein. Tenant may extend the Lease Term for the entire
Premises for a period of two (2) years, at rental rates to be mutually
determined, provided written notice is given to Landlord at least twelve
(12) months prior to the expiration of the initial term. Landlord and
Tenant retain the right to terminate this Office Lease, during the
initial term or any renewal term, without penalty, except for Tenant's
unamortized Tenant Improvement dollars as contained in Section 1.05(B)
hereof, upon nine (9) months prior written notice. In the event either
party elects to terminate this Office Lease in accordance with the
provisions herein, then either party retains the right to issue a like
termination notice on that space contained in Building B leased under
that separate Commercial Lease Agreement, dated May 1994, between
Digital Communications Associates, Inc. and Softsense Computer Products,
Inc., as amended February 1, 1995. In the event of
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early termination of this Office Lease and such termination takes effect
prior to expiration of the initial term, Tenant's option to renew set
forth above shall become null and void.
Section 1.04(c) Substantial Completion is hereby deleted in its entirety with
the following substituted in its place:
1.04(c). SUBSTANTIAL COMPLETION. Tenant shall use its best efforts to
substantially complete and relocate into the Premises by April 1, 1997,
or for Phase II, thirty (30) days from the date Attachmate vacates the
Premises, which is expected to be March 1, 1997, so that the space
currently occupied by Tenant is vacant and available for occupancy by
Landlord on or before April 1, 1997. Substantially complete means:
(i) completing Tenant's Improvements (paragraph 1.05) so that (A)
Tenant can use the Premises for their intended purposes without
material interference to Tenant conducting its ordinary business
activities and (B) the only incomplete items are minor or
insubstantial details of construction, mechanical adjustments,
finishing touches like touch-up plastering or painting;
(ii) Tenant, its employees, agents, and invitees, have ready access to
the Building and Premises through the lobby, entranceways,
elevators, and hallways;
(iii) the Premises are ready for the installation of any equipment,
furniture, fixtures, or decoration by Tenant that Tenant will
install.
3.
Section 1.05 Improvements is hereby deleted in its entirety with the following
substituted in its place.
1.05. IMPROVEMENTS.
A. The Premises are leased on an "as is" basis. Tenant shall have the
right to perform demolition and new construction in the Phase I and
Phase II space to the extent reasonably necessary to adapt the space for
its needs as general office space, provided that such demolition and
construction does not alter or adversely impact any base building
systems (structural, mechanical, electrical or plumbing) and does not
interfere with Landlord's ability to do business. In the event Tenant
elects to perform alterations, Landlord will reimburse Tenant for tenant
improvements up to but not exceeding two hundred thousand and no/100
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dollars ($200,000.00), hereinafter referred to as the Tenant's "build-
out allowance." The build-out allowance is specifically intended for
alterations performed to the Premises described above, and is not valid
for the purchase of any personal property or equipment. As a condition
of reimbursement, Landlord shall have the right to review all
construction documents and pricing prior to approval and release of same
to Tenant's contractor. Reimbursement shall be made by Landlord to
Tenant within 30 days of final completion of the alterations subject to
receipt of verifiable invoices.
B. The build-out allowance shall be amortized on a straight line basis
over the initial Lease Term at the rate of ten percent (10%) per annum.
In the event Tenant terminates this Office Lease prior to the expiration
of the initial term, per Section 1.04(a) above, then Tenant shall pay to
Landlord an amount equal to the unamortized build-out allowance as of
the Office Lease termination date. In the event the Landlord terminates
this Office Lease Agreement, per Section 1.04(a) above, then Tenant
shall pay to Landlord either the balance of the unamortized build-out
allowance as of the Office Lease termination date or fifty-thousand and
no/100 dollars ($50,000.00), whichever is less. However, in the event
the Landlord elects to terminate the Office Lease and the termination
date falls during calendar year 1997, then the Tenant would not be
obligated to repay any portion of the build-out allowance to Landlord.
Any repayments of the build-out allowance shall be due and payable to
Landlord along with the final rental payment due hereunder.
C. In addition to the build-out allowance, Landlord shall provide a
seventy-five thousand and no/100 dollars ($75,000) cash payment to the
Tenant for technology and wiring expenses incurred by the Tenant in
relocating to the Premises. This cash distribution is in addition to and
not a part of the build-out allowance referred to above, and will be
paid to Tenant within thirty (30) days of execution of this Office Lease
Amendment. This cash payment is not subject to repayment by Tenant to
Landlord in the event either party terminates the lease per Section
1.04(a), above.
D. All work and improvements made to the Premises shall be constructed
by contractors approved by Landlord and made pursuant to plans and
specifications approved in advance by Landlord. Tenant assumes all risk
relative to said demolition and construction, and shall comply with all
applicable building codes and required permitting laws and all work
shall be
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performed in a workmanlike manner. Tenant agrees to indemnify and hold
Landlord harmless from and defend Landlord against any and all claims or
liability for any injury or death to any person or damage to any property
arising from acts or omissions of Tenant, or any of its agents, employees,
contractors, invitees, tenants or assignees. Except as may otherwise be
agreed by the parties, all such work, including additions, fixtures, and
Tenant improvements (but excluding moveable office furniture and equipment
and other personal property of Tenant) made or placed in or upon the
Premises by Tenant shall be and become the Landlord's property at the
termination of this Office Lease by lapse of time or otherwise, all without
compensation or payment to Tenant. Approved alterations or additions made
by Tenant shall be at the sole expense and liability of Tenant, and
Tenant's indemnity shall apply to any contractors engaged by Tenant in
connection therewith. Upon completion of construction, Tenant shall be
allowed, at its sole expense, to make minor repairs to existing
partitioning where necessary and paint the Premises. Upon termination of
this Office Lease Agreement, Tenant shall surrender the Premises in as good
a condition as received, ordinary wear and tear excepted.
E. Upon completion of Phase II construction and the substantial occupancy
thereof by Tenant, Landlord shall, at Landlord's expense, retain a licensed
architectural firm of its choice to measure Phase I and Phase II of the
Subleased Premises occupied by Tenant, based on BOMA standards.
4.
Section 1.06 Parking and Use. is hereby amended to add the following sentence:
Landlord agrees to provide reserved signage and designation for three (3)
visitor parking spaces for the exclusive use of Tenant's visitors.
5.
The first paragraph of Section 2.01. Rent is hereby deleted in its entirety with
the following substituted in its place:
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2.01. RENT.
Annual Gross Rent for the Premises shall be:
PHASE I: $16.25 per RSF
PHASE II: $15.50 RSF for the first 18,047 RSF and $16.25 RSF for space in
excess of 18,047 RSF.
Tenant shall pay to Landlord such annual rental in monthly installments, upon
occupancy of the Premises which is expected to be (a) January 15, 1997 for
Phase I and (b) for Phase II, April 1, 1997, or thirty (30) days from the date
Attachmate vacates the Premises, which is expected to be March 1, 1997, with
such sums payable on the first day of each calendar month during the term hereof
in advance, without prior notice or demand. If the Lease Term terminates on
other than the last day of a month, then the rent due shall be prorated for such
month and be paid in advance. All past due installments of rent and other sums
due hereunder shall bear interest at the rate of ten percent (10%) per annum
from date due until paid. A ten (10) day grace period shall be allowed from the
1st through 10th of each month for monthly rental payments payable hereunder. No
grace period shall be allowed for any other sums due. The base rental set forth
above includes an allowance for building operating expenses through December 31,
1997. For subsequent years, Tenant shall be responsible for its Prorata share of
any increase in building operating expenses above the 1997 Base Year expenses.
In such event, Tenant's rent payable shall be increased, beginning January 1998
and each successive year in accordance with the rent and operating expense
escalations as set forth below, and Tenant's prorata amount of Landlord's
operating expenses shall be paid to Landlord as set forth below. Tenant's
prorata amount shall be determined by multiplying the total dollar amount of
Landlord's rent and operating expense escalation obligations by a fraction,
whereby the numerator of said fraction is the amount of square feet of the
Premises, and the denominator is the amount of square feet of the Building.
Initially, this fraction shall be 17.0%. Landlord shall give Tenant written
notification of Tenant's prorata share of Landlord's adjusted rents and/or
operating expenses. If requested by Tenant, Landlord shall provide documentation
outlining the nature of Tenant's adjustments and the Landlord's calculations
used to determine them. Tenant shall make monthly rental payments and all other
payments due hereunder payable to Equifax Inc. and mailed to Equifax Inc.,
Drop 22, 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, XX 00000.
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6.
Exhibit "A" of the Office Lease is hereby deleted and replaced with that
Exhibit "A" attached hereto and made a part hereof.
All capitalized words not otherwise defined herein shall have the same meaning
as those set forth in the Office Lease.
All other terms and conditions of the Office Lease not modified herein are
hereby ratified and affirmed and continued in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the Office
Lease to be executed by their duly authorized representatives as of the date and
year first above written.
LANDLORD: EQUIFAX INC. TENANT: RADIANT SYSTEMS, INC.
f/k/a Softsense Computer Products, Inc.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxx X. Xxxxxx
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Its: Vice President Its: EVP/CFO
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[CORPORATE SEAL] [CORPORATE SEAL]
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