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EXHIBIT 10.13
STATE OF GEORGIA
COUNTY OF GWINNETT
LEASE
THIS LEASE, made this 9th day of July, 1998, between XXXXXXXXX ATLANTA,
L.P., a Georgia limited partnership, (hereinafter called "Lessor"), and nFRONT,
INC., a Georgia Corporation, (hereinafter called "Lessee");
WITNESSETH: THAT,
WHEREAS, Lessor is the owner of that certain building situated at 000
Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx Xxxxxx, Xxxxxxx (hereinafter called the
"Building") and located on the property (hereinafter called the "Land"; the Land
and the Building are herein collectively called the "Property") described on
EXHIBIT "A", attached hereto and by this reference incorporated herein; and
WHEREAS, Lessee wishes to lease from Lessor approximately 13,747
rentable square feet of the Building, which area is outlined in red on the
diagram marked EXHIBIT "B", attached hereto and by this reference incorporated
herein and made a part hereof (hereinafter called the "Premises");
NOW, THEREFORE, in consideration of the payment of the rent and the
keeping and performance of the covenants and agreements by Lessee as hereinafter
set forth, Lessor does hereby lease to Lessee, and Lessee does hereby lease from
Lessor, the Premises. Lessee hereby accepts the Premises in their condition
existing as of the date hereof (except as outlined in Section 10.1 hereof) and
hereby acknowledges that Lessor has not made any representation or warranty as
to the suitability of the Premises for the conduct of Lessee's business. No
easement for light or air is included in the Premises.
FOR AND IN CONSIDERATION of the leasing of the Premises as aforesaid,
the parties hereby covenant and agree as follows:
1. TERM. Subject to Section 22 hereof, the term (hereinafter called the
"Lease Term") of this Lease shall commence on the sooner of August 1, 1998 or
upon completion of improvements (hereinafter called the "Commencement Date")
and, unless sooner terminated pursuant to the provisions hereof, shall expire at
11:59 p.m. on the day before the date which is five (5) years after the
Commencement Date.
2. RENT.
2.1 The annual base rental (hereinafter called "Annual Base
Rental") for the Premises shall be as per the following schedule. The Annual
Base Rental shall be payable in monthly installments per the schedule below
(hereinafter called "Monthly Base Rent") in advance on the first day of each and
every calendar month during the lease term. The Monthly Base Rent shall be
prorated at the rate of 1/30th of the Monthly Base Rent per day for any partial
month.
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YEAR ANNUAL RENT PER/SF TOTAL ANNUAL RENT MONTHLY BASE RENT
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1 $14.50 $199,331.50 $16,610.95
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2 $14.93 $205,242.71 $17,103.55
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3 $15.38 $211,428.86 $17,619.07
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4 $15.84 $217,752.48 $18,146.04
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5 $16.32 $224,351.04 $18,695.92
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2.2 Lessee shall pay the rent and all other sums, amounts,
liabilities, and obligations which Lessee herein assumes or agrees to pay
(whether designated Base Rent, additional rent, costs, expenses, damages,
losses, or otherwise) (all of which are hereinafter called "Amount Due") as
herein provided promptly at the times and in the manner herein specified without
deduction, setoff, abatement, counterclaim, or defense. If any Amount Due is not
received by Lessor within ten (10) days following the date on which it is due,
Lessee shall pay Lessor a late charge equal to five percent (5%) of the amount
of such past due payment, notwithstanding the date on which such payment is
actually paid to Lessor. If such Amount Due is not paid within thirty (30) days
of the date on which it was originally due, then, in addition to such late
charge, Lessee shall pay Lessor interest on such Amount Due from the date on
which it was originally due until the date it is actually paid at a rate per
annum equal to the lesser of (i) the prime rate of interest announced by
Wachovia Bank of Georgia, N.A., or its successors, from time to time for 90-day
unsecured loans to its best commercial customers plus five percent (5%) or (ii)
the maximum rate permitted by applicable law. Any such late charge and interest
shall be due and payable at the time of actual payment of the Amount Due. Any
Amount Due payable to Lessor by Lessee shall be paid in cash or by check at the
office of Lessor, x/x Xxxxxxxxxx Xxxx/Xxxxxxx, Xxx., Xxxxx 000, 00000 Xxxxxxx
Xxxxxx Xxxx, Xxxxxx, Xxxxxxx 00000, or at such other place or places as Lessor
may from time to time designate in writing.
3. INTENTIONALLY DELETED.
4. SECURITY DEPOSIT. Contemporaneously with the execution of this
Lease, Lessee shall pay Lessor a security deposit in the amount of TWENTY-FIVE
THOUSAND AND 00/100 DOLLARS ($25,000.00) (hereinafter called the "Security
Deposit") to be held by Lessor without interest for the performance by Lessee of
Lessee's covenants and obligations under this Lease. If Lessee is then in full
compliance with this Lease, and Lessor has not previously applied any portion of
such Security Deposit to cure any default of Lessee, then within thirty (30)
days after the date which is twelve (12) months after the Commencement Date,
Lessor shall return a portion of said Security Deposit, being the amount of
$8,389.05, to Tenant. If Lessee shall at any time fail to pay any Amount Due,
and such failure shall continue beyond the expiration of any applicable grace or
cure period, Lessor may, but shall not be obligated to, from time to time and
without prejudice to any other remedy, apply all or any portion of the Security
Deposit to the extent necessary toward the payment of any such Amount Due. In
the event Lessor applies the Security Deposit or a portion thereof as provided
in this Section 4, Lessee shall immediately upon notice from Lessor of such
application pay the amount so applied to Lessor, it being the intent of the
parties that the Security Deposit held by Lessor always be in the amount stated
above. It is expressly understood and agreed, however, that the Security Deposit
shall not be considered an advance payment of rent or a measure of Lessor's
damages in the event of any default by Lessee. If, at the expiration or other
termination of this Lease, Lessee is not in default of any of its covenants, the
Security Deposit shall be returned by Lessor to Lessee without interest.
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5. USE.
5.1 Lessee (and its permitted assignees and subtenants) shall
use the Premises only for general business, administrative and sales and related
purposes, not in violation of the restrictive covenants hereinafter referred to,
and for no other purpose without the prior written consent of Lessor. Lessee
shall operate its business in the Premises during the entire Lease Term and in a
reputable manner in compliance with all applicable laws, ordinances,
regulations, covenants, restrictions, and other matters shown on the public
records, now in force or hereafter enacted. Lessee will not permit, create, or
maintain any disorderly conduct, trespass, noise, or nuisance whatsoever about
the Premises which has a tendency to annoy or disturb any persons occupying
adjacent premises either within or without the Building.
5.2 Lessee shall not place or maintain machines, equipment, or
other apparatus which causes vibrations or noise that may be transmitted to the
Building structure or to any space to such a degree as to be reasonably
objectionable to Lessor or to any tenant, occupant, or other person in the
Building. Neither Lessee nor any of Lessee's employees, agents or invitees shall
place or maintain within the Premises any stoves, ovens or space heaters, except
that Lessee may maintain one (1) microwave oven within the Premises so long as
such microwave oven uses standard 110V electrical service. Lessee shall not make
or permit any odor that is objectionable to the public or to other occupants of
the Building, to emanate from the Premises, and shall not create, permit, or
maintain a nuisance thereon, and shall not do any act tending to injure the
reputation of the Building.
5.3 Lessee shall cause all loading and unloading of any goods
or materials delivered to or sent from the Premises to be done only in the
loading dock area of the Premises or, if no loading dock area is located at the
Premises, then at the loading dock area of the Building or such other dock area
as Lessor may designate. Under no circumstances shall Lessee allow any goods or
materials delivered to or sent from the Premises to be stored on, accumulate on
or obstruct the loading dock area, dumpster pad, sidewalks, driveways, parking
areas, entrances or other public areas or spaces of the Building or the
Property. Lessee acknowledges that violations of this Paragraph 5.3 shall
constitute a material breach of this Lease.
5.4 Lessee shall not perform or permit any work, including,
but not limited to, assembly, construction, mechanical work, painting, drying,
layout, cleaning, or repair of goods or materials, to be done on the loading
dock, sidewalks, driveways, parking areas, landscaped areas of the Building or
the Property.
5.5 Lessee shall not use, handle, store, deal in, discharge,
or fabricate any environmentally hazardous wastes, substances or materials as
the same are now or hereafter may be defined or classified by any local, state,
or federal environmental protection legislation or regulation issued pursuant
thereto.
5.6 Lessee shall not abandon or vacate the Premises at any
time during the Lease Term. Notwithstanding anything to the contrary contained
in this Lease, if Lessee deserts or vacates the Premises, Lessor's sole remedy
for such default shall be to terminate this Lease without further liability on
the part of the Lessor or Lessee. The preceding sentence is not intended and
shall not be deemed to waive or limit any of Lessor's rights or remedies in
connection with or based on any default other than vacation or desertion.
6. UTILITIES AND SERVICE.
6.1 Except to the extent directly contracted for by Lessee,
Lessor shall furnish or cause to be furnished to the Premises between 7:00 a.m.
and 6:00 p.m. Monday through Friday and between 8:00 a.m. and 1:00 p.m. on
Saturdays, exclusive of all holidays, subject to any rules and regulations of
the Building, water and sewer services suitable for Lessee's intended use of the
Premises, electricity as set forth in Paragraph 6.2 hereof, and heat and air
conditioning required in Lessor's reasonable judgment for the comfortable use
and
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occupation of the Premises. As used in this Paragraph 6.1, the term "holiday"
shall mean New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day. Should Lessee desire either heating or air
conditioning at other times, Lessor agrees to provide same upon reasonable
advance request by Lessee, but at Lessee's expense, at such hourly rates as
reasonably may be determined from time to time by Lessor, which charge Lessee
shall pay within thirty (30) days after being billed therefor. Lessor shall
provide lighting facilities for the common entries, hallways, stairways, and
restroom facilities in the Building. Lessee will install and pay for its own
telephone service.
6.2 Lessor, at Lessor's sole cost and expense, shall cause to
be furnished to the Premises sufficient power for building standard fluorescent
lighting, personal computers, normal office copying machines, typewriters, voice
writers, calculating machines, and other normal office machines of similar low
electrical consumption; but not including electricity required for electronic
data processing equipment, special lighting, or any other item of electrical
equipment which singly consumes more than 0.25 kilowatts at rated capacity or
requires a voltage other than 120 volts single phase except as expressly
provided in this Lease. Lessor shall provide Lessee an electrical allowance with
up to $1.60/ft. per year ($21,995.20) for electricity, and any cost of
electrical consumption in excess of such allowance shall be the expense of
Lessee. Lessee shall pay any excess electrical charges to Lessor at the end of
the first year of occupancy by Lessee. In years 2 - 5 of the Lease Term, Lessee
shall pay to Lessor on a monthly basis an estimate of the excess electrical
costs, which shall be based on the previous year's actual cost with appropriate
adjustments based upon any increases in electrical rates by the provider of such
utility. At the end of each Lease year, Lessor shall provide Lessee with an
accounting of the electrical usage and reconcile with Lessee on actual versus
budgeted. If there is money due Lessee in any year, Lessor shall within thirty
(30) days provide Lessee with the difference. As well if monies are owed to
Lessor in any year then Lessee shall within thirty (30) days provide Lessor with
the amount of the shortfall. It is understood by Lessee that Lessor currently
sub meters the entire first floor and that for purposes of calculating Lessee's
power consumption the electrical consumption costs for all other tenants on the
floor will b calculated at $1.60 p.s.f. per year throughout their lease terms
and assuming no coverage by such other tenants on the floor. Lessee shall not
install or use any equipment using electric power other than that described in
this paragraph without the prior written consent of Lessor which consent shall
not be unreasonably withheld or delayed, and, if Lessor gives written consent,
then Lessee shall pay the cost of the power to operate the equipment, as
determined by Lessor, and if the installation of such electrical equipment
requires additional air conditioning capacity above that provided by the
building standard system, then the additional air conditioning installation and
operating costs will be the obligation of Lessee.
6.3 Lessor shall not be held liable for any damage or injury
suffered by Lessee or by any of Lessee's invitees, licensees, agents, servants,
employees, contractors, or subcontractors or any other person or entity engaged,
invited, or allowed to come onto the Premises by Lessee (hereinafter
collectively referred to as "Lessee Parties"), resulting directly, indirectly,
proximately, or remotely from the installation, use, or interruption of any
utility service to the Premises or Building, including, but not limited to,
temporary failure to supply any heating, air conditioning, electrical, water, or
sewer services, or any of them. No temporary failure to provide services shall
relieve Lessee from fulfillment of any covenant of this Lease, including,
without limitation, the covenant to pay any Amount Due in the manner and
amounts, and promptly at the times set forth herein.
6.4 Lessor shall furnish Lessee janitorial service five (5)
days per week, exclusive of holidays, in a manner that Lessor reasonably deems
to be consistent with the first-class standard of the Building.
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7. MAINTENANCE.
7.1 Except for damage arising from the negligence of Lessee or
the Lessee Parties, Lessor shall keep the roof, foundation, exterior walls,
common areas, and all sewer and utility lines of the Building, including all
sewer connections, plumbing, heating appliances, wiring, and glass, in good
order and repair, shall furnish Lessee all Building standard fluorescent bulb
replacement in all areas and all incandescent bulb replacement in the common
areas and service areas within the Building. Notwithstanding anything to the
contrary contained herein and except as otherwise provided in the preceding
sentence, Lessor shall have no obligation to maintain, replace, or repair any
other improvements located within the Premises, the maintenance of which is and
shall be the responsibility of Lessee.
7.2 Lessor shall have no obligation to make any repairs unless
and until Lessee notifies Lessor in writing of the necessity thereof, in which
event Lessor shall have reasonable time in which to make such repairs; however,
Lessee may notify Lessor verbally of any minor, routine or day-to-day repairs
which need to be made.
7.3 Subject to Lessor's obligation to provide janitorial
services, Lessee shall keep the Premises free from all litter, dirt, debris, and
obstructions and in a clean and sanitary condition. Except as otherwise provided
in the first sentence of paragraph 7.1 hereof, Lessee shall maintain, replace,
and repair all improvements located within the Premises, including, but not
limited to, finishes, wall coverings, carpets, floor coverings, utility lines,
sewer connections, plumbing, wiring and glass, which are or were installed for
Lessee. At the expiration or other termination of this Lease, Lessee shall
surrender the Premises (and keys thereto) in as good condition as when received,
loss by fire or other casualty not the result of any act or omission by Lessee
or ordinary wear and tear excepted only.
8. FORCE MAJEURE. In the event that either party hereto shall be
delayed or hindered in or prevented from the performance of any act required
hereunder by reason of strikes, lockouts, labor troubles, inability to procure
materials, failure of power, restrictive government laws or regulations, riots,
insurrection, war, or other reason of a like nature other than finance not the
fault of the party delayed in performing work or doing acts required under the
terms of this Lease, then performance of such act shall be excused for the
period of the delay and the period for the performance of any such act shall be
extended for a period equivalent to the period of the delay. The provisions of
this Section 8 shall not cancel, postpone, or delay the due date of any payment
to be made by Lessee hereunder, nor operate to excuse Lessee from prompt payment
of any Amount Due required by the terms of this Lease.
9. PROPERTY AND LIABILITY INSURANCE.
9.1 Throughout the Lease Term, Lessor will insure for full
replacement value, the Building (excluding foundations and excavations), the
Building standard leasehold improvements, and the machinery, boilers, and
equipment contained therein owned by Lessor (excluding any property Lessee is
obliged to insure pursuant to Paragraph 9.3 below) against damage by fire and
the perils insured in the standard extended coverage endorsement. Lessor shall
also, throughout the Lease Term, carry public liability insurance in an amount
not less than $1,000,000 for any one occurrence with respect to the ownership
and operation of the Building.
9.2 Lessee shall comply with all insurance regulations so the
lowest fire, extended coverage, and liability insurance rates available for use
of the Building as normal office space may be obtained by Lessor and will not
use or keep any substance or material in or about the Premises which may vitiate
or endanger the validity of insurance on the Building, increase the hazard or
the risk beyond that for a normal office building, or result in an increase in
premium on the insurance on the Building. If any insurance policy upon the
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Premises or the Building or any part thereof shall be canceled or shall be
threatened by the insurer to be canceled, the coverage thereunder reduced or
threatened to be reduced, or the premium therefor increased or threatened to be
increased in any way by the insurer by reason of the use and occupation of the
Premises by Lessee or by any assignee or subtenant of Lessee and if Lessee fails
to remedy the condition giving rise to the cancellation, reduction, or premium
increase or threat thereof within twenty-four (24) hours after notice thereof by
Lessor, Lessor may, at its option, do any one of the following:
9.2.1 Declare a default by Lessee, and thereupon the
provisions of Section 12 shall apply; or
9.2.2 Enter upon the Premises and remedy the condition
giving rise to the cancellation, reduction, or premium increase or threat
thereof, and in such event, Lessee shall forthwith pay the cost thereof to
Lessor as additional rent; and if Lessee fails to pay such cost, Lessor may
declare a default by Lessee and thereupon the provisions of Section 12 shall
apply (Lessor shall not be liable for any damage or injury caused to any
property of Lessee or of others located on the Premises as a result of the
re-entry); or
9.2.3 If the sole action taken by the insurer is to
raise the premium or other monetary cost of the insurance, demand payment from
Lessee of the premium or other cost as additional rent hereunder, and if Lessee
fails to pay the increase to Lessor within ten (10) days of demand by Lessor,
Lessor may declare a default by Lessee and thereupon the provisions of Section
12 shall apply. Lessee acknowledges that it has no right to receive any proceeds
from any insurance policies carried by Lessor and that such insurance will be
for the sole benefit of Lessor with no coverage for Lessee for any risk insured
against.
9.3 Lessee shall, during its occupancy of the Premises and
during the entire Lease Term, at its sole cost and expense, obtain, maintain,
and keep in full force and effect, and with Lessee, Lessor, and Lessor's
mortgagees named as additional insured therein as their respective interests may
appear, the following types and kinds of insurance:
9.3.1 Upon property of every description and kind owned
by Lessee and located in the Building or for which Lessee is legally liable or
which was installed by or on behalf of Lessee, including, without limitation,
furniture, fittings, installations, alterations, additions, partitions, and
fixtures (excluding, however, those improvements, if any, installed by Lessor in
accordance with paragraph 10.1 hereof), against all risk of loss in an amount
not less than one hundred percent (100%) of the full replacement cost thereof;
9.3.2 Public liability insurance in an amount not less
than $1,000,000.00 for any one occurrence or such higher limits as Lessor may
reasonably require from time to time; the insurance shall include coverage
against liability for bodily injuries or property damage arising out of the use
by or on behalf of Lessee of owned, non-owned, or hired automobiles and other
vehicles for a limit not less than that specified above; and shall also include
coverage for "Fire Legal" liability with respect to the Premises in an amount
not less than $100,000 or such higher limits as Lessor may reasonably require
from time to time.
9.3.3 Workers' compensation insurance in the amount
required by law to protect Lessee's employees; and
9.3.4 Any other form or forms of insurance that Lessor
may reasonably require from time to time, in form, in amounts, and for insurance
risks against which a prudent tenant would protect itself.
9.4 All insurance policies shall be taken out with companies
acceptable to Lessor licensed and registered to operate in the State of Georgia
and in form reasonably satisfactory to Lessor. The insurance may be by blanket
insurance policy or policies. Lessee shall deliver certificates evidencing the
insurance
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policies and any endorsement, rider, or renewal thereof, to Lessor. Certificates
evidencing renewals shall be delivered to Lessor no later than fifteen (15) days
after each renewal, as often as renewal occurs, and in no event less than
fifteen (15) days prior to the date on which the policy would otherwise expire.
All insurance policies shall require the insurer to notify Lessor and Lessor's
mortgagees in writing thirty (30) days prior to any material change,
cancellation, or termination thereof.
9.5 Lessor and Lessee hereby release the other from any and
all liability or responsibility to the other or to anyone claiming through or
under them by way of subrogation or otherwise for any loss or damage to property
caused by fire or any other perils insured or insurable (whether or not such
insurance is obtained) in policies of fire and extended coverage insurance
covering such property even if such loss or damage shall have been caused by the
fault or negligence of the other party, or any one for whom such party may be
responsible (other than acts, such as intentional wrongdoing or criminal
conduct, that are not waived in the standard waiver of subrogation provision in
commercial property insurance at the time of the loss or damage).
10. ALTERATIONS AND IMPROVEMENTS.
10.1 Lessor shall improve the Premises in accordance with
working drawings to be approved by Lessee and Lessor prior to commencement of
construction. The Premises will be prepared generally in accordance with the
plans shown on EXHIBIT "C", attached hereto and by this reference made a part
hereof. Notwithstanding the above Lessor shall provide Lessee a tenant
improvement allowance equal to $9.00 per square foot or $123,723. These monies
are to be used toward the improvement of the Premises subject to Lessor's
reasonable approval and the above allowance shall also be applied toward the
costs associated with architectural design, engineering, and construction
supervision (5%) to complete the tenant improvement work. Any cost to improve
the Premises in excess of the allowance provided for herein will be at the
expense of Lessee.
10.2 Lessee shall not make any alterations, additions, or
improvements in or to the Premises, nor install or attach fixtures in or to the
Premises, without the prior written consent of Lessor, which consent Lessor
shall not unreasonably withhold, delay or condition. If Lessor does not respond
in writing to Lessee's request for consent within ten (10) business days of
receipt of Lessee's request therefor, Lessee shall be deemed to have given
consent. All alterations, additions, or improvements made, installed in, or
attached to the Premises by Lessee, upon the consent specified above, shall be
made at Lessee's expense in a good and workmanlike manner, strictly in
accordance with the plans and specifications approved by Lessor, all applicable
laws, ordinances, regulations, and other requirements of any appropriate
governmental authority, and any applicable covenants or other restrictions.
Prior to the commencement of any such work, Lessee shall deliver to Lessor
certificates issued by insurance companies licensed and registered to operate in
the State of Georgia evidencing that workers' compensation insurance and public
liability insurance, all in amounts satisfactory to Lessor, are in force and
effect and maintained by all contractors and subcontractors engaged by Lessee to
perform the work.
10.3 Lessee shall keep the Premises free from all liens,
preliminary notices of liens, right to liens, or claims of liens of contractors,
subcontractors, mechanics, or material men for work done or materials furnished
to the Property at the request of Lessee. Whenever and so often as any such lien
shall attach or claims or notices thereof shall be filed against the Property or
any part thereof as a result of work done or materials furnished to the Property
at the request of Lessee, Lessee shall, within ten (10) days after Lessee has
notice of the claim or notice of lien, cause it to be discharged of record,
which discharge may be accomplished by deposit or bonding proceedings. If Lessee
shall fail to cause the lien, or such claim or notice thereof, to be discharged
within the ten-day period, then, in addition to any other right or remedy,
Lessor may, but shall not be obligated to, discharge it either by paying the
amount claimed to be due or by procuring the discharge of the
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lien, or claim or notice thereof, by deposit or bonding proceedings. Any amount
so paid by Lessor and all costs and expenses, including, without limitation,
attorneys' fees, incurred by Lessor in connection therewith, shall constitute
additional rent payable by Lessee under this Lease and shall be paid by Lessee
in full on demand of Lessor together with interest thereon at the rate set forth
in paragraph 2.2 hereof from the date it was paid by Lessor. Lessee shall not
have the authority to subject the interest or estate of Lessor to any liens,
rights to liens, or claims of liens for services, materials, supplies, or
equipment furnished to Lessee, and all persons contracting with Lessee are
hereby charged with notice that they must look to Lessee and to Lessee's
interest only to secure payment.
10.4 All alterations, additions, or improvements, including,
but not limited to, fixtures, partitions, counters, and window and floor
coverings, which may be made or installed by either of the parties hereto upon
the Premises, irrespective of the manner of annexation, and irrespective of
which party may have paid the cost thereof, excepting only movable office
furniture and shop equipment put in at the expenses of Lessee, shall be the
property of Lessor, and shall remain upon and be surrendered with the Premises
as a part thereof at the expiration or other termination of this Lease, without
disturbance, molestation, or injury. Notwithstanding the foregoing, however,
Lessor may elect that any or all installations made or installed by or on behalf
of Lessee be removed at the end of the Lease Term, and, if Lessor so elects, it
shall be Lessee's obligation to restore the Premises to the condition they were
prior to the alterations, additions, or improvements on or before the expiration
or other termination of this Lease; provided, however, that Lessor shall make
such election to require Lessee to remove installations at the time Lessor gives
its consent to allow Lessee to install same. Such removal and restoration shall
be at the sole expense of Lessee. Further, notwithstanding anything contained
herein to the contrary except as otherwise provided in paragraph 9.3.1 hereof,
Lessor shall be under no obligation to insure the alterations, additions, or
improvements or anything in the nature of a leasehold improvement made or
installed by or on behalf of Lessee, the Lessee Parties, or any other person,
and such improvements shall be on the Premises at the risk of Lessee only.
10.5 In the event Lessor makes any capital investment, major
structural repairs or improvements in or to the Premises or Building which are
required due to any willful act or omission of Lessee or any of the Lessee
Parties, any and all cost and expenses incurred by Lessor in making the capital
investment, major structural repairs, or improvements shall constitute
additional rent payable by Lessee under this Lease and shall be paid by Lessee
in full on demand of Lessor, together with interest thereon from the date of the
demand at the rate set forth in paragraph 2.2 hereof.
11. ASSIGNMENT OR SUBLETTING.
11.1 Lessee shall not assign this Lease, or any interest
herein, or sublet or allow any other person, firm, or corporation to use or
occupy the Premises, or any part thereof, without the prior written consent of
Lessor, which consent will not be unreasonably withheld or delayed. If Lessor
does not respond in writing to Lessee's request for consent within ten (10)
business days of receipt of Lessee's request therefor, Lessor shall be deemed to
have given consent. Lessor shall have the right to make such investigations as
it deems reasonable and necessary in determining the acceptability of the
proposed assignee or subtenant. Such investigations may include inquiries into
the financial background, business history, capability of the proposed assignee
or subtenant in its line of business, and the quality of its operations. Under
no circumstances shall Lessor be obligated to consent to the assignment of this
Lease or the subletting of the Premises to any entity whose operations violate
the restrictive covenants described in Section 26 hereof. Lessee shall provide
to Lessor such information as Lessor may reasonably require to enable it to
determine the acceptability of the proposed assignee or subtenant, including
information concerning all of the foregoing matters, and Lessor shall have no
obligation to consent to any assignment or subletting unless it has received
from Lessee (at no cost or expense to Lessor) the most recent audited financial
statements of the proposed assignee or subtenant and such other information as
Lessor reasonably requires. For purposes of this Section 11, an assignment of
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stock or other ownership interest in Lessee shall be deemed an assignment within
the meaning of and be governed by this Paragraph. No assignment or subletting
(with or without the consent of Lessor) shall release Lessee from its
obligations under this Lease nor shall Lessee permit this Lease or any interest
herein or in the tenancy hereby created to become vested in or owned by any
other person, firm, or corporation by operation of law or otherwise. The power
of Lessor to give or withhold its consent to any assignment or subletting shall
not be exhausted by the exercise thereof on one or more occasions, but shall be
a continuing right and power with respect to any type of transfer, assignment or
subletting.
11.2 If Lessee shall assign this Lease or sublet the Premises
in any way not authorized by the terms hereof, the acceptance by Lessor of any
Amount Due from any person claiming as assignee, sublease, or otherwise shall
not be construed as a recognition of or consent to the assignment or subletting
or as a waiver of the right of Lessor thereafter to collect any rent from
Lessee, it being agreed that Lessor may at any time accept any Amount Due under
this Lease from any person offering to pay it without thereby acknowledging the
person so paying as a lessee in place of Lessee herein named, and without
releasing Lessee from the obligations of this Lease, and without recognizing the
claims under which such person offers to pay any Amount Due, but it shall be
taken to be a payment on account by Lessee.
11.3 Notwithstanding the provisions of Paragraph 11 of this
Lease, Lessee shall have the right, without the prior consent of Lessor but
subject to Lessor's rights to notice and prohibitions contained herein, to
assign this Lease or sublet the whole or any part of the Premises to a
corporation or entity which: (1) is Lessee's parent corporation; or (2) is a
wholly-owned subsidiary of Lessee or Lessee's parent corporation; or (3) is a
corporation of which Lessee or Lessee's parent corporation owns in excess fifty
percent (50%) of the outstanding capital stock; or (4) is a result of
consolidation or merger with Lessee and/or Lessee's parent corporation; or (5)
is a corporation to which substantially all of Lessee's assets have been
transferred. Any transfer pursuant to 1, 2, 3, 4 or 5 above, shall be subject to
the following conditions: (a) Lessee shall remain fully liable during the
unexpired term of this Lease; and (b) any such assignment, sublease or transfer
shall be subject to all of the terms, covenants and conditions of this Lease,
and such assignee, sublessee or transferee shall expressly assume the
obligations of Lessee under this Lease by a document reasonably satisfactory to
Lessor. Lessee shall have the obligation to give Lessor prior written notice of
its intent of any such arrangement, and if Lessor reasonably determines that the
proposed assignee or sublessee is engaged in a business which would materially
interfere with the operation of the Property or that permitting the assignment
or subletting would cause a violation by Lessor of its obligations under any
lease covering a portion of the property, Lessor shall have the right to
prohibit such arrangement based upon the issue of the business of the proposed
assignee or sublessee or the compatability of the proposed assignee or sublessee
with the businesses in the Building.
12. DEFAULTS.
12.1 In the event that (i) Lessee shall fail to pay the Base
Rent or any other Amount Due for more than ten (10) days after its due date, or
(ii) Lessee shall fail to comply with any of the terms, covenants, conditions,
or agreements herein contained or any of the rules and regulations now or
hereafter established for the government of the Building and such failure to
comply continues for thirty (30) days after Lessor's written notice to Lessee
thereof, or (iii) Lessee shall fail for more than thirty (30) days after written
notice thereof from Lessor to Lessee to comply (or fail to diligently pursue
within thirty (30) days compliance which cannot reasonably be completed with
such thirty (30) day period and within sixty (60) days comply with) with any
term, provision, condition or covenant of any other agreement between Lessor and
Lessee; then Lessor shall have the option, but not the obligation, to do any one
or more of the following in addition to, and not in limitation of, any other
remedy permitted by law, in equity or by this Lease:
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12.1.1 Terminate this Lease, in which event Lessee shall
surrender the Premises to Lessor immediately upon expiration of ten (10) days
from the date of the service upon Lessee of written notice to that effect,
without any further notice or demand. In the event Lessor shall become entitled
to the possession of the Premises by any termination of this Lease herein
provided, and Lessee shall refuse to surrender or deliver up possession of the
Premises after the service of such notice, then Lessor may, without further
notice or demand, enter into and upon the Premises, or any part thereof, and
take possession of and repossess the Premises as Lessor's former estate, and
expel, remove, and put out of possession Lessee and its effects, using such
help, assistance and force in so doing as may be needful and proper, without
being liable for prosecution or damages therefor, and without prejudice to any
remedy allowed by law available in such cases. Lessee shall indemnify Lessor for
all loss, cost, expense, and damage which Lessor may suffer by reason of the
termination, whether through inability to relet the Premises, or through
decrease in rent or otherwise. In the event of such termination, Lessor may, at
its option, recover forthwith as damages a sum of money equal to the total of
(a) the cost of recovering the Premises (including, without limitation,
attorneys' fees and cost of suit), (b) the unpaid rent earned at the time of
termination, plus late charges and interest thereon at the rate specified in
paragraph 2.2 hereof, (c) the present value (discounted at the rate of 8% per
annum) of the balance of the rent for the remainder of the Lease Term less the
present value (discounted at the same rate) of the fair market rental value of
the Premises for said period, and (d) any other sum of money and damages owed by
Lessee to Lessor.
12.1.2 Without terminating this Lease, retake possession
of the Premises and rent the Premises, or any part thereof, for such term or
terms and for such rent and upon such conditions as Lessor may, in its sole
discretion, think best, making such changes, improvements, alterations, and
repairs to the Premises as may be required. All rent received by Lessor from any
reletting shall be applied first to the payment of any indebtedness other than
rent due hereunder from Lessee; second, to the payment of any costs and expenses
of the reletting, including but not limited to brokerage fees, attorneys' fees
and costs of such changes, improvements, alterations, and repairs; third, to the
payment of rent due and unpaid hereunder; and the residue, if any, shall be held
by Lessor and applied in payment of future rent or damage as they may become due
and payable hereunder. If the rent received from the reletting during the Lease
Term is at any time insufficient to cover the costs, expenses, and payments
enumerated above, Lessee shall pay any deficiency to Lessor, as often as it
shall arise, on demand.
12.1.3 Correct or cure the default and recover any amount
expended in so doing, together with interest thereon until paid.
12.1.4 Recover any and all costs incurred by Lessor
resulting directly, indirectly, proximately, or remotely from the default,
including but not limited to reasonable attorneys' fees.
12.2 In addition to any other rights which Lessor may have,
Lessor, in person or by agent, may enter upon the Premises and take possession
of all or any part of Lessee's property in the Premises, and may sell all or any
part of such property at a public or private sale, in one or successive sales,
with or without notice, to the highest bidder for cash, and, on behalf of
Lessee, sell and convey all or part of the property to the highest bidder,
delivering to the highest bidder all of Lessee's title and interest in the
property sold to him. The proceeds of the sale of the property shall be applied
by Lessor toward the reasonable costs and expenses of the sale, including,
without limitation, attorneys' fees, and then toward the payment of all sums
then due by Lessee to Lessor under the terms of this Lease. Any excess remaining
shall be paid to Lessee or any other person entitled thereto by law. Such sale
shall bar Lessee's right of redemption.
12.3 In the event of a default or threatened default under
this Lease by Lessee, Lessor shall be entitled to all equitable remedies,
including, without limitation, injunction and specific performance.
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12.4 Pursuit of any of the remedies herein provided shall not
preclude the pursuit of any other remedies herein provided or any other remedies
provided at law or in equity. Failure by Lessor to enforce one or more of the
remedies herein provided shall not be deemed or construed to constitute a waiver
of any default, or any violation or breach of any of the terms, provisions, or
covenants herein contained.
13. BANKRUPTCY. The filing or preparation for filing by or against
Lessee of any petition in bankruptcy, insolvency, or for reorganization under
the Federal Bankruptcy Code, any other federal or state law now or hereafter
relating to insolvency, bankruptcy, or debtor relief, or an adjudication that
Lessee is insolvent, bankrupt, or an issuance of an order for relief with
respect to Lessee under the Federal Bankruptcy Code, any other federal or state
law now or hereafter relating to insolvency, bankruptcy, or debtor relief, or
the execution by Lessee of a voluntary assignment for the benefit of, or a
transfer in fraud of, its general creditors, or the failure of Lessee to pay its
debts as they mature, or the levying on under execution of the interest of
Lessee under this Lease, or the filing or preparation for filing by Lessee of
any petition for a reorganization under the Federal Bankruptcy Code, or for the
appointment of a receiver or trustee for a substantial part of Lessee's assets
or to take charge of Lessee's business, or of any other petition or application
seeking relief under any other federal or state laws now or hereafter relating
to insolvency, bankruptcy, or debtor relief, or the appointment of a receiver or
trustee for a substantial part of Lessee's assets or to take charge of Lessee's
business, shall automatically constitute a default in this Lease by Lessee for
which Lessor may, at any time or times thereafter, at its option, exercise any
of the remedies and options provided to Lessor in Section 12 hereof; provided,
however, that if such petition be filed by a third party against Lessee, and
Lessee desires in good faith to defend against the petition and is not in any
way in default of any obligation hereunder at the time of filing the petition,
and Lessee within ninety (90) days thereafter procures a final adjudication that
it is solvent and a judgment dismissing the petition, then this Lease shall be
fully reinstated as though the petition had never been filed. In the event
Lessor elects to terminate this Lease as provided for in this Section, Lessee
shall pay forthwith to Lessor as liquidated damages, the difference between the
unpaid rent reserved in this Lease at the time of such termination and the then
reasonable rental value of the Premises for the balance of the Lease Term, and
Lessee acknowledges that said sum is reasonable and shall not be construed as a
penalty.
14. DAMAGE AND CONDEMNATION.
14.1 In the event during the Lease Term the Premises are
damaged by fire or other casualty, but not to such an extent that repairs and
rebuilding cannot reasonably be completed within one hundred twenty (120) days
of the date of the event causing the damage, Lessor may, at Lessor's option,
repair and rebuild the Premises. If Lessor elects to repair and rebuild the
Premises, this Lease shall remain in full force and effect, but Lessor may
require Lessee temporarily to vacate the Premises while they are being repaired
and, subject to the provisions of this Paragraph 14.1, rent shall xxxxx during
this period to the extent that the Premises are untenantable; provided, however,
that Lessor shall not be liable to Lessee for any damage or expense which
temporarily vacating the Premises may cause Lessee. If the Premises are not
repaired, rebuilt, or otherwise made suitable for occupancy by Lessee within the
aforesaid one hundred twenty (120) day period, Lessee shall have the right, by
written notice to Lessor, to terminate this Lease, in which event rent shall be
abated for the unexpired Lease Term, effective as of the date of the written
notification, but the other terms and conditions of this Lease shall continue
and remain in full force and effect until Lessee shall have vacated the
Premises, removed all Lessee's personal property therefrom and delivered
peaceable possession thereof to Lessor. If Lessor elects not to repair and
rebuild the Premises or if the Building or any part thereof be so damaged that
repairs and rebuilding cannot reasonably be completed within one hundred twenty
(120) days of the date of the event causing the damage, Lessor may by written
notice to Lessee terminate this Lease in which event rent shall be abated for
the unexpired Lease Term, effective as of the date of the written notification,
but the other terms and conditions of this Lease shall continue and remain in
full force and effect until Lessee shall have vacated the Premises, removed all
Lessee's personal property therefrom and delivered peaceable possession thereof
to Lessor. Failure by Lessee to comply with any provision of this Paragraph 14.1
shall
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subject Lessee to such costs, expenses, damages, and losses as Lessor may incur
by reason of Lessee's breach hereof. Notwithstanding any provision of this Lease
to the contrary, if the Premises, the Building, or any part thereof are damaged
by fire or other casualty caused by or materially contributed to by the
negligence or misconduct of Lessee or any of the Lessee Parties, Lessee shall be
fully responsible, to the extent not covered by insurance, for repairing,
restoring, or paying for the damage as Lessor shall direct and this Lease shall
remain in full force and effect without reduction or abatement of rent.
14.2 In the event the Building shall be taken, in whole or in
part, by condemnation or the exercise of the right of eminent domain, or if in
lieu of any formal condemnation proceedings or actions, if any, Lessor shall
sell and convey the Premises, or any portion thereof, to the governmental or
other public authority, agency, body, or public utility, seeking to take the
Premises, the Property or any portion thereof, then Lessor, at its option, may
terminate this Lease upon ten (10) days' prior written notice to Lessee and
prepaid rent shall be proportionately refunded from the date of possession by
the condemning authority. All damages awarded for the taking, or paid as the
purchase price for the sale and conveyance in lieu of formal condemnation
proceedings, whether for the fee or the leasehold interest, shall belong to and
be the property of Lessor; provided, however, Lessee shall have the sole right
to reclaim and recover from the condemning authority, but not from Lessor, such
compensation as may be separately awarded or recoverable by Lessee in Lessee's
own right on account of any and all costs or loss (including loss of business)
to which Lessee might be put in removing Lessee's merchandise, furniture,
fixtures, leasehold improvements, and equipment to a new location. Lessee shall
execute and deliver any instruments, at the expense of Lessor, that Lessor
reasonably may deem necessary to expedite any condemnation proceedings, to
effectuate a proper transfer of title to such governmental or other public
authority, agency, body or public utility seeking to take or acquire the lands
and Premises, or any portion thereof. Lessee shall vacate the Premises, remove
all Lessee's personal property therefrom and deliver up peaceable possession
thereof to Lessor or to such other party designated by Lessor in the
aforementioned notice. Failure by Lessee to comply with any provisions of this
Paragraph 14.2 shall subject Lessee to such costs, expenses, damages, and losses
as Lessor reasonably may incur by reason of Lessee's breach hereof. If Lessor
chooses not to terminate this Lease, then to the extent and availability of
condemnation proceeds received by Lessor and subject to the rights of any
mortgagee thereto, Lessor shall, at the sole cost and expense of Lessor and with
due diligence and in a good and workmanlike manner, restore and reconstruct the
Premises within one hundred twenty (120) days after the date of the physical
taking, and such restoration and reconstruction shall make the Premises
reasonably tenantable and suitable for the general use being made by Lessee
prior to the taking and shall restore the Premises to its condition immediately
prior to the taking, reasonable wear and tear expected; provided, however, that
Lessor shall have no obligation to restore and reconstruct Lessee's leasehold
improvements unless and to the extent that Lessor receives an award of
condemnation proceeds specifically designated as compensation for such
improvements. Notwithstanding the foregoing, if Lessor has not completed the
restoration and reconstruction within one hundred twenty (120) days after the
date of physical taking, Lessee, in addition to any other rights and remedies
Lessee may have, shall have the right to cancel this Lease. If this Lease
continues in effect after the physical taking, the rent payable hereunder shall
be equitably adjusted in proportion to the percentage of the Premises taken or
rendered unusable as a result of such taking, both during the period of
restoration and reconstruction and during the unexpired portion of the Lease
Term.
14.3 In the event Lessor, during the Lease Term, shall be
required by any governmental authority or the order or decree of any court, to
repair, alter, remove, reconstruct, or improve (hereinafter collectively called
"Repairs") any part of the Premises, then the Repairs may be made by and at the
expense of Lessor and shall not in any way affect the obligations or covenants
of Lessee herein contained, and Lessee hereby waives all claims for damages or
abatement of rent because of the Repairs. If the Repairs shall render the
Premises untenantable and if the Repairs are not completed within one hundred
twenty (120) days after the date of the notice, requirement, order, or decree,
either party hereto upon written notice to the other party given not later than
one hundred thirty (130) days after the date of the notice, requirement, order,
or decree, may
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terminate this Lease, in which case rent shall be apportioned and paid to the
date the Premises were rendered untenantable; provided however that where the
requirement by a governmental authority having jurisdiction to repair, alter,
remove, reconstruct, or improve any part of the Premises arises out of any act
or omission by Lessee, then the Repairs shall be effected promptly at the sole
cost and expense of Lessee and there shall not, in any event, be any abatement
of rent nor any right in Lessee to terminate this Lease whether or not the
completion of the Repairs takes more than one hundred twenty (120) days.
15. TAXES. Lessor shall pay all taxes, assessments, and other
governmental charges, general or special, ordinary or extraordinary, foreseen or
unforeseen, including any installments thereof, levied, assessed, or otherwise
imposed by any lawful authority or payable with respect to the Property or the
Building.
16. LIABILITY OF LESSOR.
16.1 Subject to paragraph 9.5 hereof, Lessee shall indemnify,
defend, and hold harmless Lessor, at Lessee's expense, against (a) any default
by Lessee or any permitted assignee or subtenant hereunder; (b) any act or
negligence of Lessee, Lessee's licensees, agents, servants, employees,
contractors or subcontractors; (c) any act or negligence of the Lessee's
invitees or any other person or entity invited or allowed to come onto the
Premises by Lessee, occurring within the Premises; and (d) all claims for
damages to persons or property by reason of Lessee's use or occupancy of the
Premises. Lessee shall not be liable to Lessor, or Lessor's agents, servants,
employees, contractors, customers or invitees for any damage to person or
property caused by any act, omission or neglect of Lessor, its agents, servants
or employees. Moreover, Lessor shall not be liable for any damage, injury,
destruction, or theft to or of the Premises, the personal property of Lessee or
any of the Lessee Parties, Lessee, or any of the Lessee Parties arising from any
use or condition of the Premises, or any sidewalks, entrance ways, or parking
areas serving the Premises, or the act or neglect of co-tenants or any other
person, or the malfunction of any equipment or apparatus serving the Premises,
or any loss thereof by mysterious disappearance or otherwise, except for such
resulting from the negligence or willful act of Lessor. Any and all claims
against Lessor for any damage referred to, but not excepted, in this Section 16
are hereby waived and released by Lessee.
16.2 Lessee expressly agrees to look solely to Lessor's
interest in the Property for the recovery of any judgment against Lessor, it
being agreed that Lessor (and its partners and shareholders) shall never be
personally liable for any such judgment. The provision contained in the
foregoing sentence is not intended to, and shall not, limit any right that
Lessee might otherwise have to obtain injunctive relief against Lessor or
Lessor's successors-in-interest.
17. RIGHT OF ENTRY.
17.1 Lessor reserves the right, for itself, its mortgagees, or
their respective agents and duly authorized representatives, following
reasonable notice to Lessee except in the case of emergency in which case no
notice should be required, to enter and be upon the Premises at any time and
from time to time to inspect the Premises and to repair, maintain, alter,
improve, and remodel, but Lessor shall not materially interfere with Lessee's
normal operation except in case of an emergency. Lessee shall not be entitled to
any compensation, damages, or abatement or reduction in rent on account of any
such repairs, maintenance, alterations, improvements or remodeling. Except as
otherwise provided in this Lease, nothing contained in this Paragraph 17.1 shall
imply any duty on the part of Lessor to repair, maintain, alter, improve, or
remodel.
17.2 After notice to Lessee, Lessee shall permit Lessor or
Lessor's agents at any reasonable hour of the day to enter into or upon and go
through and view the Premises and to exhibit the Premises to prospective
purchasers or tenants.
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18. BUILDING RULES AND REGULATIONS. Lessor reserves the right to
establish commercially reasonable rules and regulations pertaining to the use
and occupancy of the Building, which rules and regulations may be changed by
Lessor from time to time. Lessee shall comply with any rules and regulations
established by Lessor pursuant to this Section 18. Building Rules and
Regulations are stated on EXHIBIT "F", attached hereto and by this reference
made a part hereof.
19. PROPERTY LEFT ON THE PREMISES. Upon the expiration of this
Lease, or if the Premises should be abandoned by Lessee, or if this Lease should
terminate for any cause, or if Lessee should be dispossessed after default, if
at the time of any such expiration, abandonment, termination or dispossession,
Lessee or its assignees, subtenants, agents, servants, employees, contractors,
or any other person controlled by Lessee or claiming under Lessee should leave
any property of any kind or character in or upon the Premises, if such property
remains in the Premises for ten (10) days after Lessor has given notice to
Lessee pursuant to Paragraph 34 herein, such property shall be the property of
Lessor and the fact of such leaving of property in or upon the Premises shall be
conclusive evidence of the intent by Lessee or such person to abandon such
property so left in or upon the Premises, and such leaving shall constitute
abandonment of the property. It is understood and acknowledged by the parties
hereto that none of Lessor's servants, agents, or employees, have or shall have
the actual or apparent authority to waive any portion of this Section 19, and
neither Lessee nor any other person designated above shall have any right to
leave any such property upon the Premises beyond the time set forth herein
without the written consent of Lessor. Lessor, its agents or attorneys, shall
have the right and authority, if such property remains in the Premises for ten
(10) days after Lessor has given notice to Lessee pursuant to Paragraph 34
herein, to remove and destroy, store, sell or otherwise dispose of, such
property, or any part thereof, without being in any way liable to Lessee or
anyone else therefor. Lessee shall be liable to Lessor for all reasonable and
necessary expenses incurred in such removal and destruction, storage, sale or
other disposition of such property. The said property removed or the proceeds
from the sale or other disposition thereof shall belong to the Lessor as
compensation for the removal and disposition of said property.
20. OTHER INTERESTS.
20.1 This Lease and Lessee's interest hereunder shall at all
times be subject and subordinate to the lien and security title of any deeds to
secure debt, deeds of trust, mortgages, or other interests heretofore or
hereafter granted by Lessor or which otherwise encumber or affect the Premises
and to any and all advances to be made thereunder and to all renewals,
modifications, consolidations, replacements, substitutions, and extensions
thereof (all of which are hereinafter called the "Mortgage"). Except as
expressly set forth in Section 20.3 to the contrary, this clause shall be
self-operative and no further instrument of subordination need be required by
any holder of any Mortgage. In confirmation of such subordination, however,
Lessee shall, within ten (10) business days after Lessor's request, promptly
execute, acknowledge, and deliver any instrument which may be required to
evidence subordination to any Mortgage and, to the holder thereof, and, in the
event of a failure so to do, Lessor may, in addition to any other remedies for
breach of covenant hereunder, execute, acknowledge, and deliver the instrument
as the agent or attorney-in-fact of Lessee, and Lessee hereby irrevocably
constitutes Lessor its attorney-in-fact for such purpose, Lessee acknowledging
that the appointment is coupled with an interest and is irrevocable. Lessee
hereby waives and releases any claim it might have against Lessor or any other
party for any actions lawfully taken by the holder of any Mortgage. At the
option of any holder of a Mortgage or any purchaser at a purchase sale of any
Mortgage, Lessee shall attorn to and recognize such holder or purchaser as the
Lessor under this Lease for the remainder of the term hereof, provided that such
holder or purchaser recognizes Lessee as the Lessee of the Premises for the
remainder of the term hereof in accordance with the provisions of this Lease;
provided however, that such holder or purchaser shall not be subject to any
offsets or defenses which Lessee might have against any prior Lessor and shall
not be liable for any act or omission of any prior Lessor. Lessee shall, at the
option of such holder or purchaser and within ten (10) business days after
request is made therefor, execute, acknowledge and deliver any instrument which
reasonably may be required to evidence such attornment on the foregoing terms.
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20.2 In the event of a sale or conveyance by Lessor of
Lessor's interest in the Premises other than a transfer for security purposes
only, Lessor shall be relieved, from and after the date of transfer, of all
obligations and liabilities accruing thereafter on the part of Lessor, provided
that any funds in the hands of Lessor at the time of transfer in which Lessee
has an interest shall be delivered to the successor of Lessor. This Lease shall
not be affected by any such sale and Lessee shall attorn to the purchaser or
assignee.
20.3 Notwithstanding paragraph 20.1, with respect to Mortgages
entered into by Lessor after the execution of this Lease, Lessee's subordination
of this Lease shall be subject to receiving a commercially reasonable
non-disturbance agreement (a "NON-DISTURBANCE AGREEMENT") from the holder of
such Mortgage, which Non-Disturbance Agreement provides that Lessee's possession
of the Premises, and this Lease, including any options to extend the term
hereof, will not be disturbed so long as Lessee is not in breach hereof and
attorns to the record owner of the Premises, at its option as provided in
paragraph 20.1. Further, within sixty (60) days after the execution of this
Lease, Lessor shall use its commercially reasonable efforts to obtain a
Non-Disturbance Agreement from the holder of any pre-existing Mortgage which is
secured by the Premises. In the event that Lessor is unable to provide the
Non-Disturbance Agreement within said sixty (60) days, then Lessee may, at
Lessee's option, directly contact Lessor's lender and attempt to negotiate for
the execution and delivery of a Non-Disturbance Agreement.
21. INTENTIONALLY OMITTED.
22. DELAYED POSSESSION. If Lessor shall fail to deliver to Lessee
actual possession of the Premises by August 1, 1998, rent shall xxxxx until
possession is given, but Lessor shall not be liable to Lessee for such failure,
and the Commencement Date shall become the date on which possession is given.
23. HOLDING OVER. There shall be no renewal, extension, or
reinstatement of this Lease by operation of law. In the event of holding over by
Lessee after the expiration or sooner termination of this Lease, with Lessor's
acquiescence and without any express agreement of the parties, Lessee shall be a
tenant at sufferance and all of the terms, covenants, and conditions of this
Lease shall be applicable during that period, except that Lessee shall pay
Lessor as Base Rent for the period of the hold over an amount equal to one and
one-half times the Base Rent which would have been payable by Lessee under
Paragraph 2.1 hereof, as adjusted in accordance with paragraph 3.1 hereof, had
the hold-over period been part of the original Lease Term, together with all
additional rent due hereunder and together with any other Amount Due under this
Lease. The rent payable by Lessee during the hold-over period shall be payable
to Lessor on demand. If Lessee holds over as a tenant at sufferance, Lessee
shall vacate and deliver the Premises to Lessor upon demand. In the event Lessee
fails to surrender the Premises to Lessor upon expiration or other termination
of this Lease or of such tenancy at sufferance, then Lessee shall indemnify
Lessor against any and all loss or liability resulting from any delay of Lessee
in surrendering the Premises, including, but not limited to, any amounts
required to be paid to third parties who were to have occupied the Premises and
any reasonable attorneys' fees related thereto.
24. NO WAIVER. Lessee understands and acknowledges that no assent,
express or implied, by Lessor to any breach of any one or more of the terms,
covenants or conditions hereof shall be deemed or taken to be a waiver of any
succeeding or other breach, whether of the same or any other term, covenant or
condition hereof.
25. BINDING EFFECT. All terms and provisions of this Lease shall be
binding upon and apply to the successors, permitted assigns, and legal
representatives of Lessor and Lessee or any person claiming by, through, or
under either of them or their agents or attorneys, subject always, as to Lessee,
to the restrictions contained in Section 11 hereof.
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26. COMPLIANCE WITH PROTECTIVE COVENANTS. In addition to and without in
any way limiting any of the other provisions of this Lease, Lessee shall comply
with any protective covenants now or hereafter of record against the Building or
the Property and with any changes to the covenants duly adopted. It is expressly
acknowledged that all uses of the Building and Premises are subject to the
covenants, conditions and restrictions of Technology Park/Atlanta, Inc. filed at
Deed Book 000, Xxxx 000, Xxxxxxxx Xxxxxx, Xxxxxxx, records, as amended and
extended.
27. SIGNS. Lessee shall not install, paint, display, inscribe, place,
or affix any sign, picture, advertisement, notice, lettering, or direction
(hereinafter collectively called "Signs") on the exterior of the Premises, the
common areas of the Building, the interior surface of glass and any other
location which could be visible from outside of the Premises without first
securing written consent from Lessor therefor, which consent shall not be
unreasonably withheld as to Signs in the Premises visible from outside or on its
exterior. Any Sign permitted by Lessor shall at all times conform with all
municipal ordinances or other laws, regulations, deed restrictions, and
protective covenants applicable thereto. Lessee shall remove all Signs at the
expiration or other termination of this Lease, at Lessee's sole risk and
expense, and shall in a good and workmanlike manner properly repair any damage
caused by the installation, existence, or removal of Lessee's Signs.
28. DIRECTORY BOARD. Lessee shall be entitled to have its name shown
upon the Directory Board of the Building. Lessor shall designate the style of
the Directory Board as well as the amount of space to be allocated to Lessee,
which Board shall be located in an area designated by Lessor in the main lobby
of the Building. As well Lessee may have its name placed upon the monument sign
subject to TPA's Design Control Committee, and that of Lessor.
29. ESTOPPEL CERTIFICATE. Lessee shall, at any time and from time to
time, upon not less than ten (10) business days' prior written notice from
Lessor, execute, acknowledge, and deliver to Lessor a statement in writing
certifying that this Lease is unmodified and in full force and effect (or if
modified, stating the nature of the modification and certifying that this Lease,
as so modified, is in full force and effect) and the dates to which the rent and
other charges are paid, and acknowledging that Lessee is paying rent on a
current basis with no offsets or claims, and that there are not, to Lessee's
knowledge, any uncured defaults on the part of Lessor hereunder (or specifying
the offsets, claims, or defaults, if any are claimed), and such other
information (including, but not limited to most recent, financial statements)
reasonably required by Lessor. It is expressly understood and acknowledged that
any such statement may be relied upon by any prospective purchaser or
encumbrancer of all or any portion of the Property or by any other person to
whom it is delivered.
30. SEVERABILITY. The terms, conditions, covenants, and provisions of
this Lease shall be deemed to be severable. If any clause or provision herein
contained shall be adjudged to be invalid or unenforceable by a court of
competent jurisdiction or by operation of any applicable law, it shall not
affect the validity of any other clause or provision herein, but the other
clauses or provisions shall remain in full force and effect.
31. ENTIRE AGREEMENT. Lessee acknowledges that there are no covenants,
representations, warranties, or conditions, express or implied, collateral or
otherwise, forming part of or in any way affecting or relating to this Lease
save as expressly set out in this Lease and that this Lease together with the
Exhibits attached hereto constitutes the entire agreement between the parties
hereto and may not be modified except as herein explicitly provided or except by
subsequent agreement in writing of equal formality hereto executed by Lessor and
Lessee.
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32. CUMULATIVE REMEDIES. In the event of any default, breach, or
threatened breach by Lessee of any of the covenants or provisions hereto, Lessor
shall, in addition to all other remedies as provided by this Lease, have the
right of injunction and/or damages and the right to invoke any remedy allowed at
law or in equity, and may have any one or more of the remedies
contemporaneously. The various rights, remedies, powers, options, and elections
of Lessor reserved, expressed, or contained in this Lease are cumulative and no
one of them shall be deemed to be exclusive of the others, or of such other
rights, remedies, powers, options, or elections as are now, or may hereafter, be
conferred upon Lessor by law.
33. PARKING AREAS AND COMMON AREA CONTROL.
33.1 Lessee acknowledges and agrees that the common areas of
the Building including, without limiting the generality of the foregoing, lawns,
gardens, parking areas, sidewalks, driveways, foyers, hallways, washrooms, and
stairwells not within the Premises shall at all times be subject to the
exclusive control and management of Lessor. Lessor shall provide Lessee, at no
charge to Lessee, parking at a ratio of four (4) parking spaces per 1,000
rentable square feet (Lessee's "Proportionate Share") on a non-reserved,
non-exclusive basis for the Lease Term including any extension thereof. Lessor
shall have the right to change the area, level, location, and arrangement of all
common areas so long as in so doing Lessor does not materially and adversely
affect ingress to and egress from the Building or the Premises.
33.2 Lessee and the Lessee Parties shall not use more than
Lessee's proportionate share of the parking spaces in the parking areas made
available to the Building by Lessor. Lessee covenants and agrees to fully
cooperate with Lessor in the enforcement of any program of rules and regulations
designed for the orderly control and operation of parking areas.
34. NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed to have been given when delivered in person three
(3) days after being deposited in the United States mail, return receipt
requested or the next business day after being placed in a nationally recognized
overnight courier (i.e., Federal Express) for next business day morning
delivery, addressed to the parties at the respective addresses set out below:
If to Lessee: nFRONT, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: President
If to Lessor: Xxxxxxxxx Atlanta, L.P.
c/o Xxxxxxx Xxxxx Hampton
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
With copy to: Xxxxxxxxx Atlanta, L.P.
c/o Technology Park/Atlanta, Inc.
Suite 150
11555 Xxxxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
Attention: President
or to such other addresses as the parties may direct from time to time by thirty
(30) days' written notice. However, the time period in which a response to any
notice, demand, or request must be given, if any, shall
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commence to run from the date of receipt of the notice, demand, or request by
the addressee thereof. Rejection or other refusal to accept or the inability to
deliver because of changed address of which no notice was given shall be deemed
to be receipt of the notice, demand, or request sent.
35. RECORDING. Neither this Lease nor any portion hereof shall be
recorded unless both parties hereto agree to the recording.
36. ATTORNEYS' FEES. Lessee agrees to pay Lessor's reasonable
attorneys' fees, collection costs and other costs and expenses which Lessor
incurs in enforcing any of the obligations of Lessee under this Lease, if Lessor
prevails in such proceedings.
37. HOMESTEAD. Lessee waives all homestead rights and exemptions which
it may have under any law as against any obligations owing under this Lease.
Lessee hereby assigns to Lessor its homestead right and exemption.
38. TIME OF ESSENCE. Time is of the essence of this Lease.
39. NO ESTATE IN LAND. This Lease shall create the relationship of
landlord and tenant between Lessor and Lessee, and nothing contained herein
shall be deemed or construed by the parties hereto, or by any third party, as
creating the relationship of principal and agent, or of partnership, or of joint
venture, or of any relationship other than landlord and tenant, between the
parties hereto. No estate shall pass out of Lessor and Lessee has only a
usufruct not subject to levy and sale.
40. ACCORD AND SATISFACTION. No payment by Lessee or receipt by Lessor
of a lesser amount than the Base Rent, additional rent, or any other Amount Due
herein stipulated shall be deemed to be other than on account of the earliest of
such amount then due, nor shall any endorsement or statement on any check or any
letter accompanying any check or payment as rent be deemed an accord and
satisfaction, and Lessor may accept the check or payment without prejudice to
Lessor's right to recover the balance of the rent or pursue any other remedy
provided in this Lease.
41. BROKERS' FEES. With the exception of Technology Park/Atlanta, Inc.,
broker representing Lessor and Xxxxxxx Xxxxxxx Company, broker representing
Lessee; Lessor and Lessee warrant and represent, each to the other, that it has
had no dealings with any broker or agent in connection with this Lease, and
Lessor and Lessee hereby indemnify each other against, and agree to hold each
other harmless from, any liability or claim (and all expenses, including
attorneys' fees, incurred in defending any such claim or in enforcing this
indemnity) for a real estate brokerage commission or similar fee or compensation
arising out of or in any way connected with any claimed dealings with the
indemnitor and relating to this Lease or the negotiation thereof. Lessor
acknowledges that Lessor shall be responsible for any and all commissions
payable to Technology Park/Atlanta, Inc. and Xxxxxxx Xxxxxxx & Company, which
will be paid commissions pursuant to separate agreements in accordance with the
terms thereof, on account of the transaction contemplated by this Lease.
42. MISCELLANEOUS.
42.1 Words of any gender used in this Lease shall be held and
construed to include any other gender, and words in the singular number shall be
held to include the plural unless the context otherwise requires.
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42.2 The captions are inserted in this Lease for convenience
only, and in no way define, limit, or describe the scope or intent of this
Lease, or of any provision hereof, nor in any way affect the interpretation of
this Lease.
42.3 This Lease is made and delivered in the State of Georgia
and shall be governed by and construed in accordance with the laws of the State
of Georgia.
For additional terms and stipulations of this Lease, if any,
see EXHIBIT "D", attached hereto and by this reference incorporated herein.
IN WITNESS WHEREOF, the parties hereto have hereunto set their
hands and seals the day and year first above written.
LESSOR:
XXXXXXXXX ATLANTA, L.P.
a Georgia limited partnership
By: S. A. Management, Inc.
a Georgia corporation, sole general partner
By: /s/ Xxxxxx X. Day
-----------------
Name: Xxxxxx X. Day
Title: VP
[Corporate Seal]
LESSEE:
NFront, Inc.
a Georgia corporation
By: /s/ Xxxxx Xxxxxxx
-----------------
Name: Xxxxx Xxxxxxx
Title: CEO
[Corporate Seal]
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