Exhibit 10.12
LEASE AGREEMENT
DATED THIS 22 DAY OF JANUARY, 1998
BY AND BETWEEN
PIEDMONT / MAPLE, L.L.C., AS LESSOR
AND
FITECH SYSTEMS, INC, AS LESSEE
EXHIBITS:
A Site Plan and Floor Plan of Expansion Premises
B Rules & Regulations
C Special Stipulations
D Floor Plan of Premises
E Floor Plan of Cancellation Right Premises
F Floor Plan of Relocation Premises
G Floor Plan of Right of First Offer Excluded Premises
FITECH LEASE ARTICLES:
ARTICLE CONTENTS
------- --------
1 Premises
2 Term
3 Rental
4 Adjustment of Base Rental (Article Intentionally Deleted)
5 Security Deposit (Article Intentionally Deleted)
6 Improvements or repairs by lessor
7 Delivery of Possession to Lessee by Lessor
8 Use of expansion premises
9 Repairs by Lessee
10 Alterations and improvements
11 Services of Lessor
12 Liability of Lessor
13 Entry for carding, etc.
14 Event of default
15 Remedies
16 Late payments
17 Assignment and subletting
18 Transfer of leases (Article Intentionally Deleted)
19 Destruction or damage to expansion premises
20 Removal of fixtures
21 Attorney's fees and homestead
22 Entire agreement
23 Time of essence
24 Mortgagee's rights
25 Sale of expansion premises by Lessor
26 No estate in land
27 Rights cumulative
28 Holding over
29 Surrender of expansion premises
30 Addresses and notices
31 Damage or theft of personal property
32 Rules and regulations
33 Eminent domain
34 Definitions
35 General liability of Lessee (Insurance requirements)
36 Disclosure of agency relationship
37 Broker
38 Special Stipulations
39 Estoppel certificate
ARTICLE CONTENTS
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Exhibit A Site Plan and Floor Plan of Expansion Premises
Exhibit B Rules & Regulations
Exhibit C Special Stipulations
Exhibit D Floor Plan of Premises
Exhibit E Floor Plan of Cancellation Right Premises
Exhibit F Floor Plan of Relocation Premises
Exhibit G Floor Plan of Right of First Offer Excluded Premises
STANDARD OFFICE BUILDING LEASE
THIS AGREEMENT (the "Lease"), made this _____ day of _______________,
19__, by and between PIEDMONT / MAPLE, L.L.C., a Georgia limited liability
company, ("Lessor") and FITECH SYSTEMS, INC., ("Lessee").
FOR AND IN CONSIDERATION of the mutual covenants and conditions
contained herein, the parties hereto do agree as follows:
1. PREMISE. Lessor, for and in consideration of the rents, covenants,
agreements and stipulations hereinafter mentioned, reserved, and contained, to
be paid, kept and performed by Lessee, has leased and rented, and by these
presents does lease and rent, unto Lessee, and Lessee hereby agrees to lease and
take upon the terms and conditions which hereinafter appear, the following
described space ("Expansion Premises"), being Suite 470, comprising
approximately 1,828 rentable square feet as shown on floor plan attached hereto
as Exhibit "A" and made a part hereof, located on the fourth floor of the
building, which is located at 0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxx Xxxxxx,
Xxxxxxx 00000 ("Building"). No easement for light or air is included in the
Expansion Premises.
2. TERM. Lessee takes and accepts from Lessor the Expansion Premises in
their present condition as suited for the intended use of Lessee for a term
beginning on the 1st day of February, 1998, and ending on the 31st day of July,
2004, at midnight, unless sooner terminated as hereinafter provided ("Lease
Term").
3. RENTAL. Lessee agrees to pay Lessor promptly on the first day of
each month in advance during the term of this Lease, monthly rental ("Base
Rental") as follows:
Period Monthly Amount
------ --------------
02/01/98 - 07/31/98 $2,399.25
08/01/98 - 07/31/99 $2,486.82
08/01/99 - 07/31/00 $2,577.59
08/01/00 - 07/31/01 $2,671.67
08/01/01 - 07/31/02 $2,769.19
08/01/02 - 07/31/03 $2,870.27
08/01/03 - 07/31/04 $2,975.03
Same shall be payable to Lessor at Lessor's address or at such other address
Lessor designates in writing. Lessee shall pay to Lessor all Base Rental and all
other charges due and owing by Lessee under the Lease without counterclaim,
deduction, or setoff. All charges, sums of money or amounts due hereunder shall
be paid as additional rental, whether or not such charges, sums or amounts are
referred to as additional rental.
6. IMPROVEMENTS OR REPAIRS BY LESSOR. Prior to commencement of the
Lease Term, Lessor will at its expense, unless otherwise stated herein,
complete, alter, renovate and/or decorate the Expansion Premises to conform to
the floor plan attached hereto as Exhibit "A" and any specifications shown
thereon. Subject to completion of any such work, if any, Lessee accepts the
Expansion Premises in their present condition and as
suited for the use intended by Lessee. Throughout the term of this Lease or any
renewal thereof, Lessor shall not otherwise be required to make any repairs or
improvements to the Expansion Premises, except repairs necessary for safety and
tenantability.
7. DELIVERY OF POSSESSION TO LESSEE BY LESSOR. If Lessor, for any
reason whatsoever, fails to deliver possession of the Expansion Premises to
Lessee at the commencement of the Lease Term as above specified, this Lease
shall not be void or voidable, nor shall Lessor be liable to Lessee for any loss
or damage resulting therefrom; but in that event, there shall be a proportionate
reduction of rent covering the period between the commencement of the Lease Term
and the time when Lessor can deliver possession.
8. USE OF EXPANSION PREMISES. Lessee shall use the Expansion Premises
only for general office purposes and shall not use the Expansion Premises for
any other purpose or illegal purpose, or violate any statute, regulation, rule,
or order of any governmental body, or create or allow to exist any nuisance or
trespass, or do any act in or about the Expansion Premises, or bring anything on
to or in the Expansion Premises or Building containing same, which will in any
way increase the rate of insurance or violate the insurance on the Expansion
Premises or Building, or deface or injure the Expansion Premises or Building, or
overload the floor of the Expansion Premises. Lessee covenants that it will not
permit any mechanic's lien or liens to be placed upon the Expansion Premises or
the Building. In the event any such lien is attached to the Expansion Premises,
then, in addition to any other right or remedy of Lessor, Lessor may, but shall
not be obligated to, discharge or bond off the same. Any amount paid by Lessor
for any of the aforesaid purposes shall be paid by Lessee to Lessor on demand as
additional rent. The Lessee's stated business is software development and
services.
9. REPAIRS BY LESSEE. Lessee, during the term of this Lease or any
extension or renewal of this Lease, shall, at its expense, make all repairs as
shall be reasonably necessary to keep the Expansion Premises in good condition
and repair, normal wear and tear excepted. Lessee further agrees that all damage
or injury of whatever nature done to the Expansion Premises by the Lessee or by
any person in or upon the Expansion Premises, except the Lessor, Lessor's
agents, servants and employees, shall be repaired by Lessee at its expense. If
Lessee fails to perform, or caused to be performed, any maintenance or repairs
required of it hereunder, then at the option of Lessor, in its discretion, any
such maintenance or repairs may be performed or caused to be performed by Lessor
and the cost and expense thereof shall be charged to Lessee, and Lessee shall
pay the amount thereof to Lessor on demand as additional rent. Lessee shall be
liable for and shall hold Lessor harmless with respect to damage or injury to
Lessor, Expansion Premises, and property or persons of Lessor's other tenants,
or any one else, if due to act of neglect of Lessee, or any one in its control
or employ. Lessee shall at once report in writing to Lessor any defective
condition known to it which Lessor is required to repair, and failure so to
report shall make Lessee responsible for damages resulting from such defective
condition.
10. ALTERATIONS AND IMPROVEMENTS. Lessee shall not make or allow to be
made any alterations, physical additions or improvements in or to the Expansion
Premises beyond the initial tenant improvements, if any, without first obtaining
Landlord's written consent, which consent may be granted or withheld in the sole
discretion of Landlord. Upon Landlord's request, Lessee will furnish plans and
specifications for any proposed alterations, additions or improvements and shall
reimburse Landlord for its reasonable costs to review such
plans. Any alterations, physical additions or improvements shall at once become
the Property of Lessor; provided, however, Lessor, at its sole option may
require Lessee to remove any alterations, additions or improvements in order to
restore the Expansion Premises to the condition existing on the Commencement
Date. All costs of any such alterations, additions or improvements shall be
borne by Lessee. All alterations, additions or improvements must be made in
good, first class, workmanlike manner that does not disturb other tenants (i.e.:
any loud work must be performed during no-business hours) and Lessee must
maintain such liability and builder's risk insurance as Lessor may reasonably
require throughout construction. Lessee does hereby indemnify, defend and hold
Lessor harmless from and against all claims for damage or destruction of
property arising out of the performance of any such alterations, additions or
improvements made by or on behalf of Lessee. Under no circumstances shall Lessor
be required to pay during the term of this Lease and any extensions or renewals
thereof, any ad valorem or Property tax on such alterations, additions or
improvements, Lessee hereby covenanting to pay all such taxes when they become
due. In the event any alterations, additions, improvements or repairs are to be
performed by contractors or workmen other than Lessor's contractors or workmen,
any such contractors or workmen must first be approved in writing by Lessor.
Lessor agrees to assign to Lessee any rights it may have against the contractor
of the Expansion Premises with respect to any work performed by said contractor
in connection with improvements made by Lessor at the request of Lessee.
11. SERVICES OF LESSOR. Lessor agrees to provide Lessee, as Lessor
deems necessary, the following services:
(a) General cleaning and janitorial service;
(b) Heating and air-conditioning service daily on Monday through Friday
(with the following holidays excepted: New Year's Day, Memorial Day,
Independence Day, Labor Day, Thanksgiving Day, and Christmas Day), from 8:00
a.m. to 6:00 p.m. and on Saturdays, if not a holiday, from 8:00 a.m. to 12:00
p.m. Lessor reserves the right to prohibit the use of heat-generating machines
and equipment unless and until arrangements are made by Lessee, acceptable to
Lessor, to install supplementary air-conditioning equipment in the Expansion
Premises at Lessee's cost and expense, and the costs of operation and
maintenance of such shall be paid by Lessee on the monthly rental payment dates
at such rates as are established by Lessor. Should Lessee desire either heating
or air-conditioning at times when such services are not furnished by Lessor
under the terms of the Lease, Lessor will furnish such services only if
authorized by Lessee at Lessee's expense and at such hourly charge as is from
time to time determined by Lessor, which charges Lessee shall promptly pay on
being billed by Lessor. Lessor also reserves the right separately to submeter
and xxxx Lessee as additional rent for excessive use of any utilities, such as
electric, water, gas, etc. or arrange for master metering or billing of certain
utilities that will benefit all tenants, in Lessor's sole opinion, in the
building;
(c) Elevator service daily, applicable, on Monday through Friday (with
the following holidays excepted: New Year's Day, Memorial Day, Independence Day,
Labor Day, Thanksgiving Day, and Christmas Day), from 8:00 a.m. to 6:00 p.m. and
on Saturdays, if not a holiday, from 8:00 a.m. to 12:00 p.m.;
(d) Electric current for lighting, and reasonable facilities for
furnishing 110 volt electric power for usual and normal office equipment; and
(e) Common use restrooms and toilets.
12. LIABILITY OF LESSOR. Lessor shall not be liable to Lessee in any
manner whatsoever for failure to furnish or delay in furnishing any service
provided for in this Lease and no such failure or delay to furnish any service
or services by Lessor shall be an actual or constructive eviction of Lessee nor
shall any such event operate to relieve Lessee from the prompt and punctual
performance of each and all the covenants to be performed herein by Lessee, nor
shall Lessor be liable to Lessee for damage to person or property caused by
defects in the cooling, heating, electric, water, elevator or other apparatus or
systems or by water discharged from sprinkler systems, if any, in the Building;
nor for the theft, mysterious disappearance, or loss of any property of Lessee
whether from the Expansion Premises or any part of the Building or property
adjoining the Building. Lessor agrees to make reasonable efforts to protect
Lessee from interference or disturbance by third persons including other
tenants. However, Lessor shall not be liable for any such interference or
disturbance whether caused by another tenant or tenants of Lessor or other
persons, nor shall Lessee be relieved from any obligation herein because of such
interference, disturbance or breach. Lessor shall have the right to change the
name of the Building or the design or construction thereof whenever Lessor, in
its sole discretion, deems it appropriate without any liability to Lessee and
without any consent of Lessee being necessary. Lessor shall have no personal
liability with respect to the provisions of this Lease, and if Lessor is in
default with respect to its obligations hereunder, Lessee shall look solely to
Lessor's equity in the Expansion Premises for satisfaction of Lessee's remedies.
In no event shall Lessor's liability exceed such equity.
13. ENTRY FOR CARDING, ETC. Lessor may card the Expansion Premises "FOR
RENT" or "FOR SALE" sixty (60) days before the termination of this Lease or any
renewal thereof. Lessor may enter the Expansion Premises at reasonable hours to
exhibit same to prospective purchasers, lenders or tenants and to make repairs
required of Lessor under the terms hereof, or to make repairs to Lessor's
adjoining property, if any.
14. EVENT OF DEFAULT. The occurrence of any of the following shall
constitute a material breach and an event of default of this Lease by Lessee:
(a) If the Base Rental or any other sum of money payable under this
Lease is not paid when due;
(b) If, for a period of thirty (30) consecutive days, the Expansion
Premises are deserted or vacated even though Lessee continues to pay the
stipulated monthly rent;
(c) Any petition is filed by or against Lessee under any section or
chapter of the Federal Bankruptcy Act;
(d) Lessee shall become insolvent or transfer property in fraud or
creditors;
(e) Lessee shall make an assignment for benefit of creditors;
(f) A receiver is appointed for any of Lessee's assets; or
(g) Lessee breaches or fails to comply with any term, provision,
condition, or covenant of this Lease, other than the payment of Base Rental and
any other sum due and payable hereunder, or if Lessee breaches or fails to
comply with any of the Rules and Regulations now or hereafter from time to time
established by Lessor to govern the operation of the Building, and such breach
or failure is not cured within seven (7) days after written notice of such
breach or failure is given by Lessor to Lessee.
15. REMEDIES.
(a) Upon the occurrence of an event of default, Lessor shall have the
option to do and perform any one or more of the following:
(i) Lessor, with or without terminating this Lease, may
immediately or at any time thereafter as long as such event of default
remains uncured, reenter the Expansion Premises and perform, correct or
repair any condition, which shall constitute a failure on Lessee's part
to keep, observe, perform, satisfy, or abide by any term, condition,
covenant, agreement, or obligation of this Lease or of the Rules and
Regulations now in effect or hereafter adopted, and Lessee shall fully
reimburse and compensate Lessor on demand, as additional rent, all
costs and expenses incurred by Lessor in such performance, correction
or repairing.
(ii) Lessor, with or without terminating this Lease, may
immediately or at any time thereafter so long as such event of default
remains uncured, demand in writing that Lessee vacate the Expansion
Premises and thereupon Lessee shall vacate the Expansion Premises and
remove therefrom all property thereon belonging to or placed on the
Expansion Premises by, at the direction of, or with consent of Lessee
within ten days of such notice from Lessor, whereupon Lessor shall have
the right to reenter and take possession of the Expansion Premises. Any
such demand, reentry and taking possession of the Expansion Premises by
Lessor shall not of itself constitute an acceptance by Lessor of a
surrender of this Lease or of the Expansion Premises by Lessee and
shall not of itself constitute a termination of this Lease by Lessor.
(iii) Lessor, with or without terminating this Lease, may
immediately or at any time thereafter so long as such event of default
remains uncured, relet the Expansion Premises or any part thereof for
such time or times, at such rental or rentals and upon such terms and
conditions as Lessor, in its sole discretion, may deem advisable, and
Lessor may make any alterations or repairs to the Expansion Premises
which it may deem necessary or proper to facilitate such reletting; and
Lessee shall pay all costs and expenses of such reletting including,
but not limited to, the cost of any such alterations and repairs to the
Expansion Premises, attorney's fees, and brokerage commissions; and, if
this Lease shall not have been terminated, Lessee shall continue to pay
all Base Rental and all other charges due under this Lease up to and
including the date of beginning of payment of rent by any subsequent
tenant of part or all of the Expansion Premises, and thereafter Lessee
shall pay monthly during the remainder of the term of this Lease the
difference, if any, between the rent and other charges collected from
any such subsequent
tenant or tenants and the rent and other charges reserved to this
Lease, but Lessee shall not be entitled to receive or receive credit
for any excess of any such rents collected over the rents reserved
herein.
(iv) Lessor may immediately, or at any time thereafter so long
as such event of default remains uncured, terminate this Lease, and
this Lease shall be deemed to have been terminated upon written notice
of such termination given by Lessor to Lessee. Upon such termination,
Lessor shall recover from Lessee all damages Lessor may suffer by
reason of such termination including, without limitation, unamortized
sums expended by Lessor for construction of improvements, all
arrearages in rentals, costs, charges, additional rentals, and
reimbursements, the costs (including court costs and attorneys' fees)
of recovering possession of the Expansion Premises, the costs of any
alteration of or repair to the Expansion Premises, which is necessary
or proper to prepare the same for reletting. In addition thereto,
Lessor, at its election, shall have the right to collect as liquidated
damages, and not as a penalty, and in addition to all Base Rental and
other amounts previously due and unpaid under the terms and conditions
of this Lease, the accelerated present value of the Base Rental, and
all other sums provided herein to be paid by Lessee during the
remainder of the term of this Lease (the "Rent Balance"), less the Net
Rental Value of the Expansion Premises as hereinafter defined. The term
"Net Rental Value" shall mean the fair rental value of the Expansion
Premises for the remainder of the term of this Lease reduced to present
value, less Lessor's costs, expenses and attorney's fees in connection
with the preparation of the Expansion Premises for reletting and for
the reletting itself. The Lessor and Lessee agree that in no event
shall the Net Rental Value exceed the Rent Balance. Lessor and Lessee
further agree that the damages caused by the Lessee's default would be
difficult or impossible to estimate accurately and that this measure of
damages is a reasonable pre-estimate of Lessor's probable loss
resulting from Lessee's breach. The acceptance of the liquidated
damages set forth in this subsection (iv) shall not constitute a waiver
of any failure of Lessee thereafter occurring to comply with any term,
provision, condition or covenant of this Lease.
(v) In addition to the foregoing, Lessor shall be entitled to
exercise any and all remedies available to Lessor at law or in equity
as a result of the occurrence of an event of default by Lessee under
this Lease.
(b) If Lessor reenters the Expansion Premises or terminates this Lease
pursuant to any of the provisions of this Lease, Lessee hereby waives all claims
for damages which may be caused by such reentry or termination by Lessor. Lessee
shall and does hereby agree to indemnify and hold Lessor harmless from any loss,
cost (including court costs and attorney's fees), or damages suffered by Lessor
by reason of such reentry or termination.
(c) No course of dealing between Lessor and Lessee or any failure or
delay on the part of Lessor in exercising any rights of Lessor under this
Section, or under any other provisions of this Lease, shall operate as a waiver
of any rights of Lessor hereunder or under any other provisions of this Lease,
nor shall any waiver of an event of default on one occasion operate as a waiver
of any subsequent event of default or of any other event of default. No express
waiver
shall affect any condition, covenant, rule, or regulation other than the one
specified in such waiver and that one only for the time and in the manner
specifically stated.
(d) The exercise by Lessor of any one or more of the rights and
remedies provided in this Lease shall not prevent the subsequent exercise by
Lessor of any one or more of the other rights and remedies herein provided.
16. LATE PAYMENTS. It is acknowledged by the parties hereto that the
late payment by Lessee to Lessor of Base Rental or any other sums due hereunder
will cause Lessor to incur costs not contemplated by this Lease, the exact
amount of which would be extremely difficult and impractical to ascertain.
Therefore, Lessee shall pay, as a late charge in the event any installment of
Base Rental or other charge to be paid by Lessee hereunder is not paid when due,
a sum equal to the greater of one hundred dollars or an amount equal to five
percent of the amount due for each and every ten day period that said amount
remains unpaid. Should Lessee make a partial payment of past due amounts, the
amount of such partial payment shall be applied to reduce all accrued and unpaid
late charges, in the order of their accrual, and then to reduce all other past
due amounts, in the order of their maturity. The parties agree that such late
charge represents the fair and reasonable estimate of the cost Lessor will incur
by reason of late payment by Lessee. Acceptance of such late charge by Lessor
shall in no event constitute waiver of Lessee's default with respect to such
overdue amount, nor prevent Lessor from exercising any of the other rights and
remedies granted hereunder. All rent not paid when due, including any and all
late charges as provided in this Section above, shall bear interest at the rate
of one and one-half percent per month, or the maximum rate permitted by law,
whichever is higher.
17. ASSIGNMENT AND SUBLETTING. Lessee may not, without the prior
written consent of Lessor, which consent shall not be unreasonably withheld,
assign this Lease or any interest hereunder, or sublet the Expansion Premises or
any part thereof; or permit the use of the Expansion Premises by any party other
than Lessee. Any such approved assignment or subletting shall only be to a
tenant whose business is similar to that of Lessee. Consent to one assignment or
sublease shall not destroy or waive this provision, and all later assignments
and subleases shall likewise be made only upon prior written consent of Lessor.
Subtenants or assignees shall become liable directly to Lessor for all
obligations of Lessee hereunder, without relieving Lessee's liability. Lessee
agrees to pay to Lessor, on demand, reasonable costs incurred by Lessor in
connection with any request by Lessee for Lessor to approve the assignment of
this Lease or the subletting of the Expansion Premises by Lessee. If any profit
or additional consideration is payable or paid by the sublessee or assignee to
Lessee or Lessee's agents or representatives, Lessee shall promptly pay such
amount to Lessor as additional rental when rent is due. 19. DESTRUCTION OR
DAMAGE TO EXPANSION PREMISES.
(a) If the Expansion Premises are damaged partially or wholly by fire,
the elements, act of God or other casualty, and if such damage cannot, in
Lessor's reasonable estimation, be materially restored within one hundred eighty
days of such damage, then Lessor may, at its sole option, terminate this Lease
as of the date of such fire or casualty and the Lease Term shall end on such
date as if that date had been originally fixed in this Lease for the expiration
of the Lease Term. Lessor shall exercise its option provided herein by written
notice to Lessee within ninety days of such fire or other casualty.
(b) If this Lease is not terminated pursuant to subsection (a) above,
then Lessor shall proceed with due diligence to repair and restore the Expansion
Premises (except that Lessor may elect not to rebuild, and thus terminate this
Lease, if such damage occurs during the last year of the Lease Term, excluding
any option which is unexercised at the date of such damage). Lessor's obligation
to restore the Expansion Premises under the preceding sentence shall be
discharged upon restoration of those tenant improvements in the Expansion
Premises initially paid for by Lessor. In no event shall Lessor be required to
rebuild, repair, or replace any personal property, equipment, or trade fixtures
which belong to Lessee.
(c) If this Lease is not terminated by Lessor pursuant to this Section
18 and if Lessor shall determine that the Expansion Premises are unfit for
occupancy in whole or in part following such damage, the Base Rental payable
during the period in which the Expansion Premises are deemed by Lessor to be
unfit for occupancy shall xxxxx in proration to the number of square feet of the
Expansion Premises rendered unusable by such damage; provided, however, that no
such abatement and reduction shall be made under the provisions of this
subsection (c) in the event such damage shall have been caused through the
negligence or willful misconduct of Lessee, its agents, employees, contractors,
invitees, licensees, tenants, or assignees.
(d) Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed to secure debt covering
the Expansion Premises or Building requires that any insurance proceeds be paid
to it, then Lessor shall have the right to terminate this Lease by delivering
written notice of termination to Lessee within fifteen days after such
requirement is made by any such person, whereupon the Lease shall end on the
date of such damage as if the date of such damage were the date originally fixed
in this Lease for the expiration of the Lease Term.
(e) If any such casualty stated in this Section 18 occurs, Lessor shall
not be liable to Lessee for inconvenience, annoyance, loss of profits, expenses,
or any other type of injury or damage resulting from the repair of any such
damage, or from any repair, modification, arranging, or rearranging of any
portion of the Expansion Premises or any part or all of the Building or for
termination of this Lease as provided in this Section 18.
20. REMOVAL OF FIXTURES. Lessee may (if not in default hereunder) prior
to the expiration of this Lease or any renewal thereof, remove all fixtures and
equipment which he have been placed in the Expansion Premises by Lessee,
provided Lessee restores the Expansion Premises to their existing condition at
the installation thereof. Any property of Lessee which Lessee fails to remove
from the Expansion Premises prior to the expiration of this Lease shall be
deemed abandoned by Lessee and may be disposed of by Lessor. Additionally any
additions and leasehold improvements made or placed in or upon the Expansion
Premises by Lessor or Lessee shall be and become Lessor's property at the end of
the term of this Lease, all without compensation or payment to Lessee, and shall
remain upon and in the Expansion Premises during and at the termination of this
lease. Any property of Lessee which Lessee fails to remove from the Expansion
Premises prior to the expiration of this Lease shall be deemed abandoned by
Lessee and may be disposed of by Lessor.
21. ATTORNEY'S FEES AND HOMESTEAD. If any rent owing under this Lease
is collected by or through an attorney at law, Lessee agrees to pay to Lessor
fifteen percent (15%)
thereof as attorneys' fees or the actual attorney's fees plus a fifteen percent
(15%) administrative charge, whichever is less. Lessee waives all homestead
rights and exemptions which he may have under any laws as against any obligation
owing under this Lease. Lessee hereby assigns to Lessor his homestead and
exemption.
22. ENTIRE AGREEMENT. This Lease, including any attachments made a part
hereof, contains the entire agreement of the parties and no representations,
inducements, promises or agreements, oral or otherwise, between the parties not
embodied herein shall be of any force or effect. No failure of Lessor to
exercise any power given Lessor hereunder, or to insist upon strict compliance
by Lessee of any obligation hereunder, and no custom or practice of the parties
at variance with the terms hereof shall constitute a waiver of Lessor's right to
demand exact compliance with the terms hereof.
23. TIME OF ESSENCE. Time is of the essence of this Agreement.
24. MORTGAGEE'S RIGHTS. This Lease and all rights of Lessee hereunder
and shall be subject and subordinate to the lien of any mortgage, deed to secure
debt, deed of trust, or other instrument encumbering the fee title of the
Expansion Premises and to any modifications, renewals, consolidations,
extensions or replacements thereof. Such subordination is and shall be
self-operative. No further instrument of subordination shall be required by the
holder of any such mortgage, deed to secure debt, deed of trust or other
instrument affecting and encumbering the fee title of the Expansion Premises. In
confirmation of such subordination, Lessee agrees upon request to hereafter
execute and deliver any paper or papers which the counsel for Lessor may deem
necessary to evidence such subordination and, in default of Lessee so doing,
Lessor is hereby empowered as Lessee's attorney-in-fact to execute and deliver
such paper or papers in the name of Lessee, and as the act and deed of Lessee,
and this authority is hereby declared to be coupled with an interest and not
revocable. If the holder of any mortgage, deed to secure debt, deed of trust or
other instrument affecting or encumbering the Building or the land underlying
the Building or if the lessor under any ground lease affecting the Building or
the land underlying the Building shall hereafter succeed to the rights of Lessor
under this Lease, whether through possession or foreclosure action or exercise
of private power of sale or delivery of a new lease, Lessee shall, at the option
of such holder or lessor, attorn to and recognize such successor as Lessee's
lessor under this Lease as of the date of such succession to Lessor's interest
and shall promptly execute and deliver any instrument that may be necessary to
evidence such attornment, and Lessee hereby irrevocably appoints Lessor or such
holder or such lessor the attorney-in-fact of Lessee to execute and deliver such
instrument on behalf of Lessee should Lessee refuse and fail to do so within ten
(10) days after Lessor or such holder or such lessor shall have given notice to
Lessee requesting the execution and delivery of such instrument. Upon such
attornment, this Lease shall continue in full force and effect as a direct lease
between such successor Lessor and Lessee, subject to all the terms, covenants
and conditions of this Lease. At any time and from time to time, Lessee, on or
before the date specified in a request therefor made by Lessor, which date shall
not be earlier than ten days after Lessor's making of such request, shall
execute, acknowledge, and deliver to Lessor a certificate evidencing whether or
not (i) this Lease is in full force and effect, (ii) this Lease has been amended
in any way and attaching a copy of any such instrument of amendment, (iii) there
are any existing events of default on the part of Lessor hereunder to the
knowledge of Lessee and specifying with particularity the nature of such events
of default, if any, and (iv) rent, and other amounts due hereunder, if any, have
been paid, and certifying to such other matters as Lessor may reasonably
request. Each certificate delivered pursuant to this Section may be relied on by
any prospective purchaser or transferee of Lessor's interest hereunder or of any
part of Lessor's property or by any mortgagee of Lessor's interest hereunder.
Notwithstanding the foregoing, Lessee shall, upon demand, at any time or times,
execute, acknowledge and deliver to Lessor or to the holder of a mortgage, deed
to secure debt, deed of trust or other instrument encumbering the Expansion
Premises, without expense, any and all instruments that may be necessary to make
this Lease superior to the lien of such mortgage, deed to secure debt, deed of
trust or other instrument.
25. SALE OF EXPANSION PREMISES BY LESSOR. In the event of any sale of
the Expansion Premises by Lessor, Lessor shall be and is hereby entirely freed
and relieved of all liability to Lessee under any and all of its covenants and
obligations contained in or derived from this Lease arising out of any act,
occurrence or omission occurring after the consummation of such sale.
26. NO ESTATE IN LAND. This Lease shall create the relationship of
landlord and tenant between Lessor and Lessee; no estate shall pass out of
Lessor, Lessee has only a usufruct, not subject to levy and sale and not
assignable by Lessee except by Lessor's prior written consent. Lessee expressly
acknowledges and agrees that nothing contained in this Lease shall authorize or
permit nor is it intended to authorize or permit, Lessee or any of its agents,
employees or invitees to use the parking located adjacent to the Building for
any purpose whatsoever unless such use is specifically authorized or permitted
by agreements with Lessor contained in this Lease. This Lease is not in
recordable form, and Lessee agrees not to record or permit the recording of this
Lease.
27. RIGHTS CUMULATIVE. All remedies provided for in this Lease are
cumulative and may, at the election of Lessor, be exercised alternatively,
successively, or in any other manner and are in addition to, and not in lieu of,
any other rights provided for in this Lease or allowed by law or in equity.
28. HOLDING OVER. If Lessee remains in possession after expiration of
the Lease Term hereof, with Lessor's acquiescence and without any written
agreement of the parties hereto, Lessee shall be a month-to-month tenant at one
hundred twenty percent (120%) of the rental rate in effect at the end of the
Lease; and there shall be no renewal of this Lease by operation of law.
Notwithstanding the notice provision of Official Code of Georgia Annotated
Section 44-7-7, as the same may be now or hereafter amended, Lessor and Lessee
expressly agree that any month-to-month tenancy created pursuant to the terms of
this Section may be terminated upon thirty days' prior written notice by either
party to this Lease to the other party.
29. SURRENDER OF EXPANSION PREMISES. At termination of this Lease,
Lessee shall surrender the Expansion Premises and keys thereof to Lessor in the
same condition as at commencement of the term, natural wear and tear only
excepted.
30. ADDRESSES AND NOTICES.
(a) Except for legal process, which may also be served as by law
provided or as provided below, all notices required or desired to be given with
respect to this Lease shall, in
order to be effective, be in writing and shall be deemed to be given to and
received by the party intended to receive such notice when hand delivered or
three days after such notice shall have been deposited, postage prepaid, to the
United States mail, certified, return receipt requested, properly addressed to
the addresses set forth in this Section below, with the return receipt
evidencing actual receipt. In the event of a change of address by either party,
such party shall have written notice thereof to the other party in accordance
with the foregoing.
(b) To the extent permitted by law, (i) Lessee hereby appoints and
designates the Expansion Premises as a proper place for service of process upon
Lessee, and agrees that service of process upon any person apparently employed
by Lessee at or about the Expansion Premises or by leaving process in a
conspicuous place within the Expansion Premises or by the mailing of a copy
thereof by certified mail at Lessee's address set forth in this Section below
shall constitute personal service of such process upon Lessee (provided,
however, Lessor does not hereby waive the right to serve Lessee with process by
any other lawful means), (ii) Lessee hereby expressly waives the service of any
notice under any existing or future law of the State of Georgia applicable to
landlords and tenants, and (iii) Lessee hereby submits to the jurisdiction of
any state or federal court located in Xxxxxx County, Georgia, as well as to the
jurisdiction of all courts from which an appeal may be taken from the aforesaid
courts for the purpose of any suit, action or other proceeding arising out of
Lessee's obligations under or with respect to this Lease and Lessee hereby
expressly waives any and all objections that Lessee may have as to jurisdiction
and/or venue in any of such courts.
Lessor's address: Piedmont Maple L.L.C.
0000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxx Xxxxxxx & Xxxxx Xxxxxxxxxxx
Lessee's address: FITECH Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxx #000
Xxxxxxx, Xxxxxxx 00000
31. DAMAGE OR THEFT OF PERSONAL PROPERTY. Lessee agrees that all
personal property brought into the Expansion Premises shall be at the risk of
Lessee only and that Lessor shall not be liable for theft thereof or any damages
thereto occasioned from any act of co-tenants, or other occupants of the
Building or any other person.
32. RULES AND REGULATIONS. The rules and regulations in regard to the
Building, attached hereto as Exhibit "B" and all rules and regulations which
Lessor may hereafter, from time to time, adopt and promulgate for the government
and management of said Building, are hereby made a part of this Lease and shall,
during the Lease Term, be in all things observed and performed by Lessee and by
Lessee's employees, servants and agents.
33. EMINENT DOMAIN. It is mutually agreed that if the whole or any part
of the Expansion Premises shall be taken permanently (as opposed to temporary
appropriation) by Federal, State, County or City authority for public use, or
under any statute, or by right of
eminent domain, then when possession shall be taken thereunder of the Expansion
Premises, or any part thereof, the term hereby granted and all rights of the
Lessee thereunder shall immediately cease and terminate. And it is expressly
agreed that Lessee shall not have any right or claim of any award made to or
received by Lessor for such taking.
34. DEFINITIONS. "Lessor" as used in this Lease shall include the first
party, its heirs, representatives, assigns and successors in title to the
Expansion Premises. The term "Lessee" and the term "Tenant" shall have the same
meaning herein. "Lessee" shall include the second party, its heirs and
representatives, and if this Lease shall be validly assigned or sublet, shall
include also Lessee's assignees or subleases, as to the Expansion Premises
covered by such assignment or sublease. "Lessor" and "Lessee" shall include male
and female, singular and plural, corporation, partnership or individual, as may
fit the particular parties. If more than one individual or entity comprises and
constitutes Lessee, then all individuals and entities comprising Lessee are and
shall each be jointly and severally liable for the due and proper performance of
Lessee's covenants, duties and obligations arising under or in connection with
this Lease.
35. GENERAL LIABILITY OF LESSEE. Lessee hereby agrees to hold Lessor
harmless and free from Liability because of injury to Lessee, its agents,
servants, employees, or third persons while in or on the Building or Expansion
Premises. Lessee shall be liable for and shall hold Lessor harmless in respect
of: damage or injury to Lessor, Expansion Premises, and property or persons of
Lessor's other tenants, or any one else, if due to act or neglect of Lessee, or
anyone in his control or employ. Lessee shall at once report in writing to
Lessor any defective condition known to him which Lessor is required to repair,
and failure to so report shall make Lessee responsible for damages resulting
from such defective condition. Lessee shall maintain at its expense, in an
amount equal to full replacement cost, broad form fire and extended coverage
insurance on its improvements in the Expansion Premises, and all of Lessee's
personal property, including removable trade futures, located in the Expansion
Premises. Lessee shall also, at its own expense, maintain a policy or policies
of comprehensive general liability insurance with respect to its activities in
the Building, such insurance to afford minimum protection of not less than
$1,000,000.00 combined single limit. Lessor and Lessee shall each endeavor to
have included in all policies of insurance respectively obtained by them with
respect to the Building and/or Expansion Premises a waiver by the insurer of all
the right of subrogation against the other in connection with any loss or damage
thereby insured against, and Lessor or Lessee, as the case may be, shall not be
liable to the other for loss or damage caused by any risk covered by any such
insurance which includes a waiver of all right of subrogation against Lessor or
Lessee, as the case may be.
Lessee shall, during term of this Lease, procure at its expense and
keep in force the following insurance:
(i) Commercial general liability insurance naming the Lessor
as an additional insured against any and all claims for bodily injury
and property damage occurring in, upon or about the Expansion Premises
arising out of Lessee's use and occupancy of the Expansion Premises.
Such insurance shall have a combined single limit of not less than One
Million Dollars ($1,000,000.00) per occurrence with a Two Million
Dollar ($2,000,000.00) aggregate limit and excess umbrella liability
insurance in the amount of Two Million Dollars ($2,000,000.00). If the
Lessee has other locations that it owns or
leases, the policy shall include an aggregate limit per location
endorsement. Such liability insurance shall be primary and not
contributing to any insurance available to Lessor and Lessor's
insurance shall be in excess thereto. In no event shall the limits of
such insurance be considered as limiting the liability of Lessee under
this Lease.
(ii) Personal property insurance insuring all equipment, trade
fixtures, inventory, fixtures and personal property located in, upon or
about the Expansion Premises for perils coverage by the causes of
loss-special form (all risk) and in addition, coverage for flood,
earthquake and boiler and machinery (if applicable). Such insurance
shall be written on a replacement cost basis in an amount equal to one
hundred percent (100%) of the full replacement value of the aggregate
of the foregoing.
(iii) Worker's compensation insurance in accordance with
statutory law and employer's liability insurance with a limit of not
less than $1,000,000 per employee and $500,000 per occurrence.
(iv) Such other insurance as Lessor deems necessary and
prudent or required by Lessor's beneficiaries, lenders or mortgagees of
any deed to secure debt or mortgage encumbering the Expansion Premises.
The policies required to be maintained by Lessee shall be with
companies rated A+ or better in the most current issue of Best's Insurance
Reports. Insurers shall be licensed to do business in the state in which the
Expansion Premises are located and compiled in the USA. Any deductible amounts
under any insurance policies required hereunder shall not exceed $1,000.
Certificates of insurance (certified copies of the policies may be required)
shall be delivered to Lessor prior to the commencement date and annually
thereafter at least thirty (30) days prior to the expiration date of the old
policy. Lessee shall have the right to provide insurance coverage which it is
obligated to carry pursuant to the terms hereof in a blanket policy, provided
such blanket policy expressly affords coverage to the Expansion Premises and to
Lessor as required by this Lease. Each policy of insurance shall provide
notification to Lessor at least thirty (30) days prior to any cancellation or
modification to reduce the insurance coverage.
In the event Lessee does not purchase the insurance required by this
Lease or keep the same in full force and effect, Lessor may, but shall not be
obligated to, purchase the necessary insurance and pay the premium. The Lessee
shall repay to Lessor, as additional rent, the amount so paid promptly upon
demand. In addition, Lessor may recover from Lessee and Lessee agrees to pay, as
additional rent, any and all reasonable expenses (including attorneys' fees) and
damages which Lessor may sustain by reason of the failure of Lessee to obtain
and maintain such insurance.
Lessor and Lessee hereby mutually waive their respective rights of
recovery against each other for any loss of, or damage to, either party's
property, to the extent that such loss or damage is insured by an insurance
policy required to be in effect at the time of such loss or damage. Each party
shall obtain any special endorsements, if required by its insurer, whereby the
insurer waives its rights of subrogation against the other party. The provisions
of this clause shall not apply in those instances in which waiver of subrogation
would cause either party's insurance coverage to be voided or otherwise made
uncollectible.
36. DISCLOSURE OF AGENCY RELATIONSHIP. The parties hereto do hereby
make the disclosure set forth in the section next to the blank line checked
below:
_________ (a) WHEN ONLY ONE REAL ESTATE FIRM IS INVOLVED IN THE
TRANSACTION AND IT ACTS AS AGENT OF LESSOR: XXXX XXXX
PROPERTIES, INC. has acted as agent for Lessor in this
transaction and is to be paid a commission by Lessor. XXXX
XXXX PROPERTIES, INC. has not acted as agent in this
transaction for Lessee.
X________ (b) WHEN ONE REAL ESTATE FIRM ACTS AS AGENT FOR LESSOR
AND ANOTHER REAL ESTATE FIRM ACTS AS AGENT FOR THE LESSEE IN
THE TRANSACTIONALAN XXXX PROPERTIES, INC. has acted as agent
for Lessor in this transaction and is to be paid a commission
by Lessor. XXXX XXXXXXXX & ASSOCIATES, LTD. has acted as agent
for Lessee in this transaction and is to be paid a commission
by Lessor.
_________ (c) WHEN TWO REAL ESTATE FIRMS ARE ACTING AS AGENTS IN
THE TRANSACTION AND BOTH ARE ACTING AS AGENTS FOR LESSOR:
________ and ________ have acted as agents for Lessor in this
transaction and are to be paid a commission by Lessor. Neither
_________ nor _________ has acted as agent for Lessee in this
transaction.
_________ (d) WHEN ONLY ONE REAL ESTATE FIRM IS INVOLVED IN THE
TRANSACTION AND IT ACTS AS AGENT OF LESSEE: _________ has
acted as agent for Lessee in this transaction and is to be
paid a commission by Lessor. __________ has not acted as agent
for Lessor in this transaction.
37. BROKER. Lessee represents and warrants to Lessor that no broker,
agent, commission salesperson, or other person has represented Lessee in the
negotiations for and procurement of this Lease and of the Expansion Premises
(except as disclosed in Section 36) and that no commissions, fees, or
compensation of any kind are due and payable in connection herewith to any
broker, agent, commission salesperson, or other person (except as disclosed in
Section 36). Lessee agrees to indemnify and hold Lessor harmless from all loss,
cost and damage (including reasonable attorneys' fees and court costs) suffered
or incurred by Lessor as a result of a breach by Lessee of the representation
and warranty contained in the immediately preceding sentence or as a result of
Lessee's failure to pay commissions, fees or compensation due to any broker who
represented Lessee, whether or not disclosed.
38. SPECIAL STIPULATION. Any special stipulations attached hereto shall
become a part of this Lease to the same extent as though set out in full herein.
39. ESTOPPEL CERTIFICATE. Lessee shall deliver to Lessor within 5 days'
written notice of request any estoppel certificate or instrument indicating the
current status of this Lease agreement as provided by Lessor or Lessor's agent.
SIGNATURE PAGE TO FOLLOW
IN WITNESS WHEREOF, the parties have hereunto set their hands and
affixed their seals the day and year first above written.
"LESSOR":
Signed, sealed and delivered
in the presence of: PIEDMONT MAPLE L.L.C.
By: /s/ illegible
------------------------------------
/s/ Xxxxx X. Xxxxx Its: illegible
----------------------------------- -------------------------------
Witness
By: /s/ illegible
------------------------------------
Its: illegible
-------------------------------
"LESSEE":
Signed, sealed and delivered
in the presence of: FITECH SYSTEMS, INC.
By: /s/ illegible
------------------------------------
/s/ illegible Its: Sr. VP/Controller
----------------------------------- -------------------------------
Witness
"AGENT":
Signed, sealed and delivered
in the presence of: XXXX XXXX PROPERTIES, INC.
By: /s/ illegible
------------------------------------
Its: President
----------------------------------- -------------------------------
Witness
EXHIBIT "A"
[Diagram of city block bordered on three sides by Maple Drive, East Paces Ferry
Road and Pedmont Road]
EXHIBIT "A"
[Diagram of fourth floor of 0000 Xxxxxxxx Xxxx]
EXHIBIT "B"
RULES AND REGULATIONS
(i) The sidewalks and public portions of the Building, such as entrances,
passages, courts, elevators, vestibules, stairways, corridors or halls,
and the streets, alleys or ways surrounding or in the vicinity of the
Building shall not be obstructed, even temporarily, or encumbered by
Lessee, or used for any purpose other than ingress or egress to and
from the Expansion Premises.
(ii) No awnings or other projections shall be attached to the outside walls
of the Building. No curtains, blinds, shades, louvered openings, tinted
coating, film or screens shall be attached to or hung in, or used in
connection with, any window, glass surface or door of the Expansion
Premises, without the prior written consent of Lessor, unless installed
by Lessor.
(iii) No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by Lessee on any part of the outside of
the Expansion Premises or Building or on corridor walls. Signs on
entrance door or doors shall be installed by a vendor approved by
Lessor and shall conform to building standard signs. Signs on doors
shall, at Lessee's expense, be inscribed, painted or affixed for each
tenant by sign markers approved by Lessor. In the event of the
violation of the foregoing by Lessee, Lessor may remove same without
any liability, and may charge the expense incurred by such removal to
Lessee as additional rent under the Lease.
(iv) The sashes, sash doors, skylights, windows, heating, ventilating and
air-conditioning vents and doors that reflect or admit light and air
into the halls, passageways or other public places in the Building
shall not be covered or obstructed by Lessee, nor shall any plants,
bottles, parcels, or other articles be placed on the window xxxxx.
(v) No show cases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the public
balls, corridors, or vestibules, without the prior written consent of
Lessor.
(vi) The water and wash closets and other plumbing fixtures shall not be
used for any purposes other than those for which they were constructed,
and no sweepings, rubbish, rags, or other substances shall be thrown
therein. All costs and expenses resulting from any misuse of the
fixtures shall be borne by Lessee as additional rent under the Lease.
(vii) Lessee shall not in any way deface any part of the Expansion Premises
or the Building. Lessee shall not lay linoleum, or other floor
covering, so that the same shall come in direct contact with the floor
of the Premise, and, if linoleum or other floor covering is desired to
be used, an interlining of builder's deadening felt shall be first
affixed to the floor, by a paste or other material, soluble in water,
the use of cement or other similar adhesive material being expressly
prohibited. No alterations, additions or improvements shall be made to
the Expansion Premises without the prior written consent of Lessor.
(viii) No bicycles, vehicles, or animals of any kind shall be brought into or
kept in or about the Expansion Premises. No cooking shall be done or
permitted by Lessee on the Expansion Premises, except in conformity to
law and then only in the utility kitchen, if as set forth in Lessee's
layout, which is to be primarily used by Lessee's employees for heating
beverages and light snacks. Lessee shall not cause or permit any
unusual or objectionable odors to be produced or permeate from the
Expansion Premises.
(ix) No space in the Building shall be used for manufacturing, distribution,
or for the storage of merchandise or for the sale of merchandise, goods
or property of any kind at auction.
(x) Lessee shall not make, or permit to be made any unseemly disturbing
noises, or disturb or interfere with occupants of the Building or
neighboring buildings or Expansion Premises or those having business
with them, whether by the use of any musical instrument, radio talking
machine, unmusical noise, whistling, singing, or in any other way.
Lessee shall not throw anything out of the doors, windows or skylights,
or into or down the passageways.
(xi) Neither Lessee, nor any of Lessee's servants, employees, agents,
invitees, visitors, or licensees, shall at any time bring or keep upon
the Expansion Premises any inflammable, combustible or explosive fluid,
or chemical substance, other than reasonable amounts of cleaning fluids
or solvents required in the normal operation of Lessee's business
office.
(xii) No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by Lessee, nor shall any changes be made in
existing locks or the mechanism thereof, without the prior written
approval of Lessor. Lessor shall upon the termination of its tenancy,
restore to Lessor all keys of stores, offices and toilet rooms, either
furnished to, or otherwise procured by Lessee, and in the event of the
loss of any keys so furnished, Lessee shall pay to Lessor the cost
thereof, as additional rent under the Lease.
(xiii) Lessee shall not overload the floor. Lessee shall obtain Lessor's
consent before bringing any safes, freight, furniture, or bulky
articles or matter in the Building or Expansion Premises and Lessor can
specify to Lessee the location for the placement of such articles. All
removals, or the carrying in or out of any safes, freight, furniture,
or bulky articles or matter of any description must take place during
the hours which Lessor or its agent may determine. Lessor reserves the
right to inspect all freight to be brought into the Building and to
exclude from the Building all freight which violates any of these Rules
and Regulations, or which violates the Lease of which these Rules and
Regulations are a part.
(xiv) Lessee shall not occupy or permit any portion of the Expansion Premises
to be occupied, without Lessor's express prior written consent, as an
office for a public stenographer, or for the possession, storage,
manufacture, or sale of liquor, narcotics, tobacco in any form, or as a
xxxxxx or manicure shop, or as a public employment bureau or agency, or
for a public finance (personal loan) business. Lessee shall not engage
or pay any employees on the Expansion Premises, except those actually
working for Lessee on said Expansion Premises, nor advertise for
laborers giving an address of the Building.
(xv) Lessor shall have the right to prohibit any advertising by Lessee
which, in Lessor's absolute discretion, tends to impair the reputation
of the Building or its desirability as a building for offices, and upon
written notice from Lessor, Lessee shall immediately refrain from or
discontinue such advertising.
(xvi) Access to the Building shall be regulated during other than normal
business hours in such manner as Lessor deems reasonably appropriate.
Lessor reserves the right to exclude from the Building between the
hours of 6:00 p.m. and 8:00 a.m. and at all hours on Sundays and
Holidays as set forth in the Lease, and after 1:00 p.m. on Saturdays
all persons who do not have proper card access to the Building for
off-hours entrance, or other proper identification for off-hours entry
into the Building. In the case of invasion, mob, riot, public
excitement or other circumstances rendering such action advisable in
Lessor's opinion, Lessor reserves the right to prevent access to the
Building during the continuance of the same by such action as Lessor
may deem appropriate, including closing and securing doors.
(xvii) The Expansion Premises shall not be used for lodging or sleeping or for
any immoral or illegal purpose.
(xviii) The requirements of Lessee will be attended to only upon written
application at the office of the Building. Building employees shall not
perform any work or do anything outside of their regular duties, unless
under special instructions from Lessor.
(xix) Canvassing, soliciting, and peddling in the Building are prohibited and
Lessee shall cooperate to prevent the same.
(xx) There shall not be used in any space of the Expansion Premises, or in
the public halls of the Building, either by Lessee or by its jobbers or
others, in the delivery or receipt of merchandise, any hand trucks,
except those equipped with rubber tires and side guards.
(xxi) All paneling, rounds or other wood products not considered furniture
shall be of fire retardant materials. Before installation of any such
materials, certification of the materials' fire retardant
characteristics shall be submitted to Lessor or its agents, in a form
and manner satisfactory to Lessor.
(xxii) Lessee shall not install any vending machines in the Building or
Expansion Premises, without Lessor's prior written consent.
(xxiii) Lessor may, from time to time, waive any one or more of these Rules and
Regulations for the benefit of any particular tenant or tenants, but no
such waiver by Lessor shall be construed as a waiver of such Rules and
Regulations in favor of any other tenant or tenants, nor prevent Lessor
from thereafter enforcing any such Rules and Regulations against any or
all of the tenants of the Building.
(xxiv) These Rules and Regulations are a part of the Lease and are in addition
to, and shall not be construed to in any way modify or amend, in whole
or part, to terms, covenants, agreements and conditions of the main
text (including Special Stipulations) of the Lease, which Lease text
shall control in the instances of conflict with the Rules and
Regulations.
(xxv) Lessor reserves the right to make such other and reasonable rules and
regulations as in Lessor's judgment may, from time to time, be needed
for safety, care and cleanliness of the Building, and for the
preservation of good order therein. Such other rules and regulations
shall be effective upon adoption by Lessor and written notification
disseminated by Lessor to tenants in the Building.
(xxvi) No electric current shall be used by the Lessee except that furnish or
approved by the Lessor, nor shall electric or other wires be brought
into the Expansion Premises except upon the written approval of the
Lessor, and any electric current in excess of that considered by Lessor
to be normal for all Lessees in the Building shall be paid for by
Lessee, under such rates as are established by Lessor.
(xxvii) Outside windows in the Expansion Premises shall not be opened except by
Lessor, nor shall such windows be covered or obstructed by Lessee in
any way.
EXHIBIT "C"
SPECIAL STIPULATIONS
PAGE 1 OF 2
LESSOR: PIEDMONT MAPLE L.L.C.
LESSEE: FITECH SYSTEMS, INC.
EXPANSION
PREMISES: 0000 Xxxxxxxx Xxxx, Xxxxx #000, Xxxxxxx, Xxxxxx Xxxxxx,
Xxxxxxx 00000
DATE: January 22, 1998
1. Existing Leases. The existing Lease dated April 27, 1994 by and between
Piedmont/Maple, LLC as assignee for Xxxxxxx Corporation as Lessor and
Fitech Systems, Inc. as Lessee for the premises known as Suite #200
located on the 2nd and 3rd floors of the Building comprising of
approximately 17,407 square feet and the Second Lease dated November 1,
1995 by and between Piedmont/Maple, LLC as Lessor and Fitech Systems as
Lessee for the premises known as Suite #450 located on the fourth floor
of the Building comprising of approximately 970 square feet shall both
continue through the lease term of July 31, 1999. After July 31, 1999
both of the above mentioned leases shall become null and void and be of
no further force and effect.
2. Expansion of the Premises. Lessee and Lessor agree that effective
August 1, 1999 Lessor shall lease to Lessee and Lessee shall lease from
Lessor the premises located on the 2nd, 3rd and 4th floors (as shown on
attached Exhibit "D") of the Building comprising of approximately
18,377 square feet which shall be remeasured in accordance to BOMA
standards using a full floor tenant common area factor of 10.5% and a
multi-tenant common area factor of 14.5% (collectively, the "Premises")
for a term of five (5) years commencing on August 1, 1999 and ending on
July 31, 2004. The rental rate for the Premises shall be as follows:
Period: Rate per RSF:
------- -------------
08/01/99 - 07/31/00 $16.65
08/01/00 - 07/31/01 $17.26
08/01/01 - 07/31/02 $17.89
08/01/02 - 07/31/03 $18.54
08/01/03 - 07/31/04 $19.22
3. Tenant Improvements. Within a reasonable time to begin no later than five (5)
days following the execution of this Lease, Lessor shall paint the Expansion
Premises (Suite 490 approximately 1828 sq. ft) using Building standard paint
finishes. In addition, Lessor shall steam clean the carpets throughout the
Expansion Premises only.
So long as Lessee is not in default of this Lease as of July 31, 1999, Lessor
shall reimburse, within 30 days of completion, directly to Lessee for the cost
to repaint and re-carpet the Premises located on the 2nd ,3rd and 4th floors
(excluding the Expansion Premises in suite 490). Notwithstanding the above,
Lessor shall only reimburse Lessee for the cost of re-carpeting the Premises so
long as the cost of the carpet does not exceed $10.00 per usable square yard
installed. Lessor shall approve in writing Lessee's contractor(s) for said
improvements. Said approval shall not be unreasonably withheld or delayed.
3. Cancellation Right. Tenant shall have the right to cancel this Lease only as
it applies to the Expansion Premises (Suite 490 comprising of approximately 1828
sq. ft) and that certain portion of the Premises known as Suite #450, located on
the fourth floor of the Building comprising of approximately 970 square feet
(see cross hatched section of Exhibit "E"). Said Cancellation Right shall only
be exercisable upon the following terms and conditions:
1) Lessee leases Suite #330 located on the 3rd floor of the
Building comprising of approximately 1603 rentable sq. ft.
(hereinafter referred to as "Relocation Premises" as shown on
attached Exhibit "F") under the then current terms and
conditions of the Expansion Space.
2) Lessee is not then in default of this Lease.
3) Lessee shall provide Lessor with a 90 days advance written
notice of its intent to relocate to the Relocation Premise
(Suite 330 approximately 1603 sq. ft.)
Lessor shall give Lessee written notice of the availability of the Relocation
Premises and Lessee shall have ten (10) days to respond to Lessor in writing of
its intent to accept the Relocation Premises under the then current terms and
conditions of the Expansion Premises. Only if Lessee accepts the Relocation
Premises may Lessee exercise this Cancellation Right. If Lessee exercises its
Cancellation Right in accordance to this paragraph then Lessee shall not have to
pay rent on the Expansion Premises and the released portion of the Premises
(Suite #450 approximately 970 sq. ft.). Should Lessee elect to reject the
Relocation Premises, then Lessee shall continue to lease the Expansion Premises
under the existing terms and conditions.
4. Right of First Offer. Subject to any existing tenants' renewal options,
Lessee shall have a Right of First Offer on any space, which shall become
available on the 3rd floor of the Building. Lessor shall provide Lessee with
written notice of the availability of any such space on the 3rd floor of the
Building and Lessee shall have ten (10) days to accept said space under the then
current terms and conditions of the Expansion Premises. If Tenant elects not to
exercise its Right of First Offer then Lessor shall have the right to lease said
space to any other third party tenant(s) and Lessee shall have no further rights
on said space.
In addition to the above, so long as Lessee has exercised all of its Rights of
First Offer, on the (3rd) floor of the Building, Lessee shall have additional
rights as described above on the (4th) floor of the Building. This Right of
First Offer for any existing space on the 4th floor of the Building shall
exclude Suite #400 comprising of approximately 1160 square feet (as shown on
attached Exhibit "G"). Lessee shall have no rights on Suite #400 of the
Building.
5. Concessions: So long as Lessee is not in default of this Lease, Lessee shall
be entitled to a Rental Concession equal to Seven Thousand and 00/100 - dollars
($7,000.00) per month for the following months: September 2001, October 2001,
September 2002 and October 2002. Said Rental Concessions may be deducted from
Lessee's Base Rental payment for the appropriate month.
6. Signage: Lessee shall have the right to an additional two (2) lines in the
lobby directory for a total of 3 lines.
7. Parking: All parking for Lessee and Lessee's visitors shall be unassigned and
free of charge.
8. Separate Utilities: Lessee shall pay for all costs associated with the
computer room including but not limited to the electrical charge, upkeep and
maintenance and any repairs on the separate HVAC system.
9. Should Lessee exercise its right of first offer on any 3rd floor space,
Landlord agrees to recarpet @ $10/ sq yd. and repaint said if there is a least 3
years remaining on the primary lease.
EXHIBIT "D"
[Diagram of second floor of 0000 Xxxxxxxx Xxxx]
EXHIBIT "D"
[Diagram of third floor of 0000 Xxxxxxxx Xxxx]
EXHIBIT "D"
[Diagram of fourth floor of 0000 Xxxxxxxx Xxxx]
EXHIBIT "E"
[Diagram of fourth floor of 0000 Xxxxxxxx Xxxx]
EXHIBIT "F"
[Diagram of third floor of 0000 Xxxxxxxx Xxxx]
EXHIBIT "G"
[Diagram of fourth floor of 0000 Xxxxxxxx Xxxx]
XXXXX XX XXXXXXX
XXXXXX OF XXXXXX
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT is entered into this 10th day
of February, 1999 by and between PIEDMONT/MAPLE, L.L.C., a Georgia limited
liability company, (hereinafter referred to as "Lessor", and FITECH SYSTEMS,
INC., a Georgia corporation (hereinafter referred to as "Lessee").
W I T N E S S E T H:
WHEREAS, on or about January 22, 1998, Lessor and Lessee entered into
that certain Lease Agreement (hereinafter referred to as the "Lease") pursuant
to which Lessee leased from Lessor certain premises on the fourth (4th) floor of
the building (hereinafter referred to as the "Initial Premises") known as Suite
470, located at 0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx,
(hereinafter referred to as the "Building"), which are more particularly
described in the Lease; and
WHEREAS, Lessor and Lessee desire to amend the Lease to provide for the
expansion of the Initial Premises and certain other matters relating thereto as
more particularly set forth herein;
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee
hereby agree to amend as follows:
1. RIGHT OF FIRST OFFER EXERCISED
Suite #320 & Suite #350
Pursuant to the letter agreement dated October 28, 1998 and accepted by
Lessee on October 30, 1998, Lessee is hereby exercising its Right of
First Offer defined in Special Stipulation #4 of the Lease for Suite
#320 consisting of approximately 744 rentable square feet and Suite
#350 consisting of approximately 771 rentable square feet for a total
of approximately 1,515 rentable square feet located on the third (3rd)
floor of the Building (hereinafter "Expansion Premises") and shown on
attached Exhibit "A". The lease term for this Expansion Premises shall
commence upon the delivery of said Expansion Premises to Lessee
("Commencement Date") and shall be co-terminus with the Lease. A copy
of the above referenced letter Agreement is attached hereto as Exhibit
"B".
2. RENTAL RATE
The base Rental Rate for the Expansion Premises shall be as follows:
Period Monthly Rate
------ ------------
Commencement Date - 07/31/99 $2,060.40
08/01/99 - 07/31/00 $2,136.15
08/01/00 - 07/31/01 $2,214.43
08/01/01 - 07/31/02 $2,295.23
08/01/02 - 07/31/03 $2,378.55
08/01/03 - 07/31/04 $2,465.66
3. TENANT IMPROVEMENTS
Lessor shall, at its sole cost and expense, paint and carpet the Right
of First Offer Premises using Lessee's choice of Building standard
finishes. Notwithstanding, in no event shall Lessor's cost for the
installation of the carpet exceed $10 per square yard. Lessor shall not
be responsible for any other improvements to the Initial Premises
and/or the Expansion Premises, whatsoever.
4. CANCELLATION RIGHT REJECTED
Lessee hereby acknowledges its Rejection of its Cancellation Right as
defined in Special Stipulation #3 of the Lease. Among other things,
this Rejection of Cancellation Right also indicates a Rejection of the
Relocation Premises consisting of approximately 1,603 rentable square
feet located on the third (3rd) floor of the building and commonly
known as Suite #330. Lessee shall have no further Cancellation Rights
and no further rights to the Relocation Premises. A copy of the letter
dated October 28, 1998 notifying Lessee of its Cancellation Right is
attached hereto as Exhibit "C". Lessee forfeited the above mentioned
Cancellation Right by failing to respond in writing to said letter
within the allotted ten (10) day time period.
5. RIGHT OF FIRST OFFER REJECTED
SUITE #330
In addition to Lessee Rejecting its Cancellation Right, Lessee hereby
acknowledges its rejection of its Right of First Offer as defined in
Special Stipulation #4 of the Lease as it applies to Suite #330 located
on the third (3rd) floor of the Building and consisting of
approximately 1,603 rentable square feet. Lessee shall have no further
rights to said space. A copy of the letter dated November 11, 1998
notifying Lessee of the availability of its Right of First Offer is
attached hereto as Exhibit "D". Lessee forfeited the above mentioned
Right of First Offer by failing to respond in writing to said letter
within the allotted ten (10) day time period.
Except as expressly amended hereby, all terms and conditions of the
Lease remain in full force and effect, and are hereby ratified by the parties.
"LESSOR":
Signed, sealed and delivered in PIEDMONT MAPLE, L.L.C., a Georgia
the presence of: limited liability company
/s/ illegible By /s/ illegible
-------------------------------------- ---------------------------------
Witness
Its: Manager
-------------------------------
"LESSEE":
Signed, sealed and delivered in FITECH SYSTEMS, INC., a Georgia
the presence of: corporation
/s/ Xxxxxxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------- --------------------------------
Witness
Its: Executive V.P.
-------------------------------
EXHIBIT "A"
[Diagram of third floor of 0000 Xxxxxxxx Xxxx]
EXHIBIT "B"
[XXXX XXXX PARTNERS LETTERHEAD]
October 28, 1998
Xx. Xxxxxx Xxxxxxx
FITECH Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxx #000
Xxxxxxx, Xxxxxxx 00000
Re: Availability of Right of First Offer space on the third floor of 3098
Piedmont Road, Atlanta, Xxxxxx County, Georgia (the "Building") as per
that certain Lease Agreement (the "Lease") dated January 22, 1998 by
and between Piedmont/Maple, L.L.C. as Lessor and FITECH Systems, Inc.
as Lessee for the Expansion Premises known as Suite #490 within the
Building.
Dear Xxx:
This letter is in response to the above referenced Lease and is to serve as
official notice of the upcoming availability of Right of First Offer space
within the Building, known as suite #320 consisting of approximately 744
rentable square feet and suite #350 consisting of approximately 771 rentable
square feet (the "Right of First Offer Premises" as shown on attached Exhibit
"A"). Lessor is hereby notifying Lessee that due to the fact that the existing
lessee in the Right of First Offer Premises will not be exercising its renewal
option, the Right of First Offer Premises will be available after December 31,
1998.
In accordance with Special Stipulation #4 of the Lease, a copy of which is
attached, Lessee shall have ten (10) days from receipt of this notice in which
to respond to Lessor in writing as to Lessee's intent to lease or reject this
Right of First Offer Premises. In the event Lessee opts to exercise its Right of
First Offer, the following terms shall apply:
Lease Term for Right
Of First Offer Premises: To commence on January 1, 1998 (subject to Delivery of
Right of First Offer as described below) and to be
co-terminus with existing Lease Term.
Delivery of Right of
First Offer Premises: Lessor shall deliver the Right of First Offer Premises
to Lessee upon obtaining possession of said space from
the existing lessee. Lessor shall not be liable to
Lessee in any manner whatsoever for any holdover by the
existing lessee.
Rental Rate: 01/01/99 - 07/31/99 $16.32 per RSF
08/01/99 - 07/31/00 $16.92 per RSF
08/01/00 - 07/31/01 $17.54 per RSF
08/01/01 - 07/31/02 $16.18 per RSF
08/01/02 - 07/31/03 $18.64 per RSF
08/01/03 - 07/31/04 $19.53 per RSF
EXHIBIT "B"
Xx. Xxxxxx Xxxxxxx
October 28, 1998
Page Two
Tenant
Improvements: Lessor shall, at its sole cost and expense, paint and
carpet the Right of First Offer Premises using Lessee's choice
of Building standard finishes. Notwithstanding, in no event
shall Lessor's cost for the installation of the carpet exceed
$10 per square yard. Lessor shall not be responsible for any
other improvements, whatsoever.
Please signify your exercising of the Right of First Offer by executing this
document on behalf of Lessee in the space indicated below and returning this
document to my attention at the address above within ten (10) days. Failure to
exercise the Right of First Offer and / or failure to return written
notification of said exercising of the Right of First Offer within the allotted
ten (10) day period shall cause Lessee to forfeit its Right of First Offer with
respect to the Right of First Offer Premises and to forfeit any future claims to
the Right of First Offer Premises and shall cause Lessor to be relieved of any
and all obligation to Lessee with respect to said Right of First Offer with
respect to this Right of First Offer Premises.
Please do not hesitate to call should you have any questions or concerns. Your
prompt attention to this matter is greatly appreciated.
Agreed and accepted the 30th day of October, 1998.
LESSEE: FITECH SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Its: Executive V.P.
-------------------------------------
Sincerely,
XXXX XXXX PARTNERS
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Associate
Attachments: Exhibit "A" - Right of First Offer space
Copy of Special Stipulation #4 of the Lease
cc: Xx. Xxx Xxxxxxx, DECK Leasing and Management
With attachments
EXHIBIT "C"
[XXXX XXXX PARTNERS LETTERHEAD]
October 28, 1998
Xx. Xxxxxx Xxxxxxx
FITECH Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxx #000
Xxxxxxx, Xxxxxxx 00000
Re: Cancellation Right and Availability of Relocation Premises as per
that certain Lease Agreement (the "Lease") dated January 22, 1998 by
and between Piedmont/Maple, L.L.C. as Lessor and FITECH Systems,
Inc. as Lessee for the Expansion Premises known as 0000 Xxxxxxxx Xxxx
(xxx "Xxxxxxxx"), Xxxxx #000, Xxxxxxx, Xxxxxxx 00000.
Dear Xxx:
This letter is in response to the above referenced Lease and is to serve as
official notice of the upcoming availability of suite #330 in the 0000 Xxxxxxxx
Xxxx Building, attached hereto as Exhibit "A" and consisting of approximately
1603 rentable square feet (the "Relocation Premises"). Lessor is hereby
notifying Lessee that the Relocation Premises will become available after
December 31, 1998.
In accordance with Special Stipulation #3 of the Lease, a copy of which is
attached, Lessee shall have ten (10) days from receipt of this notice in which
to respond to Lessor in writing as to Lessee's intent to lease or reject its
Cancellation Right which would, among other things, indicate Lessee's
acceptance or rejection of the Relocation Premises. In the event Lessee
exercise its Cancellation Right and therefore lease the Relocation Premises,
the Lease stipulates that the following terms shall apply:
Cancellation: Lessee shall cancel the Lease as it applies to suite
#490 (defined in the Lease as the "Expansion Premises")
consisting of approximately 1,828 RSF and as it applies
to that certain portion of the Premises (as defined in
the Lease) known as suite #450 consisting of
approximately 970 RSF, Lessee shall surrender suite
#450 & #490 the later of December 31, 1998 or upon the
availability of the Relocation Premises in the same
condition as at the commencement of the Lease, normal
wear and tear only excepted.
Lease Term for
Relocation Premises: To commence on January 1, 1999 (subject to Delivery of
Relocation Premises as described below) and to be
co-terminus with existing Lease Term.
Delivery of
Relocation Premises: Lessor shall deliver the Relocation Premises to Lessee
upon obtaining possession of said space from the
existing lessees. Lessor shall not be liable to Lessee
in any manner whatsoever for any holdover by the
existing lessee.
EXHIBIT "C"
Xx. Xxxxxx Xxxxxxx
October 28, 1998
Page Two
Rental Rate: 01/01/99 - 07/31/99 $16.32 per RSF
08/01/99 - 07/31/00 $16.92 per RSF
08/01/00 - 07/31/01 $17.54 per RSF
08/01/01 - 07/31/02 $18.18 per RSF
08/01/02 - 07/31/03 $18.84 per RSF
08/01/03 - 07/31/04 $19.53 per RSF
Tenant
Improvements: Lessee shall be responsible for any and all improvements to the
Premises, with Lessor's reasonable approval. Notwithstanding,
so long as Lessee is not in default of this Lease as of
July 31, 1999, Lessor shall reimburse Lessee for the actual
cost of to repaint and re-carpet the Premises (reimbursement
cost of carpet not to exceed $10.00 per usable square yard
installed).
Please signify your exercising of the Cancellation Right acceptance of the
Relocation Premises by executing this document on behalf of Lessee in the space
indicated below and returning this document to my attention at the address above
as soon as possible. Failure to exercise the Cancellation Right and accept the
Relocation Premises and / or failure to return written notification of said
Cancellation and acceptance within the allotted ten (10) day period shall cause
Lessee to forfeit its Cancellation Right and to forfeit any future claims to the
Relocation Premises and shall cause Lessor to be relieved of any and all
obligation to Lessee with respect to said Cancellation Right and Relocation
Premises.
Please do not hesitate to call should you have any questions or comments. Your
prompt attention to this matter is greatly appreciated.
Agreed and accepted the ___ day of October, 1998.
LESSEE: FITECH SYSTEMS, INC.
By:_____________________________________
Its:____________________________________
Sincerely,
XXXX XXXX PARTNERS
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Associate
Attachments: Exhibit "A" - Right of First Refusal space
Copy of Special Stipulation #3 of the Lease
cc: Xx. Xxx Xxxxxxx, DECK Leasing and Management
With attachments
EXHIBIT "D"
[XXXX XXXX PARTNERS LETTERHEAD]
November 10, 1998
Xx. Xxxxxx Xxxxxxx
FITECH Systems, Inc.
0000 Xxxxxxxx Xxxx
Xxxxx #000
Xxxxxxx, Xxxxxxx 00000
Re: Availability of Right of First Offer space on the third floor of 3098
Piedmont Road, Atlanta, Xxxxxx County, Georgia (the "Building") as per
that certain Lease Agreement (the "Lease") dated January 22, 1998 by
and between Piedmont/Maple, L.L.C. as Lessor and FITECH Systems, Inc.
as Lessee for the Expansion Premises known as Suite #490 within the
Building.
Dear Xxx:
This letter is in response to the above referenced Lease and is to serve as
official notice of the upcoming availability of Right of First Offer space
within the Building, known as suite #330 consisting of approximately 1603
rentable square feet (the "Right of First Offer Premises" as shown on attached
Exhibit "A"). Lessor is hereby notifying Lessee that the Right of First Offer
Premises will be available after December 31, 1998.
In accordance with Special Stipulation #4 of the Lease, a copy of which is
attached, Lessee shall have ten (10) days from receipt of this notice in which
to respond to Lessor in writing as to Lessee's intent to lease or reject this
Right of First Offer Premises. In the event Lessee opts to exercise its Right of
First Offer, the following terms shall apply:
Lease Term for Right Of
First Offer Premises: To commence on January 1, 1999 (subject to Delivery
of Right of First Offer as described below) and to be
co-terminus with existing Lease Term.
Delivery of Right of
First Offer Premises: Lessor shall deliver the Right of First Offer
Premises to Lessee upon obtaining possession of said
space from the existing lessee. Lessor shall not be
liable to Lessee in any manner whatsoever for any
holdover by the existing lessee.
Rental Rate: 01/01/99-07/31/99 $16.32 per RSF
08/01/99-07/31/00 $16.92 per RSF
08/01/00-07/31/01 $17.54 per RSF
08/01/01-07/31/02 $18.18 per RSF
08/01/02-07/31/03 $18.84 per RSF
08/01/03-07/31/04 $19.53 per RSF
EXHIBIT "D"
Xx. Xxxxxx Xxxxxxx
November 10, 1998
Page Two
Tenant
Improvements: Lessee shall, at its sole cost and expense, paint and
carpet the Right of First Offer Premises using
Lessee's choice of Building standard finishes.
Notwithstanding, in no event shall Lessor's cost for
the installation of the carpet exceed $10 per square
yard. Lessor shall not be responsible for any other
improvements, whatsoever.
Please signify your exercising of the Right of First Offer by executing this
document on behalf of Lessee in the space indicated below and returning this
document to my attention at the address above within ten (10) days. Failure to
exercise the Right of First Offer and/or failure to return written notification
of said exercising of the Right of First Offer within the allotted ten (10) day
period shall cause Lessee to forfeit its Right of First Offer with respect to
the Right of First Offer Premises and to forfeit any future claims to the Right
of First Offer Premises and shall cause Lessor to be relieved of any and all
obligation to Lessee with respect to said Right of First Offer with respect to
this Right of First Offer Premises.
Please do not hesitate to call should you have any questions or comments. Your
prompt attention to this matter is greatly appreciated.
Agreed and accepted the __ day of November, 1998.
LESSEE: FITECH SYSTEMS, INC.
By:____________________________________________
Its:___________________________________________
Sincerely,
XXXX XXXX PARTNERS
/s/ Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxxx
Associate
Attachments: Exhibit "A" - Right of First Offer space
Copy of Special Stipulation #4 of the Lease
cc: Xx. Xxx Xxxxxxx, DECK Leasing and Management
With attachments
STATE OF GEORGIA
COUNTY OF XXXXXX
SECOND AMENDMENT TO LEASE AGREEMENT
THIS SECOND AMENDMENT TO LEASE AGREEMENT is entered into this 3rd day
of September, 1999 by and between PIEDMONT/MAPLE, L.L.C., a Georgia limited
liability company, (hereinafter referred to as "Lessor"), and FITECH SYSTEMS,
L.P., a Georgia corporation (hereinafter referred to as "Lessee").
W I T N E S S E T H:
WHEREAS, Lessor and Lessee entered into that certain Lease Agreement
dated January 22, 1998 and subsequent First Amendment to Lease Agreement dated
February 10, 1999 (hereinafter collectively referred to as the "Lease") pursuant
to which Lessee leased from Lessor certain premises on the second (2nd), third
(3rd) and fourth (4th) floors of the building (hereinafter referred to as the
"Initial Premises" and shown on attached Exhibit "A") known as Suite #200,
located at 0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx, 00000
(hereinafter referred to as the "Building"), which are more particularly
described in the Lease; and
WHEREAS, Lessor and Lessee desire to amend the Lease to provide for the
modification of the Premises and certain other matters relating thereto as more
particularly set forth herein;
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Lessor and Lessee
hereby agree to amend as follows:
1. TERMINATION OF LEASE RIGHTS ON SUITE #470
Lessor and Lessee hereby agreed that effective September 1, 1999 (the
"Effective Date") Lessee shall surrender all leasehold rights for the
approximately 1,828 rentable square feet known as Suite #470 of the
Initial Premises (shown on attached Exhibit "B"). In addition, as of
the Effective Date, Lessee shall be relieved of all obligations
associated with the leasing of said Suite #470 except for those
obligations, which by their nature, survive this termination. Lessee
shall deliver Suite #470 to Lessor along with all keys to said suite in
the same condition in which it was presented, in a "broom clean"
condition, normal wear and tear excepted.
2. EXPANSION OF PREMISES
So long as Lessee is not in default of its lease, as of the Effective
Date, Lessor leases to Lessee and Lessee leases from Lessor Suite 420
(shown on the attached Exhibit "C") for a total expansion area of
approximately 1,744 RSF ("Expansion Premises"). Said Expansion Premises
shall be leased by Lessee under the same terms and conditions as those
set forth in the Lease.
3. MODIFIED PREMISES
Lessor and Lessee hereby agree, that as of the Effective Date in
accordance with the above and in accordance with Special Stipulation #2
of the Lease, the total area leased by Lessee (which includes the
Initial Premises, minus Suite #470, plus the Expansion Premises)
consists of a total of 23,346 Rentable Square Feet ("Modified
Premises") as shown on the attached Exhibit "D".
4. RENTAL RATE
The rental rate for the Modified Premises shall be in accordance with
the rates stated in Special Stipulation #2 of the Lease. Therefore, as
of the Effective Date the rental rate for the entire Modified Premises
shall be as follows:
Period Rate Per RSF Monthly Rate
------ ------------ ------------
09/01/99-07/31/00 $16.65 $32,392.58
08/01/00-07/31/01 $17.26 $33,579.33
08/01/01-07/31/02 $17.89 $34,805.00
08/01/02-07/31/03 $18.54 $36,069.57
08/01/03-07/31/04 $19.22 $37,392.51
"LESSOR"
Signed, sealed and delivered in PIEDMONT MAPLE, L.L.C., a Georgia
the presence of: limited liability company
/s/ illegible By: /s/ illegible
------------------------------- -------------------------------
Witness illegible
Its: /s/ illegible
------------------------------
"LESSEE"
Signed, sealed and delivered FITECH SYSTEMS, INC., a Georgia
the presence of: corporation
/s/ illegible By: /s/ Xxxxxxx X. Xxxxx
------------------------------- -------------------------------
Witness
Its: Executive VP
------------------------------
EXHIBIT "A"
INITIAL PREMISES
PAGE 1 OF 3
[Diagram of second floor of 0000 Xxxxxxxx Xxxx]
EXHIBIT "A"
INITIAL PREMISES
PAGE 2 OF 3
[Diagram of third floor of 0000 Xxxxxxxx Xxxx]
EXHIBIT "A"
INITIAL PREMISES
PAGE 3 OF 3
[Diagram of fourth floor of 0000 Xxxxxxxx Xxxx]
EXHIBIT "B"
SUITE #470 TERMINATION OF LEASEHOLD RIGHTS
PAGE 1 OF 1
[Diagram of fourth floor of 0000 Xxxxxxxx Xxxx]
EXHIBIT "C"
EXPANSION PREMISES
PAGE 1 OF 1
[Diagram of fourth floor of 0000 Xxxxxxxx Xxxx]
EXHIBIT "D"
MODIFIED PREMISES
PAGE 1 OF 3
[Diagram of second floor of 0000 Xxxxxxxx Xxxx]
EXHIBIT "D"
MODIFIED PREMISES
PAGE 2 OF 3
[Diagram of third floor of 0000 Xxxxxxxx Xxxx]
EXHIBIT "D"
MODIFIED PREMISES
PAGE 3 OF 3
[Diagram of fourth floor of 0000 Xxxxxxxx Xxxx]
ASSIGNMENT OF LEASE
THIS ASSIGNMENT OF LEASE is made as of the 31ST day of AUGUST, 2000, by and
between FITECH SYSTEMS, L.P., A GEORGIA LIMITED PARTNERSHIP (hereinafter
"Assignor") and LIBERTY FITECH SYSTEMS, INC. (F/K/A FS ACQUISITION, INC.)
("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor is the Tenant under the terms, covenants and
agreements of that certain lease between PIEDMONT/MAPLE, L.L.C., as Landlord,
and Assignor, as Tenant dated the 22ND day of JANUARY, 1998, as amended by that
First Amendment to Lease Agreement dated 10 February 1999 and by that Second
Amendment to Lease Agreement dated 3 September 1999 (collectively hereinafter
the "Lease"), a copy of which is attached hereto as Exhibit "A" relating to
certain Premises on the second, third, and fourth floor generally known as Suite
#200 totaling approximately 23,346 Rentable Square Feet located at 0000 Xxxxxxxx
Xxxx, Xxxxxxx, XX, 00000 (the "Premises"); and
WHEREAS, Assignor desires to assign all of its right, title and
interest in and to the Lease to Assignee commencing on the date of this
assignment.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) in hand paid by Assignee to Assignor, and other good and valuable
considerations, the receipt and sufficiency of which are hereby acknowledged,
Assignor hereby assigns, transfers and conveys all of its right, title and
interest in and to the Lease to Assignee.
Assignor hereby warrants to Assignee that (i) it is the sole owner of
the Tenant's interest under the Lease free from any and all claims and
encumbrances of any nature, (ii) as of the date hereof, and upon receipt of the
payment to Landlord of $46,661.61 referenced below the "Past Due Rent Amount"),
all rental payments are current and Assignor is not otherwise in default under
any of its obligations under the Lease, (iii) Landlord has not defaulted under
any of its obligations under the terms of the Lease, (iv) the Lease is valid and
enforceable and has not been supplemented, amended, or modified or assigned
except as set forth herein, (v) Landlord has no claim against Assignor for
damages of any kind arising out of the Lease or otherwise, (vi) Assignor has not
received notice that the operation of the business by Assignor in the Premises,
or the improvements installed by Assignor in the Premises, violate any
applicable Federal, State or local ordinances, codes, statutes, rules or
regulations, and (vii) Exhibit "A" is a true, complete and accurate copy of the
entire Lease and there are no modifications or amendments to the Lease which are
not set forth on Exhibit "A". Assignor hereby indemnifies Assignee from any
claim, loss, cost or expense (including attorneys' fees) which Assignee may
suffer as the result of Assignor's status as tenant under the Lease or a breach
by Assignor of its duties under the Lease, occurring up to and including the
date hereof.
Assignee, by its acceptance hereof, hereby assumes the obligations of
Assignor under the Lease arising from and after the date hereof, except those
obligations arising or related to the period of time prior to the date of this
Assignment and agrees that it shall perform all of Assignor's duties under the
terms, covenants and agreements of the Lease arising from and after
the date hereof. To Assignee's knowledge, without inquiry or investigation other
than examination of the Premises and inquiry to Assignor, Landlord is not in
default under the Lease.
Assignor and Assignee represents and warrants to Landlord that each has
the right and authority to execute and deliver this Assignment and that the Past
Due Rent Amount will be paid to Landlord within 5 business days after the
closing of the transaction between Assignor and Assignee.
This Assignment shall inure to the benefit of and be binding upon the
respective heirs, personal representatives, successors and assigns of the
parties hereto.
This Assignment shall be construed and enforced in accordance with the
laws of the State of GEORGIA.
Notices shall be deemed effectively given when delivered as per the Lease
to the following if different from the Lease;
Assignor: FITECH SYSTEMS, L.P
0000 XXXXXXXX XXXX XX, XXXXX 000
XXXXXXX, XX 00000
TELEFAX NO.: 000-000-0000
Assignee: LIBERTY FITECH SYSTEMS, INC.
LIBERTY DEVELOPMENT CENTER
0000 XXXXXXX XXXXXX
XXXXXX XXXX, XX 00000
TELEFAX NO.: 000-000-0000
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment of
Lease under seal as of the day and year first above written.
LIBERTY FITECH SYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------------------------
Xxxx X. Xxxxxxxxx, Chief Executive Officer
FITECH SYSTEMS, L.P.
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Xxxxxxx X. Xxxxx, Chief Executive Officer
of FiTECH, Inc., a Georgia Corporation, and
General Partner of FiTECH Systems, L.P.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
CONSENT OF LANDLORD
Landlord hereby consents to the foregoing assignment of the Lease by
Assignor to Assignee.
Landlord represents, warrants and confirms that to its knowledge as of the
date hereof, and upon receipt of the payment to Landlord of $46,661.61 ("Past
Due Rent Amount"), all rental payments are current and Assignor is not otherwise
in default under any of its obligations under the Lease. Landlord's Consent to
this assignment will be effective upon Landlord's receipt of the entire Past Due
Rent Amount.
LANDLORD:
PIEDMONT/MAPLE, LLC
a Georgia limited liability company
By: Xxxxxxx Development Partners, LP
a Georgia limited partnership, as Member
By: Xxxxxxx Realty Group, Inc.
-------------------------------------------
a Georgia corporation, its sole General
Partner
By: /s/ illegible
-------------------------------------------
Title: President
----------------------------------------
THIRD AMENDMENT TO LEASE AGREEMENT
THIS THIRD AMENDMENT TO LEASE AGREEMENT is entered into this 29th day of a
May, 2001 by and between PIEDMONT / MAPLE, L.L.C., a Georgia limited liability
company, (hereinafter "Lessor"), and LIBERTY FITECH SYSTEMS, INC. (hereinafter
"Lessee").
WITNESSETH
WHEREAS, Lessor and Lessee entered into that certain Lease Agreement dated
January 22, 1998, subsequent 1st Amendment dated February 10, 1999, subsequent
2nd Amendment dated September 3, 1999 and Assignment of Lease dated August 31,
2000, totaling approximately 23,346 Rentable Square Feet (RSF) collectively
known as "Original Lease", Lessor leased certain premises to Lessee known as
0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx 00000 ("Original
Premises"); and
WHEREAS, Lessor and Lessee desire to amend the Original Lease to provide
for the expansion of the Leased Premises and certain other matters relating
thereto as more particularly set forth herein;
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions set forth herein, and other good and valuable consideration, the
receipt and sufficiency if which are hereby acknowledged, Lessor and Lessee
hereby agree to amend as follows:
1. Lessee is hereby expanding its Original Premises by leasing an
additional approximately 130 RSF known as a portion of the third
floor hallway, located on the 3rd Floor of the Building ("Expansion
Premises") shown on attached Exhibit "A". Therefore the total
"Modified Premises" (inclusive of the Original Premises and
Expansion Premises) shall be a total of approximately 23,476 RSF.
This Third Amendment shall commence on May 15, 2001.
2. The total monthly rental for the Original Premises and Expansion
Premises shall be adjusted as follows:
PERIOD TOTAL MONTHLY RENTAL
------ --------------------
5/1/01 - 7/31/01 $33,579.33
8/1/01 - 7/31/02 $34,805.00
8/1/02 - 7/31/03 $36,069.57
8/1/03 - 7/31/04 $37,392.51
3. Lessee agrees to accept the Expansion Premises and Original Premises
in an "as-is" condition. Lessor shall not be responsible for any
improvements to the Original Premises or Expansion Premises,
whatsoever.
4. Prior to commencement of any improvements, Lessee shall provide
Lessor with construction plans of the Expansion Premises and/or
Original Premises. It is the understanding and agreement of the
parties that Lessee shall be responsible for providing Lessor with
as-built floor plans for the remodeled Premises upon completion of
all improvements.
5. Lessor shall give Lessee a one time First Right of Refusal on Suite
330 consisting of approximately 1,603 RSF. This one time First Right
of Refusal shall expire on August 31, 2001. If exercised, the Lessee
shall take possession of Suite 330 on February 1, 2002 in an "As-Is"
condition. The rental rate for Suite 330 shall be added to Lessee's
Original Lease rental schedule and shall be calculated at the same
rate per RSF as the Original Lease rate per RSF and shall have the
same rental increase dates as the Original Lease. Lessor and Lessee
shall add suite 330 to the Original Lease by an amendment.
6. KRG Brokerage, LLC is exclusively representing Lessor in the
transaction. KRG Brokerage, LLC does not represent Lessee in this
transaction. Lessee agrees to indemnify Lessor from any outside
broker claiming to represent Lessee in this transaction.
7. With the exception of the above, all other terms and conditions of
the Original Lease remain in effect.
SIGNATURES ON NEXT PAGE
In Witness Whereof, the parties have hereunto set their hands and affixed their
seals the day and year first above written,
"LESSOR":
------
PIEDMONT/MAPLE, L.L.C.
a Georgia limited liability company
By: Xxxxxxx Development Partners, L.P.,
a Georgia limited partnership, as Member
By: KRG-General Partner, Inc., a
Delaware corporation, its general
partner
Signed, sealed and delivered
In the presence of: By: /s/ illegible
--------------
/s/ illegible Title: VP
---------------------------- -----------
Witness
Date: 6.4.01
-------
"LESSEE":
------
Liberty FiTech Systems, Inc.
a Georgia Corporation
Signed, sealed and delivered
in the presence of: By: /s/ Xxxxxxx X. Xxxxx
---------------------
Print Name: Xxxxxxx X. Xxxxx
----------------------
/s/ Xxxxxxxxx X. Xxxxxx Title: President
---------------------------- -----------
Witness
Date: 5/25/01
--------
EXHIBIT A
[Diagram of third floor of 3098 Piedmont Road]
FOURTH AMENDMENT TO LEASE AGREEMENT
THIS FOURTH AMENDMENT TO LEASE AGREEMENT ("FOURTH AMENDMENT") is entered
into this 21 day of January, 2002 by and between PIEDMONT/MAPLE, L.L.C., a
Georgia limited liability company, (hereinafter "Lessor"), and LIBERTY FITECH
SYSTEMS, INC., A MINNESOTA CORPORATION (hereinafter "Lessee").
WITNESSETH
WHEREAS, Lessor and Lessee entered into that certain Lease Agreement dated
January 22, 1998, subsequent 1st Amendment dated February 10, 1999, subsequent
2nd Amendment dated September 3, 1999 subsequent Assignment of Lease dated
August 31, 2000 and Third Amendment to Lease Agreement dated the 29th day of
May, 2001 totaling approximately 23,476 Rentable Square Feet (RSF) collectively
known as "Original Lease", Lessor leased certain premises to Lessee known as
0000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxx Xxxxxx, Xxxxxxx 00000 ("Original
Premises"); and
WHEREAS, Lessee has notified Lessor of its exercise of its First Right of
Refusal as defined in Paragraph 5 of the Third Amendment to this Lease
(permitting Lessee to lease and occupy additional space) and Lessor and Lessee
have agreed to delay the commencement of the Lesser's expansion into the
additional space and certain other matters relating thereto and as set forth
herein;
WHEREAS, Lessor and Lessee desire to amend the Lease to provide for the
expansion of the Leased Premises and certain other matters relating thereto as
more particularly set forth herein;
NOW, THEREFORE, for and in consideration of the mutual covenants and
conditions set forth herein, and other good and valuable consideration, the
receipt and sufficiency if which are hereby acknowledged, Lessor and Lessee
hereby agree to amend as follows:
1. Lessee hereby agrees to delay the commencement of its previously
exercised one time First Right of Refusal on Suite 330, consisting
of approximately 1,596 RSF, from February 1, 2002 to February 1,
2003.
2. CONTINGENCY: The delay of commencement as described herein is
subject to and contingent upon the execution and delivery of an
amendment of lease by Housing Resource Center, Inc., (hereinafter
referred to as "HRCI") extending its lease from January 31, 2002 to
January 31, 2003.
Upon the Lessor's delivery of the Fourth Expansion Premises (as
defined below), Lessee will expand its Original Premises by leasing
an additional approximate 1,596 RSF located on the 3rd Floor of the
Building and known as Suite 330 ("Fourth Amendment Expansion
Premises") shown on attached Exhibit "A" and thereafter the total
"Modified Premises" (inclusive of the Original Premises and Fourth
Amendment Expansion Premises) shall be a total of approximately
25,079 RSF. This Amendment will become effective as an amendment to
the Lease as of, on and after the date stated above; however, the
Lease (as amended by this
Fourth Amendment) will apply to the Fourth Amendment Expansion
Premises as of, on, and after the date of delivery of the Expansion
Premises to Lessee, and shall continue in effect until otherwise
amended by the parties in writing or until expiration or sooner
termination of the Lease. The Fourth Amendment Expansion Premises
will be deemed delivered to Lessee upon Lessor's delivery to Lessee
of a written notice stating that the Expansion Premises are ready
for Lessee's use and occupancy. The parties acknowledge that the
Fourth Amendment Expansion Premises are currently under lease to
HRCI and that HRCI must return the Fourth Amendment Expansion
Premises to Lessor's possession and control prior to the Lessor's
delivery to Lessee. Lessor will use commercially reasonable efforts
to recover possession from HRCI so as to deliver the Fourth
Amendment Expansion Premises to Lessee on or before 1 February 2003;
however, in no event shall Lessee be obligated to pay rent on the
Fourth Amendment Expansion Premises until Lessor's delivery of such
premises.
3. The total monthly rental for the Original Premises and Expansion
Premises shall be adjusted as follows commencing February 1, 2003:
PERIOD TOTAL MONTHLY RENTAL
------ --------------------
02/01/03 - 07/31/03 $38,532.49
08/01/03 - 7/31/04 $39,945.76
4. On or about the time of execution of this Fourth Amendment, Lessor
and Lessee shall inspect the Fourth Amendment Expansion Premises to
determine the condition thereof. Lessee agrees to accept the Fourth
Amendment Expansion Premises in the same condition, reasonable wear
and tear excepted, as it is in as of the date of execution of this
Fourth Amendment (hereinafter known as the "As Is Condition").
During the period commencing after the inspection and ending upon
Lessor's deliver to Lessee, Lessor will not permit HRCI to make
changes within the Expansion Premises without the written consent of
the Lessee. In the event that upon vacating the Fourth Amendment
Expansion Premises HRCI causes damage and fails to restore the
Fourth Amendment Expansion Premises to the As Is Condition
(reasonable wear and tear excepted), the Lessor will at no expense
to Lessee reasonably restore the Fourth Amendment Expansion Premises
to the As Is Condition (reasonable wear and tear excepted) and rent
shall be abated on the portion of the Fourth Amendment Expansion
Premises being restored until restoration has been completed. With
exception of any required restoration, Lessor shall not be
responsible for any improvements to the Original Premises or Fourth
Amendment Expansion Premises.
5. Prior to commencement of any improvements, Lessee shall provide
Lessor with construction plans of the Expansion Premises and to the
degree affected, Original Premises (hereinafter collectively known
as the "Improved Premises"). Within thirty (30) days of completed
such improvements, Lessee shall be responsible for providing Lessor
with as-built plans for the Improved Premises upon completion of all
improvements.
6. KRG Brokerage, LLC is exclusively representing Lessor in this
transaction. KRG Brokerage, LLC does not represent Lessee in this
transaction. Lessee agrees to indemnify Lessor from any outside
broker claiming to represent Lessee in this transaction.
7. With the exception of the above, all other terms and conditions of
the Lease remain in effect.
8. Lessor and Lessee agree that Lessee has no further First Right of
Refusal to exercise under the Lease.
9. The recitals set forth above are incorporated by reference into this
Fourth Amendment. All capitalized terms used but not defined in this
Fourth Amendment shall have the same meaning as in the Lease.
IN WITNESS WHEREOF, the parties have hereunto set their hands and affixed
their seals the day and year first above written.
"LESSOR":
PIEDMONT/MAPLE, L.L.C.
a Georgia limited liability company
By: Xxxxxxx Development Partners, L.P.,
a Georgia limited partnership, as Member
By: KRG-General Partner, Inc.,
a Delaware corporation,
its general partner
Signed, sealed and delivered
In the presence of: By: /s/ illegible
--------------
Title: VP
---------------------------- -----------
Witness
Date: 1-30-02
------------
"LESSEE":
Liberty FiTech Systems, Inc., a Minnesota
corporation
Signed, sealed and delivered
in the presence of: By: /s/ Xxxxxxx X. Xxxxx
---------------------
Print Name: Xxxxxxx X. Xxxxx
/s/ Xxxxxxxxx X. Xxxxxx Title: President
---------------------------- ----------
Witness
Date: 1/21/02
--------
EXHIBIT "A"
Page 2 of 2
[Diagram of third floor of 0000 Xxxxxxxx Xxxx]
ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION OF LEASE AGREEMENT (this "AGREEMENT") is
made as of this 30th day of June, 2003, by and between LIBERTY FITECH SYSTEMS,
INC., a Minnesota corporation ("ASSIGNOR"), OPEN SOLUTIONS FITECH, INC., a
Delaware corporation ("Assignee") and PIEDMONT/MAPLE, L.L.C. ("LANDLORD").
RECITALS OF FACT
A. Assignor is the present "Tenant" under that certain Lease Agreement
dated January 22, 1998 between Assignor (as successor to FiTech Systems, Inc.)
and Piedmont/Maple, L.L.C., as amended by First Amendment to Lease Agreement
dated February 10, 1999, by Second Amendment to Lease Agreement dated September
3, 1999, by Third Amendment to Lease Agreement dated May 29, 2001, and by Fourth
Amendment of Lease dated January 21, 2002 (the "LEASE").
B. The Lease affects that certain approximately 25,079 rentable square
feet of space commonly known as Xxxxx 000, 0000 Xxxxxxxx Xxxx, Xxxxxxx, Xxxxxxx
(the "PREMISES"), which Premises comprise a portion of the real property
described therein (the "PROPERTY").
C. Assignor desires to assign to Assignee and Assignee desires to accept
from Assignor the assignment of the leasehold interest and all other rights
created under the Lease, effective as of the date of this Agreement (hereinafter
the "CLOSING DATE"), subject to the terms and conditions set forth herein.
D. Landlord wishes to consent to the assignment of the Lease from Assignor
to Assignee on the terms and conditions of this Agreement.
E. The parties have agreed to execute this Assignment and Assumption of
Lease Agreement in connection with the transfer of certain assets of Assignor to
Assignee as more fully described in the Asset Purchase Agreement dated June 30,
2003, by and between Assignor and Assignee (the "PURCHASE AGREEMENT").
AGREEMENT
IN CONSIDERATION of the premises and covenants set forth in the Purchase
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which is acknowledged by all parties, the parties hereby agree as
follows:
1. Assignment. Effective as of the Closing Date, Assignor hereby assigns,
transfers, sets over and conveys to Assignee, its successor and assigns, all of
Assignor's right, title and interest in and to (a) the Lease; (b) the Premises,
(c) all security deposits and prepaid rentals with respect to the Lease (d) any
other portion of the Property in which Assignor has any right or interest under
the Lease or any associated or collateral agreements; and (e) all incidental and
appurtenant rights which Assignor may have or possess in connection with the
Lease, the Premises or the Property. Assignor represents that Assignor has
delivered true, correct and complete copies of the Lease to Assignee.
2. Assumption. Effective as of the Closing Date, Assignee hereby assumes
each and every obligation of "Tenant" arising and to be performed after the
Closing Date under the Lease.
3. Representations and Warranties. The covenants, representations,
warranties and indemnities of Assignor and Assignee in the Purchase Agreement
shall not be limited by anything contained in this Agreement, and in the event
of any conflict between the provision of this Agreement and the representations
and warranties of Assignor and/or Assignee in the Purchase Agreement, the
representations and warranties of the Assignor and/or Assignee in the Purchase
Agreement shall prevail. Assignor acknowledges that he shall remain liable under
the Lease for all the obligations of tenant to be performed,
4. Estoppel and Release. Assignor and Assignee acknowledge and agree that
(a) Landlord is not in default under any of the terms of the Lease; (b) all
obligations and conditions under the Lease to be performed to date by Landlord
have been satisfied; (c) no event has occurred which, with the passage of time
or the giving of notice or both, would constitute an event of default by
Landlord under the Lease; and (d) Assignor has no current defenses or claims
against Landlord or rights of offset against any rents payable to Landlord under
the Lease or otherwise. Assignee and Assignor, in consideration of the execution
of this Agreement by Landlord, hereby release and discharge Landlord, its
employees, its agents, and its successors and assigns from any and all claims,
suits, actions or causes of action in law or in equity arising directly or
indirectly out of or pursuant to the Lease or Tenant's use and occupancy of the
Premises arising prior to the Closing Date.
5. Acceptance of Premises. Assignee accepts the Premises (including all
systems serving the Premises such as HVAC, electrical and plumbing) in "AS-IS"
condition with all faults and agrees that Assignor, and not Landlord, is
responsible for the current condition thereof. Landlord and Assignee acknowledge
and agree that Assignee shall immediately occupy the Premises as provided
herein. Assignee shall solely be responsible for any alterations to the Premises
(to include repairs, alterations, upgrades or the like to the systems serving
the Premises) that Assignee deems necessary for the conduct of its business
therein and, subject to Landlord's prior approval thereof, Assignee shall
perform all Work in the Premises in accordance with the Lease and any
governmental laws, rules, regulations or ordinances, including, but not limited
to, the Americans with Disabilities Act. Assignor and Assignee agree that all
fixtures (expressly including but not limited to lighting, HVAC and plumbing),
other than trade fixtures, are the property of Landlord and shall remain in the
Premises upon the expiration or sooner termination of the Lease. Assignor and
Assignee warrant that as of the date hereof, Assignee owns all equipment, trade
fixtures and leasehold improvements on the Premises, free and clear of any
liens, claims or other encumbrances.
6. Further Action. Assignor hereby covenants that Assignor will, at any
time and from time to time, upon written request therefor, execute and deliver
to Assignee or Assignee's successors and assigns, any new or confirmatory
instruments which Assignee or Assignee's successors and assigns may reasonably
request in order to fully assign and transfer to and vest in Assignee or
Assignee's successors and assigns and to protect Assignee or Assignee's
successors' and assigns' right, title and interest in and to each of the Leases
assigned hereby.
7. Landlord's Consent. Landlord hereby consents to the terms of this
Agreement without waiver of the restriction concerning further assignment.
8. Guarantors. In consideration of the Landlord's entry into this
Agreement, Liberty Enterprises, Inc., a Minnesota corporation, and Open
Solutions, Inc. (jointly and severally "Guarantors") shall each guaranty payment
and performance under the terms of the Lease by executing a guaranty
contemporaneously with this Agreement in the form attached hereto as Exhibit A.
Each Guarantors hereby acknowledges and consents to all of the terms, conditions
and obligations of Tenant with respect to the Lease and this Agreement.
9. Miscellaneous. This Agreement shall be governed by the laws of the
state in which the property is located. This Agreement may not be amended except
by a document signed by all parties hereto.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original and all of which when taken together shall constitute but one and the
same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement an of the day
and year first above written.
ASSIGNOR: LIBERTY FITECH SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: CEO
ASSIGNEE: OPEN SOLUTIONS FITECH, INC.
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: VP + CFO
LANDLORD: PIEDMONT/MAPLE, L.L.C.,
a Georgia limited liability company
By: Xxxxxxx Development Partners, L.P.,
a Georgia limited partnership, as Member
By: KRG-General Partner, Inc.,
a Delaware corporation,
its general partner
By: /s/ Xxxxx Xxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxx
Title: President
GUARANTOR: LIBERTY ENTERPRISES, INC.,
a Minnesota corporation
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: CEO
GUARANTOR: OPEN SOLUTIONS INC., a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: VP + CFO
