EXHIBIT 10.40
ASSIGNMENT AND ASSUMPTION OF LEASE
AND
CONSENT OF LANDLORD
THIS ASSIGNMENT AND ASSUMPTION OF LEASE ("Assignment") is made and entered
into as of November 5, 1998, by and among MAPICS, INC., A GEORGIA CORPORATION
("Assignor"), GENERAL ELECTRIC CAPITAL CORPORATION, A NEW YORK CORPORATION
("Assignee") and EOP-LAKESIDE OFFICE, L.L.C., A DELAWARE LIMITED LIABILITY
COMPANY ("Landlord").
WHEREAS, Beacon Properties, L.P. ("Beacon"), as landlord, and MAPICS, Inc.,
a Massachusetts corporation ("MAPICS"), as tenant, entered into that certain
lease dated December 19, 1997 (the "Lease"), for the rental of certain premises
described as Suites 400 and 475 in the 0000-X Xxxxxxxxx Xxxxx Xxxxxxxx xx
Xxxxxxx, Xxxxxxx, containing 7,323 square feet of rentable area (the
"Premises"); and
WHEREAS, Landlord is the current holder of all of Beacon's interest under
the Lease; and
WHEREAS, Assignor is the current holder of all of MAPICS' interest under
the Lease; and
WHEREAS, Assignor desires to assign all of Assignor's rights in, to and
under the Lease to Assignee, and Assignee agrees to assume all of Assignor's
rights, duties and obligations thereunder, and Landlord consents to said
assignment and assumption upon the terms and conditions contained herein.
NOW, THEREFORE, in consideration of Ten and No/100 Dollars ($10.00) in hand
paid to Assignor by Assignee, at and with the execution and delivery of this
Assignment, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor, Assignee and Landlord
covenant and agree as follows:
1. Assignment and Assumption. Effective as of March 1, 1999 (the
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"Effective Date"), Assignor hereby absolutely and irrevocably assigns
to Assignee, its successors and assigns, all right, title, and
interest of Assignor in, to and under the Lease. Effective as of the
Effective Date, Assignee hereby expressly assumes all rights, duties
and obligations of Assignee under the Lease. Assignor, Assignee and
Landlord hereby expressly acknowledge, however, that Assignee shall
have no liability for satisfaction of any tenant obligations under the
Lease prior to the Effective Date, it being expressly agreed that
Landlord shall seek to enforce said obligations, if necessary, only
against Assignor.
2. Adjustments. If any payments of rent, additional rent or other
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changes due under the Lease relate to a period which includes time
both before and after the Effective Date of this Assignment, any such
payment shall be prorated between Assignor and Assignee according to
the fractions of the total number of days in such period occurring,
respectively, before and after said Effective Date. Assignor shall
pay the prorated portion of any such payment relating to the
fractional period before said Effective Date, and Assignee shall pay
the prorated portion of any such payment relating to the fractional
period on or after said Effective Date.
3. Indemnification. Assignor does hereby indemnify and hold Assignee
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harmless from and against any and all claims, causes, demands, losses,
liabilities, costs, damages, expenses and fees, including, without
limitation, court costs and attorneys' fees, incurred, related to or
arising in any manner from or out of the performance or failure of
performance by Assignor of any of its duties as tenant under the Lease
prior to the Effective Date. Assignee does hereby indemnify and hold
Assignor harmless from and against any and all claims, causes,
demands, losses, liabilities, costs, damages, expenses and fees
including, without limitation, court costs and attorneys' fees,
incurred, related to or arising in any manner from and out of the
performance or failure of performance by Assignee of any of its duties
as tenant under the Lease from and after the Effective Date.
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4. Consent and Release.
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a. In reliance upon the agreements and representations contained in
this Assignment, Landlord hereby consents to this Assignment.
This consent shall not constitute a waiver of the obligation of
the tenant under the Lease to obtain the Landlord's consent to
any subsequent assignment, sublease or other transfer under the
Lease, nor shall it constitute a waiver of any existing defaults
under the Lease. Landlord waives any further applicable notice
of assignment or notice of intent to assign which may be required
of Assignor under the Lease in connection with this Assignment
described herein.
b. Effective as of the Effective Date, Landlord hereby releases and
forever discharges Assignor of and from any further obligation or
liability under the Lease arising from and after the Effective
Date.
5. Review Fee. Upon Assignor's execution and delivery of this
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Assignment, Assignor shall pay to Landlord the sum of Two Hundred and
00/100 Dollars ($200.00) in consideration for Landlord's review of
this Assignment and/or review and execution of any estoppel
certificate requested of Landlord in connection with this Assignment.
6. Successors and Assigns. This Assignment shall be binding upon and
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shall inure to the benefit of the successors, assigns and transferees
of the parties hereto.
7. Authority. Landlord expressly represents and warrants that (i)
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Landlord is the holder of the entire interest of the landlord under
the Lease, (ii) Landlord is authorized to enter into this Assignment,
and (iii) the party executing this Assignment on behalf of Landlord is
authorized to do so. Assignor expressly represents and warrants that
(a) Assignor is the holder of the entire interest of the tenant under
the Lease and Assignor has not transferred or conveyed its interest in
the Lease to any person or entity, collaterally or otherwise, (b)
Assignor is authorized to enter into this Assignment, and (c) the
party executing this Assignment on behalf of Assignor is authorized to
do so. Assignee expressly represents and warrants that (I) Assignee
is authorized to enter into this Assignment, and (II) the party
executing this Assignment on behalf of Assignee is authorized to do
so.
8. No Modification of Lease. Nothing contained in this Assignment shall
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be deemed to amend, modify or alter in any way the terms, covenants
and conditions set forth in the Lease.
9. Further Agreements. The parties hereto further agree as follows:
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a. Subsequent to the date hereof, Landlord shall not recognize any
attempted exercise by Assignor of renewal, extension or expansion
rights under the Lease, if any, without Assignee's prior written
consent.
b. Subsequent to the date hereof, no agreement between Landlord and
Assignor modifying, amending, canceling, terminating or
surrendering the Lease or the Premises, or any part thereof,
shall be effective without the prior written consent of Assignee.
c. Subsequent to the Effective Date, Assignor's consent shall not be
required for any of the matters described in 8(a) or 8(b) above.
10. Notices. Prior to the Effective Date, notices to Assignor shall be
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delivered as described in the Lease at the address provided therein
for notices to tenant, and notices to Assignee shall be delivered in
accordance with the terms of the Lease at the following
address:________________________ __________________________________.
Following the
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Effective Date, any notices to Assignee shall be effective when served
to Assignee at the Premises in accordance with the terms of the Lease.
11. Governing Law. This Assignment shall be construed under and governed
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in accordance with the laws of the State of Georgia.
12. Time. Time is of essence of this Assignment.
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13. Counterparts. This Assignment may be executed in multiple
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counterparts, each of which shall be deemed an original provided that
all parties are furnished a copy or copies thereof reflecting the
signature of all parties.
[SIGNATURES ARE ON THE FOLLOWING PAGE]
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IN WITNESS WHEREOF, this Assignment has been executed under seal on behalf
of Assignor, Assignee and Landlord, effective as of the date first above
written.
WITNESS/ATTEST: LANDLORD:
EOP-LAKESIDE OFFICE, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its
sole member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its managing general
partner
/s/ Xxxxxx Xxxxxxxxxxxx By: /s/ Xxxx Xxxxxxx
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Name (print): Xxxxxx Xxxxxxxxxxxx Name: Xxxx Xxxxxxx
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Name (print): Title: VP - Leasing
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WITNESS/ATTEST: ASSIGNOR:
MAPICS, INC., A GEORGIA CORPORATION
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxx
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Name (print): Xxxxxx X. Xxxxxxx Name: Xxxxxx X. Xxxx
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Name (print): Title: V.P. Worldwide Support
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WITNESS/ATTEST: ASSIGNEE:
GENERAL ELECTRIC CAPITAL CORPORATION,
A NEW YORK CORPORATION
/s/ Xxx X. Xxxxxxx By: /s/ Xxxxxx Xxxx
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Name (print): Xxx X. Xxxxxxx Name: Xxxxxx Xxxx
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Name (print): Title: District Manager
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