Exhibit 10.10
RADIANT LEASE AGREEMENT FOR 1727
KIRBY PARKWAY
ARTICLE 1.00 BASIC LEASE
TERMS
1.01 Parties
. This lease agreement
(“Lease”) is entered into this 3
rd
day of January, 2006, by
and between the following Lessor and Lessee:
Jeff Goldstein Investment
Partnership, a Tennessee general partnership
(“Lessor”)
Radiant Systems, Inc., a Georgia
corporation (“Lessee”)
1.02 Leased Premises
. Lessor is the owner in fee simple
of approximately 1.68 acres in Shelby County, Tennessee, which real
property is more particularly described on Exhibit
“A” attached hereto and incorporated herein by this
reference (the “Land”), and is commonly known as 1727
Kirby Parkway, Memphis, Tennessee 38138. The Land is improved with
a two story office building (the “Building”) containing
approximately 28,792 rentable square feet, together with related
parking, driveways, landscaping and similar
improvements.
In consideration of the rents,
terms, provisions and covenants of this Lease, Lessor hereby
leases, lets and demises to Lessee that portion of the Building
containing approximately 22,678 rentable square feet and being more
particularly outlined on Exhibit “B” attached
hereto and incorporated herein by this reference (“leased
premises”), together with the non-exclusive right to use, in
common with Lessor and the other lessees of the Building, free of
charge, areas of the project (as hereinafter defined) and/or
Building intended for the common use of all lessees of the
Building, including, but not limited to, the parking areas,
driveways, landscaped areas, and approximately 629 square feet on
the first floor of the Building containing hallways and restrooms
(the “common areas”), as the common areas may exist
from time to time. Lessor represents and warrants to Lessee that to
the best of Lessor’s actual knowledge, the aforementioned
square footages are correct and have been calculated utilizing
current BOMA Standards. Lessor has, on or before the date hereof,
provided Lessee with a copy of said BOMA calculations. Lessor
shall, upon the written request of Lessee, received within one
(1) year of the commencement date, cause the rentable square
footage of the leased premises to be verified by an architect
selected by Lessor and approved by Lessee (which approval shall not
be unreasonably withheld or delayed) in accordance with BOMA
standard methods of measurement. The cost of such remeasurement
shall be borne by Lessee. If such measurement results in a change
in the rentable square footage of the leased premises, the base
rent, additional rent, taxes, insurance, Lessee’s
Proportionate Share (as hereinafter defined) and any other matters
affected by the rentable square footage of the leased premises
shall be adjusted accordingly. If there is a change in the rentable
square footage of the leased premises, Lessee shall within fifteen
(15) days after Lessor’s written request, execute and
return a lease amendment confirming the necessary
adjustment.
Lessee shall also have the right,
subject to Lessor’s prior approval, and at no extra charge,
to install satellite dishes, antennae, and other similar equipment
on the roof of the Building.
1.03 Term and Option
Terms . Subject to and
upon the conditions set forth herein, the term of this Lease shall
commence on January 3, 2006, (the “commencement
date”) and shall terminate on December 31, 2010. Lessee
shall have two (2) options to extend the term of the Lease for
additional terms of three (3) years each provided Lessee shall
give Lessor one hundred eighty (180) days notice prior to the
expiration of the initial term (or first option term) of its
election to exercise such option and provided further that Lessee
is not in default of the Lease at the time of such exercise (beyond
any applicable notice and cure period).
1.04 Base Rent
. Base rent is Thirty Four Thousand
Seventeen and no/100ths Dollars ($34,017.00) per month during the
period January 3, 2006 until December 31, 2006, and
monthly base rent shall increase by three and one-half percent
(3.5%) each calendar year thereafter as follows:
January
1, 2007 - December 31, 2007
$35,208.00 per
month
January
1, 2008 - December 31, 2008
$36,440.00 per
month
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Page 1 of 19
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January
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1, 2009 -
December 31, 2009
$37,715.00 per
month
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January
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1, 2010 -
December 31, 2010
$39,035.00 per
month
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The base rent payable for each month
during the extended or option term shall be the prevailing rental
rate (the “Prevailing Rental Rate”) at the commencement
of such extended or option term. As used in this Lease, the term
“Prevailing Rental Rate” shall mean the then prevailing
monthly rental rate per square foot of space comparable in use,
area and location to the space for which the Prevailing Rental Rate
is being determined and being leased for a duration comparable for
which such space is leased for periods commencing on or about the
commencement of the term of such space. The Prevailing Rental Rate
shall be determined by taking into consideration comparable fact
situations during the prior 12-month period or any more recent
relevant period in comparable buildings in Memphis, Tennessee.
Lessor shall notify Lessee of Lessor’s determination of the
Prevailing Rental Rate within fifteen (15) days after receipt
of Lessee’s renewal election notice. If Lessee agrees with
Lessor’s determination of the Prevailing Rental Rate, then,
such determination by Lessor shall constitute the Prevailing Rental
Rate. If Lessee disagrees with Lessor’s determination of the
Prevailing Rental Rate, Lessee shall notify Lessor of
Lessee’s disagreement within fifteen (15) days after
Lessee’s receipt of Lessor’s notice of its
determination of the Prevailing Rental Rate. If Lessee so notifies
Lessor, that Lessor’s determination of the Prevailing Rental
Rate is not acceptable to Lessee, Lessor and Lessee shall, during
the fifteen (15) day period after Lessee’s notice,
attempt to agree on the Prevailing Rental Rate. If Lessor and
Lessee are unable to agree, then the Prevailing Rental Rate shall
be determined as provided below: Lessor and Lessee shall each
select an expert (as hereinafter described) within fifteen
(15) days after the expiration of the aforementioned fifteen
(15) day period. Such expert shall be independent and
experienced in leasing similar-class space in Memphis, Tennessee,
and shall be instructed to form their opinions based on the
criteria specified above. Both experts so selected shall within ten
(10) days after their selection, select a third
(3rd) expert who shall also meet the same qualifications. The
three (3) experts so selected shall within fifteen
(15) days after the selection of the third (3rd) expert
each independently formulate their opinion of the Prevailing Rental
Rate for the space and period in question. The three
(3) opinions shall then be averaged and such average shall be
the Prevailing Rental Rate; provided, however, that if any experts
opinion is more than five percent (5%) greater or less than
the middle opinion, then such greater or lesser opinion (or both if
each is more a variance from the middle opinion than five percent
(5%)), shall be disregarded and the remaining number of opinions
shall be added together with the sum thereof divided by the
remaining number of opinions and the quotient thereof shall be the
Prevailing Rental Rate. The determination of the Prevailing Rental
Rate by the three (3) experts (or such lesser number of
experts as may be applicable in accordance with the above
provisions) shall be binding upon Lessor and Lessee. Lessor and
Lessee shall each pay for the services of its expert and shall
share equally in the cost of the third expert.
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Lessor’s
Address:
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Lessee’s
Address:
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1580 West
Massey Rd.
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3925 Brookside
Parkway
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Memphis,
Tennessee 38120
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Alpharetta,
Georgia 30022
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Phone:
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Phone:
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Fax:
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Fax:
(770) 360-7627
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Email:
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Email:
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1.06 Permitted Use
. General Office Use.
ARTICLE 2.00 RENT
2.01 Base Rent
. Lessee agrees to pay monthly as
base rent during the term of this Lease the sum of money set forth
in section 1.04 of this Lease, which amount shall be payable to
Lessor at the address shown above.
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One monthly installment of rent shall be due and
payable on the date of execution of this Lease by Lessee for the
first month’s rent and a like monthly installment shall be
due and payable on or before the first day of each calendar month
succeeding the commencement date during the term of this Lease;
provided, if the commencement date should be a date other than the
first day of a calendar month, the monthly rental set forth above
shall be prorated to the end of that calendar month, and all
succeeding installments of rent shall be payable on or before the
first day of each succeeding calendar month during the term of this
Lease. Lessee shall pay, as additional rent, all other sums due
under this Lease.
2.02 Operating Expenses . The term
“operating expenses” includes all reasonable and
customary expenses and disbursements (subject to the limitations
set forth below) that Lessor incurs during the term of this Lease
in connection with the ownership, operation, and maintenance of the
project, determined in accordance with sound accounting principles
consistently applied, including, but not limited to, the following:
(a) maintenance, repair and replacement costs;
(b) electricity, fuel, water, sewer, gas and other utility
charges; (c) security; (d) window washing and janitorial
services; (e) trash and snow removal; (f) landscaping and
pest control; (g) management fees (if any), but only to the
extent such fees are comparable to fees in comparable buildings in
the area; (h) wages and benefits payable to employees of
Lessor or others (at the level of property manager or below) whose
duties are directly connected with the operation and maintenance of
the Building; (i) all services, supplies, repairs,
replacements or other expenses for maintaining and operating the
project, including parking and common areas; (j) all real
property taxes and installments of special assessments, including
dues and assessments by means of reciprocal easements, deed
restrictions and/or owners’ associations which accrue against
the Building of which the leased premises are a part during the
term of this Lease including the commercially reasonable cost of
proceedings contesting any real estate appraisal or assessment;
(k) and all insurance premiums Lessor is required to pay or
deems commercially reasonably necessary to pay related to the
Building, including fire, casualty and extended coverage (including
flood and earthquake coverage) and public liability insurance with
respect to the project. The term operating expenses does not
include the following: (i) repairs, restoration or other work
occasioned by fire, wind, the elements or other casualty or
condemnation if Lessor’s insurance proceeds or condemnation
proceeds covers such loss; (ii) penalties and interest on
taxes or income and franchise taxes of Lessor; (iii) interest
or principal payments (or other payments) on any mortgage or other
indebtedness of Lessor, or costs of refinancing such indebtedness;
(iv) capital expenses related to the Building or the cost of
capital improvements or additions; (v) management, accounting,
legal, or brokerage fees incurred by Lessor, or other expenses
related to leasing tenant space or constructing improvements for
the sole benefit of an individual tenant; (vi) costs
associated with conforming the Building to present and future laws,
ordinances and building codes, including, but not limited to,
environmental, health and safety laws; (vii) any depreciation
allowance or expense; (viii) expenses for repairs or
maintenance related to the project which have been reimbursed to
Lessor pursuant to warranties or service contracts;
(ix) expenses for repairs, alterations, and general
maintenance necessitated by the negligence or willful misconduct of
Lessor or any other tenant of the Building; (x) any cost or
expense associated with Mr. Kummerer and/or any maintenance
employee to be engaged by Lessee in accordance with section 5.05
below; and (xi) any other expense which is not a fair and
reasonable direct operating expense of the Building, or under
generally accepted accounting principles, consistently applied,
would not be considered a normal maintenance, repair, management or
operating expense of the Building.
In the event Lessor elects not to
contest any re-assessment or re-appraisal of real property taxes,
Lessor shall give Lessee notice of such election at least thirty
(30) days prior to the last day to file such proceeding and
Lessee shall have the right to file a contest to such re-appraisal
or re-assessment on behalf of Lessor, at Lessee’s expense;
provided, however, that in the event of any abatement of such
taxes, the reasonable cost and expense of the proceedings shall be
a first charge against any recovery. Lessor agrees to cooperate
with Lessee in any such contest.
2.03 Additional Rent
. Lessee shall pay to Lessor, as
additional rent hereunder (“additional rent”),
Lessee’s Proportionate Share of the amount by which the
annual operating expenses for each year of the term exceeds the
annual operating expenses for calendar year 2005 (the “Base
Year”). The Lessee’s Proportionate Share (herein so
called) shall be the percentage obtained by dividing (a) the
number of rentable square feet in the Building as stated above by
(b) the rentable square feet in the Building with respect to
the charge being prorated at the time a respective charge was
incurred. Operating expenses for
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the Base Year, for the purpose of comparisons of
the Base Year with subsequent years only, shall be calculated so as
to not include any cost incurred by Lessor (or Synchronics, Inc.)
in connection with Louis Kummerer, the maintenance employee of
Synchronics, Inc. referenced in section 5.05 below, such costs to
include, but not be limited to, Mr. Kummerer’s salary,
benefits and associated payroll costs.
Lessor shall make a good faith
estimate of the additional rent to be due by Lessee for any
calendar year or part thereof during the term. During each calendar
year or partial calendar year of the term, Lessee shall pay to
Lessor, in advance concurrently with each monthly installment of
base rent, an amount equal to the estimated additional rent for
such calendar year or part thereof divided by the number of months
therein. From time to time, Lessor may estimate and re-estimate the
additional rent to be due by Lessee and deliver a copy of the
estimate or re-estimate to Lessee. Thereafter, the monthly
installments of additional rent payable by Lessee shall be
appropriately adjusted in accordance with the estimations so that,
by the end of the calendar year in question, Lessee shall have paid
all of the additional rent as estimated by Lessor. Any amounts paid
based on such an estimate shall be subject to adjustment as herein
provided when actual operating expenses are available for each
calendar year.
By January 31 of each calendar
year, or as soon thereafter as practicable, Lessor shall furnish to
Lessee a statement of operating expenses for the previous year. If
Lessee’s estimated payments of operating expenses exceed
Lessee’s share of actual operating expenses, then Lessor
shall promptly credit or reimburse Lessee for such excess;
likewise, if Lessee’s estimated payments of operating
expenses for such year are less than Lessee’s share of actual
operating expenses, then Lessee shall promptly pay Lessor such
deficiency, notwithstanding that the term has expired and Lessee
has vacated the leased premises.
Within sixty (60) days after
Lessor furnishes to Lessee the actual statement of operating
expenses for the previous year, Lessee may, at its expense, during
Lessor’s normal business hours, elect to audit Lessor’s
books and records. Lessor shall cooperate fully with such audit.
After verification, Lessor shall credit any overpayment determined
by the audit report against the next rent due and owning by Lessee
or, if no further rent is due, refund such overpayment directly to
Lessee within thirty (30) days of determination. Likewise,
Lessee shall pay Lessor any underpayment determined by the audit
report within thirty (30) days of determination. The foregoing
obligations shall survive the expiration or earlier termination of
the Lease. If the audit proves that Lessor’s calculation of
operating expenses for the calendar year under inspection was
overstated by more than five percent (5%) in the aggregate,
then, after verification, Lessor shall pay Lessee’s
reasonable out-of-pocket audit and inspection fees for said audit
within thirty (30) days after receipt of Lessee’s
invoice therefor.
2.04 Late Payment
Charge . Other remedies
for nonpayment of rent notwithstanding, if the monthly rental
payment is not received by Lessor on or before the tenth (10
th
) day of the month
for which the rent is due, or if any other payment due Lessor by
Lessee is not received by Lessor on or before the tenth (10
th
) day of the month
next following the month in which Lessee was invoiced, a late
payment charge of five (5%) percent of such past due amount
shall become due and payable in addition to such amounts owed under
this Lease, said amount shall accrue from such 10
th
day through the date of
payment.
2.05 Increase in Insurance
Premiums . If an increase
in any insurance premiums paid by Lessor for the Building is caused
by Lessee’s use of the leased premises in a manner other than
as set forth in section 1.06, or if Lessee vacates the leased
premises and thereby causes an increase in such premiums, then
Lessee shall pay as additional rent the amount of such increase to
Lessor.
2.06 Security Deposit
. None required.
2.07 Holding Over . In the event that Lessee
does not vacate the leased premises upon the expiration or
termination of this Lease, Lessee shall be a tenant at will for the
holdover period and all of the terms and provisions of this Lease
shall be applicable during that period, except that Lessee shall
pay Lessor as base rent for the period of such holdover an amount
equal to one hundred fifty percent (150%) of Lessee’s
then current base rent. During such holdover period, Lessee agrees
to vacate and deliver the leased premises to Lessor upon
Lessee’s receipt of notice from Lessor to vacate. The rental
payable during the holdover period
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shall be payable to Lessor on demand. No holding
over by Lessee, whether with or without the consent of Lessor,
shall operate to extend the term of this Lease.
ARTICLE 3.00 OCCUPANCY AND
USE
3.01 Use . Lessee warrants and represents to Lessor that
the leased premises shall be used and occupied by Lessee only for
the purpose as set forth in section 1.06. Lessee shall occupy the
leased premises, conduct its business and control its agents,
employees, invitees and visitors in such a manner as is lawful,
reputable and will not create a nuisance. Lessee shall not permit
any operation which emits any offensive odor or matter which
intrudes into other portions of the Building, use any apparatus or
machine which makes undue noise or causes vibration in any portion
of the Building or otherwise interfere with, annoy or disturb any
other lessee in its normal business operations or Lessor in its
management of the Building. Lessee shall neither permit any waste
on the leased premises nor allow the leased premises to be used in
any way which would, in the reasonable opinion of Lessor, be extra
hazardous on account of fire or which would in any way increase or
render void the fire insurance on the Building.
3.02 Signs
. No sign of any type or description
shall be erected, placed or painted in or about the leased premises
or Land except those signs submitted to Lessor in writing and
approved by Lessor in writing.
3.03 Compliance with Laws, Rules
and Regulations . Lessee,
at Lessee’s sole cost and expense, shall comply in all
material respects with all laws, ordinances, orders, rules and
regulations of state, federal, municipal or other agencies or
bodies having jurisdiction over Lessee’s specific use,
condition or occupancy of the leased premises. Notwithstanding the
foregoing, Lessor shall bear the risk of complying with Title III
of the Americans With Disabilities Act of 1990, any state laws
governing handicapped access or architectural barriers, and all
rules, regulations, and guidelines promulgated under such laws, as
amended from time to time, as same affect the Building (including
the leased premises) and the Land. Lessee will comply with the
rules and regulations of the Building which are set forth on
Schedule 1 attached to this Lease. Lessor shall have the
right to change and amend the rules and regulations in any
reasonable manner as may be deemed advisable for the safety, care,
cleanliness, preservation of good order and operation or use of the
Building or the leased premises, provided that such changes and
amendments are applicable to all tenants of the Building, will not
unreasonably interfere with Lessee’s use of the leased
premises and are enforced by Lessor in a non-discriminatory manner.
If a change or amendment materially affects Lessee (as determined
by Lessee in the exercise of its reasonable business judgment),
then Lessor shall obtain Lessee’s prior written consent to
such change or amendment prior to implementation of same. All
changes and amendments to the rules and regulations of the Building
will be sent by Lessor to Lessee in writing and shall thereafter be
carried out and observed by Lessee.
3.04 Warranty of
Possession . Lessor
warrants that it has the right and authority to execute this Lease,
and Lessee, upon payment of the required rents and subject to the
terms, conditions, covenants and agreements contained in this
Lease, shall peaceably and quietly hold and enjoy and have
possession of the leased premises during the full term of this
Lease as well as any extension or renewal thereof, without
hindrance from Lessor or any party claiming by, through, or under
Lessor.
3.05 Inspection
. Lessor or its authorized agents
shall at any and all reasonable times have the right to enter the
leased premises (after giving Lessee at least twenty-four hours
notice thereof, which may be oral notice, except in cases of real
or apparent emergency, in which case no notice shall be required)
to inspect the same, to supply building maintenance and other
services to be provided by Lessor, to show the leased premises to
prospective purchasers, and to alter, improve or repair the leased
premises or any other portion of the Building if such alteration,
repair, or improvement is the responsibility of Lessor hereunder.
Lessee hereby waives any claim for damages for injury or
inconvenience to or interference with Lessee’s business, any
loss of occupancy or use of the leased premises, and any other loss
occasioned thereby. Lessor shall at all times have and retain a key
with which to unlock all of the doors in, upon and about the leased
premises and operate the security system, if any. Lessee shall not
change Lessor’s lock system or in any other manner prohibit
Lessor from entering the leased premises. Lessor shall have the
right to use any and all means which
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Lessor may deem proper to open any door in an
emergency without liability therefor. Notwithstanding the
foregoing, in no event shall Lessor be entitled to make any
alterations, repairs or improvements which would reasonably be
expected to have any material adverse effect upon Lessee’s
business operations, and all entries into the leased premises shall
be conducted in such manner so as to minimize any interruption with
Lessee’s business operations.
3.06 Intentionally omitted.
ARTICLE 4.00 UTILITIES AND
SERVICE
4.01 Building Services
. Lessor shall provide water and
electricity hook-ups for Lessee during the term of this Lease, but
Lessee shall pay for all utilities incurred by Lessee and relating
to the leased premises. Lessee shall pay all telephone charges
incurred by Lessee and relating to the leased premises. Lessor
shall insure Lessee hot and cold water at those points of supply
provided for general use with other lessees in the Building,
central heating and air conditioning, routine maintenance and
electric lighting service for the parking areas and other common
areas of the Building, and janitorial service in accordance with
section 4.03 below. Should any of the equipment or machinery break
down, or for any cause cease to function properly, Lessor shall use
reasonable diligence to repair the same promptly, but Lessee shall
have no claim for rebate of rent on account of any interruption in
service occasioned from the repairs. Lessor acknowledges and agrees
that all services provided by Lessor to Lessee shall be provided to
a standard at least equivalent to such services as are provided at
other comparable office buildings in Memphis, Tennessee .
Notwithstanding any other provision contained in this Lease to the
contrary, Lessor acknowledges and agrees that, in the event any of
the services required to be provided by Lessor under this Lease are
not provided for a period of five (5) consecutive days as a
result of a condition within Lessor’s reasonable control,
then all rent due hereunder shall abate from the end of said five
day period until such time as all such services are resumed.
Furthermore, in the event Lessor fails to provide any such service
for a period of twenty (20) consecutive days as a result of a
condition within Lessor’s reasonable control, then, Lessee
shall have the right to terminate this Lease. Lessor reserves the
right from time to time to make changes in the utilities and
services provided by Lessor to the Building, so long as such
changes do not adversely affect Lessee’s business operations
at the leased premises.
4.02 Theft or Burglary
. Lessor shall not be liable to
Lessee for losses to Lessee’s property or personal injury
caused by criminal acts or entry by unauthorized persons into the
leased premises or the Building, unless caused by Lessor’s
negligence or willful misconduct.
4.03 Janitorial
Service . Lessor shall
furnish janitorial services to the leased premises and public areas
of the Building no less than five (5) times per week during
the term of this Lease, excluding holidays. Lessor shall also
provide janitorial service to kitchens or storage areas included in
the leased premises.
4.04 Window Coverings
. Lessor shall furnish and install
window coverings on all exterior windows to maintain a uniform
exterior appearance. Lessee shall not remove or replace these
window coverings or install any other window covering which would
affect the exterior appearance of the Building. Lessee may install
lined or unlined over draperies on the interior sides of the Lessor
furnished window coverings for interior appearance or to reduce
light transmission, provided such over draperies do not affect the
exterior appearance of the Building or affect the operation of the
Building’s heating, ventilating and air conditioning
systems.
ARTICLE 5.00 REPAIRS AND
MAINTENANCE
5.01 Lessor Repairs.
Lessor shall not be required to make
any improvements, replacements or repairs of any kind or character
to the leased premises or the Building during the term of this
Lease except as are set forth in this section. Lessor shall
maintain in good repair and working order, make repairs to and
perform
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maintenance upon (a) the roof, foundation,
and structural elements of the Building, (b) the common areas;
(c) mechanical (including HVAC), electrical, plumbing and
fire/life safety systems serving the Building, and (d) the
exterior windows of the Building. With respect to the foregoing,
Lessor acknowledges and agrees that all such maintenance shall be
performed to a standard at least equivalent to the maintenance
standards then being maintained for other comparable office
buildings in Memphis, Tennessee. Provided Lessor complies with all
requirements of this Lease related to such repair and maintenance
work, Lessor shall not be liable to Lessee, except as expressly
provided in this Lease, for any damage or inconvenience, and Lessee
shall not be entitled to any abatement or reduction of rent by
reason of any repairs, alterations or additions made by Lessor
under this Lease.
5.02 Lessee Repairs
. Lessee shall, at its sole cost and
expense, perform all maintenance and repairs to the leased premises
that are not Lessor’s express responsibility under this
Lease, and shall keep the leased premises in good condition and
repair, ordinary wear and tear and casualty and condemnation
excepted. Lessee’s repair obligations include, without
limitation, repairs to: (a) floor covering and/or raised
flooring; (b) interior partitions; (c) doors; and
(d) the interior side of demising walls. Notwithstanding the
foregoing, Lessee shall, at its own cost and expense, repair or
replace any damage or injury to all or any part of the Building
caused by any act or omission of Lessee or Lessee’s agents,
employees, invitees, licensees or visitors; provided, however, if
Lessee fails to make the repairs or replacements promptly, Lessor
may, at its option, make such repairs or replacements, and the
costs of such repairs or replacements shall be charged to Lessee as
additional rent and shall become payable by Lessee with the payment
of the rent next due hereunder.
5.03 Request for
Repairs . All requests
for repairs or maintenance that are the responsibility of Lessor
pursuant to any provision of this Lease must be made in writing to
Lessor at the address in section 1.05.
5.04 Lessee Damages
. Lessee shall not allow any waste
to be committed by Lessee or Lessee’s agents or employees, on
any portion of the leased premises or Building, and at the
termination of this Lease, by lapse of time or otherwise, Lessee
shall deliver the leased premises to Lessor in as good condition as
existed at the commencement date of this Lease, ordinary wear and
tear and casualty and condemnation excepted. The cost and expense
of any repairs necessary to restore the condition of the leased
premises as specified in the immediately preceding sentence shall
be borne by Lessee.
5.05 Maintenance
Employee . Lessee shall
employ, with Lessor’s approval, such full or part-time
maintenance personnel as may be necessary to provide the general
maintenance and repair functions for the Building, including the
common areas, as are presently provided by Louis Kummerer as an
employee of Synchronics, Inc. All costs associated with such person
(collectively the “Maintenance Employee Costs”),
including salary, benefits, and associated payroll costs (FICA,
FUTA, and the like) shall be paid by Lessee. Lessor shall reimburse
to Lessee, on a monthly basis, an amount equal to the Maintenance
Employee Costs incurred by Lessee for the applicable month less
Lessee’s Proportionate Share of such Maintenance Employee
Costs. In accordance with the provisions of section 2.03 of this
Lease, the parties will estimate the amount of the Lessor’s
anticipated monthly reimbursement and reduce the estimated monthly
payments of additional rent to be paid by Lessee to Lessor under
such section. The parties will take into account the actual amount
of such costs allocable to the Lessee and Lessor, respectively, in
connection with the January 31 reconciliation described in
section 2.03. It shall be Lessor’s responsibility to provide
Lessee’s maintenance employee with access to all portions of
the Building, including those portions of the Building occupied by
other lessees. Prior to the commencement date, Lessor shall provide
Lessee with (a) the written consent of all such lessees,
authorizing Lessee’s maintenance employee to enter the space
occupied by such lessees to perform the maintenance and repair work
contemplated in this section 5.05; and (b) the keys to each
such lessee’s space.
5.06 Lessee as Manager of
Project . Since Lessee
will initially occupy approximately 78% of the Building, Lessor and
Lessee may subsequently agree that, in order to facilitate
efficient operation of the project, Lessee shall perform certain
limited property management functions. To the extent the parties
determine that such an arrangement is advantageous, then such
arrangement shall be memorialized in either an amendment to this
Lease or in a separate written agreement between the
parties.
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ARTICLE 6.00 ALTERATIONS AND
IMPROVEMENTS
6.01 Lessor
Improvements .
None.
6.02 Lessee
Improvements. Lessee
shall not make or allow to be made any alterations or physical
additions in or to the leased premises without first obtaining the
written consent of Lessor, which consent shall not be unreasonably
withheld, conditioned or delayed, except for alterations of a
cosmetic nature such as painting, wallpapering, hanging pictures
and installing carpeting as well as installation of unattached,
movable trade fixtures which may be installed without drilling,
cutting or otherwise defacing the leased premises. Any alterations,
physical additions or improvements to the leased premises made by
Lessee shall at once become the property of Lessor and shall be
surrendered to Lessor upon the termination of this Lease; provided,
however, Lessor, at its option, may require Lessee to remove any
physical additions and/or repair any alterations in order to
restore the leased premises to the condition existing at the time
Lessee took possession (reasonable wear and tear and casualty and
condemnation excepted), all costs of removal and/or alterations to
be borne by Lessee. With respect to the foregoing, Lessor agrees to
advise Lessee at the time of its approval of each alteration or
physical addition requiring Lessor’s approval hereunder as to
whether Lessor will require the removal thereof. In no event shall
Lessee be required to remove any cabling or wiring installed to
serve the leased premises. This clause shall not apply to
unattached trade fixtures, moveable equipment or furniture and
personal property owned by Lessee, which may be removed by Lessee
at the end of the term of this Lease if Lessee is not then in
default beyond any applicable notice and cure period.
6.03 Mechanics Lien
. Lessee will not permit any
mechanic’s or materialman’s lien(s) or other lien to be
placed upon the leased premises or the Building and, except as
provided in section 5.05, nothing in this Lease shall be deemed or
construed in any way as constituting the consent or request of
Lessor, express or implied, by inference or otherwise, to any
person for the performance of any labor or the furnishing of any
materials to the leased premises, or any part thereof, nor as
giving Lessee any right, power, or authority to contract for or
permit the rendering of any services or the furnishing of any
materials that would give rise to any mechanic’s,
materialman’s or other lien against the leased premises. In
the event any such lien is attached to the leased premises, and
Lessee fails to timely take either action set forth in subclause
(a) or (b) below of this section, then, in addition to
any other right or remedy of Lessor, Lessor may, but shall not be
obligated to obtain the release of or otherwise discharge 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. If such a
lien is filed, then Lessee shall, within ten (10) days after
Lessor has delivered notice of the filing thereof to Lessee (or
such earlier time period as may be necessary to prevent the
forfeiture of the leased premises, the Building, the Land or any
interest of Lessor therein or the imposition of a civil or criminal
fine with respect thereto), either: (a) pay the amount of the
lien and cause the lien to be released of record; or
(b) diligently contest such lien and deliver to Lessor a bond
or other security reasonably satisfactory to Lessor.
ARTICLE 7.00 CASUALTY AND
INSURANCE
7.01 Substantial
Destruction . If the
leased premises should be totally destroyed by fire or other
casualty, or if the leased premises should be damaged so that
rebuilding or repairs cannot reasonably be completed within one
hundred eighty (180) days after the occurrence of such
casualty (as estimated by Lessor in the exercise of its reasonable
business judgment), then Lessee may, at its option, terminate this
Lease, in which event the rent shall be abated for the unexpired
portion of the Lease, effective as of the date of the damage;
provided, however, in the event such damage occurs during the last
year of the initial term of the Lease (or any extension term), then
this Lease shall terminate, and rent shall be abated for the
unexpired portion of the Lease, effective as of the date of the
damage. Lessor shall notify Lessee of Lessor’s estimate of
the time it will take to effectuate such rebuilding or repair as
soon after such damage occurs as is possible.
7.02 Partial
Destruction . If the
leased premises should be partially damaged by fire or other
casualty, and rebuilding or repairs can reasonably be completed
within one hundred eighty (180) days after the occurrence of
such casualty (as estimated by Lessor in the exercise of its
reasonable business judgment), this Lease
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shall not terminate, and Lessor shall at its
sole risk and expense proceed with reasonable diligence to rebuild
or repair the leased premises or other improvements to
substantially the same condition in which they existed prior to the
damage. If the leased premises are to be rebuilt or repaired and
are untenantable in whole or in part following the damage, and the
damage or destruction was not caused or contributed to by the act
or negligence of Lessee, its agents, employees, invitees or those
for whom Lessee is responsible, the rent payable under this Lease
during the period for which the leased premises are untenantable
shall be adjusted to such an extent as may be fair an