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Exhibit 10.21
Codigent Solutions Group, Inc.
1209 Laurel Street
Triple Net Lease
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BASIC LEASE INFORMATION
* This is a Triple Net Lease and Tenant shall pay all utilities; janitorial costs; general and equipment maintenance expenses, taxes, property expenses, insurance, and other costs, all as more specifically described herein.
(Annual) Rent per Rentable Square Foot shall be the greater of the rates set forth below or the market rate at such time but in no event shall such rate exceed $25.00/RSF
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* This is a Triple Net Lease and Tenant shall pay all utilities; janitorial costs; general and equipment maintenance expenses, taxes, property expenses, insurance, and other costs, all as more specifically described herein.
The foregoing Basic Lease information is hereby incorporated into and made a part of this Lease. Each reference in this Lease to any of the Basic Lease Information shall mean the respective information herein above set forth and shall be construed to incorporate all of the terms provided under the particular Lease paragraph pertaining to such information. In the event of any conflict between any Basic Lease Information and the Lease, the latter shall control.
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TABLE OF CONTENTS
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LEASE AGREEMENT
THIS LEASE AGREEMENT is made and entered into as of April 10, 2002, by and between Nashville Urban Partners 2000 II, LLC (herein called “Landlord”), and Codigent Solutions Group, Inc. (herein called “Tenant”);
WITNESSETH :
Tenant desires to lease those premises (the “Premises”) consisting of all of the land, parking areas and the building located at 1209 Laurel Street, Nashville, Tennessee (the “Building”). The fee simple owner of the Premises is C. Mark Carver, Trustee (the “Trustee”) pursuant to that certain Amended and Restated Trust Agreement dated September 29, 2000 (the “Trust Agreement”). Landlord is the sole beneficiary under the Trust Agreement as it applies to the Premises. As such beneficial owner of the Premises, Landlord is the landlord under this Lease.
Upon and subject to the terms, covenants and conditions hereinafter set forth, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Premises.
Tenant shall use and occupy the premises for purposes of general office use and operating its business providing e-business services and information technology services, and for no other use or purpose without the prior written consent of Landlord. Landlord shall have the right to use (a) Storage Area A as shown on Exhibit A hereto for storage until July 1, 2002 and (b) Storage Area B as shown on Exhibit A hereto for storage until May 6, 2002. Prior to May 6, 2002, Landlord shall use reasonable efforts to consolidate all of its materials in Storage Area B on one side of Storage Area B. Prior to entering such storage areas, shall provide Tenant with reasonable notice. Landlord and Tenant agree and acknowledge that Landlord may, at any time during the Term of the Lease after providing Tenant with at least 30 days prior written notice, remove from the Building the portions of the Building shown on Exhibit A as Storage Area A and Office Area A. Until such time that Landlord commences such removal (and subject to the right of Landlord to use Storage Areas A and B as described above), Tenant shall have the right to use and occupy Storage Area A and Office Area A. In the course of removing such portions of the Building, Landlord shall use its best efforts in good faith to avoid any material interference with Tenant’s business operations, including, without limitation, interruption of utility services. Landlord shall be liable (to the extent such liability is not covered by insurance) with respect to interference with Tenant’s business for which Landlord’s action is the direct, material and proximate cause of Tenant’s inability to provide substantial and customary service to its customers.
(a) The term of this Lease (the “Term”) shall be for a period of sixty (60) months as specified in the Basic Lease Information or until sooner terminated or extended as herein provided. The Commencement Date shall be April 15, 2002. Upon reasonable prior request to Landlord, Tenant shall have reasonable rights to enter the Building prior to the Commencement Date to prepare the space and move in equipment and furniture but Tenant shall not commence its business operations in the Building prior to the Commencement Date.
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(b) Landlord hereby grants to Tenant the option to renew the Lease for an additional term commencing April 15, 2007 and ending on April 14, 2012 unless sooner terminated as herein provided. To exercise such renewal option, Tenant must provide Landlord with written notice on or before one hundred eighty (180) days prior to the expiration of the initial term of this Lease. Rent for the extension term shall be at the greater of (i) the prevailing market rate for the central business district in Nashville, Tennessee, at such time for comparable space or (ii) the rates set forth in the Basic Lease Information set forth herein but in no event shall the Rent per square foot during the five-year additional term exceed $25.00 per rentable square foot. Tenant and Landlord shall, on or before 90 days prior to the expiration of the initial term of the Lease, agree upon the rental rate after using their best efforts in good faith. In the event that the parties cannot agree prior to such time, then the renewal of the Term shall be void and the Lease shall terminate on April 14, 2007.
(c) Notwithstanding the foregoing Section 2(b), during the second five years of the Term of the Lease, Landlord shall have the right to move Tenant to another “comparable location” at Landlord’s sole cost and expense. The comparable location shall be equal to or superior to the quality of the Building (including, without limitation, the specifications, build out whether done by Landlord or Tenant in the Building, parking and security). The move shall not result in an interruption of Tenant’s business. In the event that Landlord desires to exercise such option to move Tenant, Landlord shall provide Tenant with at least one hundred eighty (180) days prior written notice.
3. Rent
(a) Tenant shall pay to Landlord throughout the Term the annual rental amount specified in the Basic Lease Information (“Rent”), which sum shall be payable by Tenant in equal monthly installments on or before the first day of each month, in advance, in lawful money of the United States, without any prior demand therefore and without deduction or offset whatsoever, to Landlord at the address specified in the Basic Lease Information or to such other firm or to such other place as Landlord may from time to time designate in writing. Tenant shall pay to Landlord all charges and other amounts whatsoever as and when provided in the Lease (the “Additional Charges”). All Additional Charges will be payable to Landlord at the place where the Rent is payable and Landlord shall have the same remedies for a default in payment of Additional Charges as for a default in the payment of Rent. If the Commencement Date should occur on a day other than the first day of a calendar month, or if the Expiration Date should occur on a day other than the last day of a calendar month, then the Rent and Additional Charges for such fractional month shall be prorated on a daily basis.
(b) Tenant recognizes that late payment of any Rent or Additional Charges will result in administrative expense to Landlord, the extent of which additional expense is extremely difficult and economically impractical to ascertain. Tenant therefore agrees that if any Rent or Additional Charges remain unpaid for more than five (5) days after the amount is due, the amount of such unpaid Rent or Additional Charges shall be increased by a late charge to be paid to Landlord by Tenant in an amount equal to ten percent (10%) of the amount of the delinquent Rent or Additional Charges calculated from the date originally due. The amount of the late charge to be paid to Landlord by Tenant on any unpaid Rent or Additional Charges shall be added to Tenant’s obligation for the monthly period on which the late charge is unpaid, all of which shall be due and payable on demand. The provisions of this Paragraph 3(b) in no way relieve Tenant of the obligation to pay rent or additional charges on or before the date on which they are due, nor do the terms of Paragraph 3(b)
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in any way affect Landlord’s remedies pursuant to Paragraph 21 in the event any Rent or Additional Charge is unpaid after the date due.
(c) Landlord acknowledges that Tenant has deposited with Landlord the Security Deposit in the amount of $25,000.00. Landlord shall hold the Security Deposit for the full and faithful performance by Tenant of all terms, covenants, and conditions of this Lease to be performed on the part of Tenant, which sum shall be returned to Tenant after the expiration or termination of this Lease within ten (10) business days after termination provided Tenant has fully and faithfully carried out all of the terms, covenants, and conditions to be performed by Tenant under this Lease. Tenant shall not mortgage, assign, or encumber the Security Deposit without the prior written consent of Landlord. In the event of a bona fide sale of the Building subject to this Lease, Landlord (and any future landlord) shall have the right to transfer the Security Deposit to such purchaser only for the benefit of Tenant, whereupon Landlord shall be released by Tenant from all liability for the return of the Security Deposit and Tenant agrees to look solely to the purchaser for the return of the Security Deposit.
Tenant is responsible for payment of the following, which shall be paid directly by Tenant to the provider of such services;
(1) INSURANCE, including, but not limited to, (i) fire and extended coverage premium, (ii) earthquake and extended coverage premium, (iii) liability and extended coverage premium, and (iv) premiums for other insurance customarily carried from time to time by landlords in the general area of the Building;
(2) TAXES, including, but not limited to, (i) real estate taxes and assessments on the Land, the Building or the Premises, and taxes and assessments levied in substitution or supplementation in whole or in part of such taxes, (ii) personal property taxes (for the Building’s personal property, including license expenses), (iii) taxes imposed on services of Landlord’s agents and employees, and (iv) all other taxes or fees now or hereafter levied by any governmental authority on the Building, the Land or its contents or on the operation and use thereof.
5. Utilities
Tenant will at its own cost and expense pay for all water, sanitary sewer, gas, electricity, and other utilities used in the Premises and will save and hold Landlord harmless from any charge or liability for same. Such payments shall be made directly to the supplier of any utility to whom Landlord may direct Tenant to pay.
Tenant shall not use or allow the Premises to be used for any improper, immoral, unlawful or objectionable purpose, nor shall Tenant cause or maintain or permit any nuisance in on or about the Premises. Tenant shall not commit or suffer the commission of any waste in, on or about the Premises.
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Tenant shall not use the Premises, and or the Building, or permit anything to be done in or about the Premises, and or the Building, which will in any way conflict with the law, statute, ordinance or governmental rule or regulation now in force or which may hereafter be enacted or promulgated. Tenant shall not do or permit anything to be done on or about the Premises, and or the Building, or bring or keep anything therein which will in any way increase the rate of any insurance upon the Building or any of its contents or cause a cancellation of such insurance upon the Building or any of its contents or otherwise affect such insurance in any manner, and Tenant shall at its sole cost and expense promptly comply with all laws, statutes, ordinances and governmental rules, regulations or requirements now in force or which may hereafter be in force and with the requirements of any board of fire underwriters or other similar body now or hereafter constituted relating to or affecting the condition, use or occupancy of the Premises, and or the Building, excluding structural changes not related to or affected by alterations or improvements made by or for Tenant or Tenant’s acts. The judgment or opinion of any administrative body or court of competent jurisdiction or the admission of Tenant in an action against Tenant, whether Landlord be a party thereto or not, that Tenant has so violated any such law, statute, ordinance, rule, regulation, or requirement, shall be conclusive of such violation as between Landlord and Tenant.
8. Alterations .
(a) Tenant shall not make or suffer to be made any alterations, additions or improvements (collectively, “Alterations”) in, on or to the Premises or any part thereof without the prior written consent of Landlord, which consent shall not be unreasonably withheld (except if any Alteration(s) would affect the structural integrity or architectural appearance of the Premises.) Any Alterations in, on or to the Premises, except for Tenant’s movable furniture and equipment (whether or not attached to the Premises) shall immediately become Landlord’s property and at the end of the Term, shall remain on the Premises without compensation to Tenant. In the event Landlord consents to the making of any Alterations by Tenant, the same shall be made by Tenant, at Tenant’s sole cost and expense, in accordance with plans and specifications approved by Landlord, and any contractor or person selected by Tenant to make the same must be first approved in writing by Landlord. Tenant shall give to Landlord at least five (5) business days prior notice of commencement of any construction on the Premises. Tenant agrees and acknowledges that Tenant is not the agent for Landlord for any purpose, including, without limitation, contracting with third parties for improvements to the Premises. Tenant agrees that any construction contract related to the Premises executed by Tenant shall contain a provision stating that Tenant is not the agent for Landlord for any purpose, including, without limitation, contracting with third parties for improvements to the Premises. Tenant agrees that any party providing construction services or materials to the Premises shall execute a waiver of such party’s right to file a mechanic’s lien against the Landlord’s interest in the Premises and Tenant shall deliver such waiver to Landlord prior to permitting such party to begin work on the Premises.
(b) As soon as reasonably possible after execution of this Lease, Landlord agrees to erect a security fence to enclose and secure the area containing the generator as more particularly described on Exhibit C attached hereto and incorporated herein by reference. Such security fence shall be comparable to the existing security fencing at the Premises.
(c) During the Term, Tenant shall have the option to install, at Tenant’s expense, an additional back-up generator to the Premises without Landlord’s consent.
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(a) Tenant shall take good care of the Premises and, at Tenant’s cost and expense, shall make all repairs and replacements as and when Landlord deems necessary to preserve the Premises in good working order and condition, except that Tenant shall not be required to make any structural repairs or structural replacements unless necessitated or occasioned by the acts, omissions or negligence of Tenant or any person claiming through or under Tenant, or any of their servants, employees, contractors, agents, visitors, or licensees, or by the use or occupancy or manner of use or occupancy of the Premises by Tenant or any such person. Notwithstanding the foregoing, Landlord shall repair and maintain the structure (except as provided above), locks, doors, roof, structural walls, windows, roof-mounted HVAC systems, and plumbing system. Landlord shall also provide groundskeeping services, maintain any landscaping, and provide a security patrol from approximately 6-9 p.m each evening. Landlord shall not be liable for and, except as provided in Paragraph 22, there shall be no abatement of Rent with respect to, any injury or interference with Tenant’s business arising from any repairs, maintenance, alteration or improvement in or to any portion of the Building, including the Premises, or in or to the fixtures, appurtenances and equipment therein except that Tenant shall be entitled to a rental abatement for any portion of the Premises which becomes substantially unusable during such repair, maintenance, alterations or improvements. Notwithstanding the foregoing sentence, Landlord shall be liable (to the extent such liability is not covered by insurance) with respect to interference with Tenant’s business for which Landlord’s action is the direct, material and proximate cause of Tenant’s inability to provide substantial and customary service to its customers.
(b) All repairs and replacements required to be made by Tenant or any person claiming through or under Tenant shall be made and performed (a) at Tenant’s cost and expense and at such time and in such manner as Landlord may reasonably designate, (b) by contractors or mechanics approved by Landlord in its reasonable discretion, (c) so that same shall be at least equal in quality, value, and utility to the original work or installation, and (d) in accordance with the Rules and Regulations for the Building reasonably adopted by Landlord from time to time and in accordance with all applicable laws and regulations of governmental authorities having jurisdiction over the Premises.
10. Liens.
Tenant shall keep the Premises free from any liens arising out of any work performed, material furnished or obligations incurred by Tenant. In the event that Tenant does not, within forty-five (45) days following the imposition of any such lien, cause the same to be released of record by payment or posting of a proper bond and providing Landlord with notarized lien waivers, Landlord shall have, in addition to all other remedies provided herein and by law, the right, but not the obligation, to cause the same to be released by such means as it shall deem proper, including payment of the claim giving rise to such lien. All such sums paid by Landlord and all reasonable expenses incurred by it in connection therewith shall be considered Additional Charges and shall be payable to it by Tenant on demand with interest at the maximum rate permitted by law; such sums not paid by Tenant as billed shall constitute a default under the terms provided herein. Landlord shall have the right at all times to post and keep posted on the Premises any notices permitted or required by law, or which Landlord shall deem proper, for the protection of Landlord, the Premises, the Building and any other party having an interest therein.
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(a) Except as set forth below Tenant shall not directly or indirectly, voluntarily or by operation of law, sell, assign, encumber, pledge or otherwise transfer or hypothecate all or any portion of its interest or rights with respect to the Premises or Tenant’s leasehold estate hereunder (collectively, “Assignment”), or permit all or any portion of the Premises to be occupied by anyone other than Tenant or sublet all or any portion of the Premises or transfer a portion of its interest in or rights with respect to Tenant’s Leasehold estate hereunder (collectively, “Sublease”) or any portion thereof without Landlord’s prior written consent in each instance, which consent may not be unreasonably withheld, conditioned, or delayed. Notwithstanding anything contained herein to the contrary, Tenant may, without obtaining the consent of Landlord, assign, sublet or transfer this Lease or any interest therein, to any Affiliate, as hereinafter defined, of Tenant; provided, however, that in the event of such assignment, subletting, or transfer, Tenant shall remain liable for its obligations under this Lease. Tenant shall provide a notice of any such assignment. An “Affiliate” shall mean any corporation which, directly or indirectly, controls or is controlled by, or is under common control with, Tenant. For this purpose, “control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction or the management and policies of such corporation, whether through the ownership of voting securities, or by contract or otherwise. Additionally, for purposes of this Lease, the following transactions relating to Tenant shall not be considered an Assignment of this Lease and shall not give rise to any requirement of approval or consent by any party to this Lease, nor, result in any right to terminate or alter this Lease; any merger (including, without limitation, a reincorporation merger), consolidation, reorganization, stock exchange, sale of stock or substantially all of the assets or other similar or related transaction in which Tenant is the surviving entity or, if Tenant is not the surviving entity, the surviving entity continues to conduct the business conducted by Tenant prior to consummation of the transaction; and the resulting company shall have financial worth equal to or greater than Tenant.
(b) Except in the case of transactions not considered Assignments as provided above, if Tenant desires at anytime to enter into an Assignment of this Lease or a sublease of the Premises or any portion thereof, it shall first give written notice to Landlord of its desire to do so, which notice shall contain (a) the name of the proposed assignee, subtenant or occupant, (b) the nature of the proposed assignee’s, subtenant’s, or occupant’s business to be carried on in the Premises, (c) the terms and provisions of the proposed Assignment or Sublease, and (d) such financial information as Landlord may reasonably request concerning the proposed assignee, subtenant or occupant.
(c) Except in the case of transactions not considered Assignments as provided above, at any time within thirty (30) days after Landlord’s receipt of the notice specified in Paragraph 11(b), Landlord may by written notice to Tenant elect to (i) Sublease itself the portion of the Premises specified in Tenant’s notice or any portion thereof, (ii) take an Assignment of Tenant’s leasehold estate specified in Tenant’s notice, with a proportionate abatement in Rent and Additional Charges, (iii) terminate this lease as to the portion (including all) of the Premises that is specified in Tenant’s notice, with a proportionate abatement in Rent and Additional Charges, (iv) consent to the Sublease or Assignment, (v) disapprove the Sublease or Assignment subject to the limitations set forth in Section 11(a) above. As a condition for granting its consent to any Assignment or Sublease, however, Landlord may require that Tenant pay Landlord the amount by which all sums payable to Tenant in connection with such Assignment or Sublease exceed the Rent and Additional Charges hereunder (or a proportionate amount thereof representing the portion of the Premises subject to a sublease). In the event Landlord elects to Sublease or take an Assignment from Tenant as described in clauses (i) and (ii) above, the rent payable by Landlord shall be the lower of that set forth in Tenant’s notice or the Rent payable by Tenant under this Lease at the time of the Assignment or Sublease (or a proportionate amount thereof representing the portion of the premises subject to the
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Sublease or Assignment if less than the entire Premises). In the event Landlord elects any of the options set forth in clauses (i), (ii), or (iii) above, with respect to a portion of the Premises, Tenant shall at all times provide reasonable and appropriate access to such portion of the Premises and use of any common facilities, and Landlord shall have the right to use such portion of the Premises for any legal purpose in its sole discretion and the right to further assign or sublease the portion of the Premises subject to Landlord’s election without the consent of Tenant. If Landlord consents to the Sublease or Assignment within said thirty (30) day period, Tenant may thereafter within one hundred twenty (120) days after Landlord’s consent, but not later than the expiration of said one hundred twenty (120) days, enter into such Assignment of the Premises or Sublease of the Premises or portion thereof, upon the terms and conditions set forth in the notice furnished by Tenant to Landlord pursuant to Paragraph 11(b).
(d) No consent by Landlord to any Assignment or Sublease by Tenant shall relieve Tenant of any obligation to be performed by Tenant under this Lease, whether arising before or after the Assignment or Sublease. The consent by Landlord to any other Assignment or Sublease shall not relieve Tenant from the obligation to obtain Landlord’s express written consent to any other Assignment or Sublease. Any Assignment or Sublease that is not in compliance with this Paragraph 11 shall be void. The provisions of this subsection (d) shall not apply to any transaction not considered an Assignment as provided in subsection (a) above.
(e) Each assignee, sublessee or other transferee, other than Landlord, shall assume, as provided in this Paragraph 11(e), all obligations of Tenant under this Lease and shall be and remain liable jointly and severally with Tenant (except that in the case of transactions not considered Assignments as provided in subsection (a) above Tenant shall not remain liable) for the payment of Rent and Additional Charges, and for the performance of all the terms, covenants, conditions and agreements herein contained on Tenant’s part to be performed for the Term; provided, however, that the assignee, sublessee, mortgagee, pledgee or other transferee shall be liable to the Landlord for Rent and Additional Charges only in the amount set forth in or contemplated by the Assignment or Sublease. No Assignment shall be binding on Landlord unless the assignee or Tenant shall deliver to Landlord a counter part of the Assignment and an instrument in recordable form that contains a covenant of assumption by the assignee satisfactory in substance and form to Landlord, consistent with the requirements of this Paragraph 11(e), but the failure or refusal of the assignee to execute such instrument of assumption shall not release or discharge the assignee from its liability as set forth above.
(f) Notwithstanding any other provision in this Section 11, Landlord agrees that Tenant shall have the right to use the Premises in the normal course of Tenant’s business to provide services to third parties and to permit such third parties and/or such parties’ equipment to occupy a portion of the Premises. Such transactions shall not be considered “subleases” or “assignments” for the purposes of this Section 11.
12. Insurance and Indemnification
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