Exhibit 10.15
LEASE AGREEMENT FOR CROSSROAD COMMONS
THIS LEASE AGREEMENT made and entered into this 25th day of November, 1996,
by and between Lincoln Investment Management, Inc. as attorney in fact for The
Lincoln National Life Insurance Company (referred to as "Landlord"), and
Celerity Systems, Inc. (referred to as "Tenant");
WITNESSETH:
ARTICLE I: PREMISES
1.1 Description: Landlord hereby leases to Tenant, and Tenant leases and
accepts, subject to the terms and conditions of this Lease, office suite numbers
101, 400, 500, and 604 in Crossroad Commons, an office complex located at ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (the "Premises") outlined in red on
the Building Plan attached hereto as Exhibit A and incorporated herein. The
Landlord has constructed the building (the "Building") in which the Premises are
located generally in accordance with the site plan attached hereto as Exhibit B.
The Premises will consist of 11,133 square feet as determined by measurement by
the exterior of exterior walls and the centerline of common walls.
1.2 Exception and Reservation: Landlord reserves and excepts from the
Premises the roof and structural portions of exterior and interior walls of the
Building of which the Premises are a part, and further reserves the right to
construct additions to the Building and the right in, over and upon the Premises
as may be reasonably necessary or desirable for the servicing of the Premises or
of other portions of the Building, including the right to install, maintain,
use, repair and replace pipes, ductwork, conduits, utility lines, and wires
through hung ceiling space, column space, and partitions in or beneath the floor
slab or about or below the Premises or other parts of the Building.
1.3 Definitions:
(a) The term "Complex" herein shall be deemed to mean the entire
proposed development including any and all proposed structures (whether
reflected on Exhibit A or Exhibit B or hereafter incorporated in the Complex
during the Lease term or any extension thereof), parking facilities, common
facilities, and the like to be built on the property shown on Exhibit E attached
hereto, as the same may from time to time be reduced, or as the same may from
time to time be increased by the addition of other land, together with
structures and the like thereon which may from time to time be included by
Landlord in the development.
(b) The term "Common Areas" herein shall include parking areas,
driveways, entrances and exits thereto, service roads and loading facilities,
sidewalks, ramps, landscaped areas, exterior stairways, and all other areas
constructed or to be constructed for use in common by Tenant, other tenants
and/or owners of units in the Complex and their agents, employees and business
invitees, subject, however, to the terms of this Lease and reasonable rules and
regulations prescribed from time to time by the Landlord.
ARTICLE II: TERM
2.1 Base Term: The original term of this Lease shall be for a period of
three (3) years (the "Base Term") from the "Commencement Date" hereafter
provided unless sooner terminated hereunder. Said term, and Tenant's obligation
to pay rent, shall commence on the date the Premises are delivered to Tenant or
May 1, 1997, whichever occurs later. In the event the Commencement Date above
does not occur on the first day of the month then the Base Term shall commence
on the first day of the month next succeeding. However, Tenant shall pay rent
for the fractional month on a per diem basis (calculated on the basis of a
thirty day month) until the first business day of the month when the Base Term
commences, and thereafter the rent shall be paid in equal monthly installments
in advance on the first business day of each month.
The word "term" or "lease term" herein shall include any time between the
Commencement Date and the beginning of the Base Term and any applicable renewal
periods.
2.2 Intentionally Omitted.
2.3 Prior Installation: Tenant, prior to the commencement of the Base
Term, with the prior express consent of Landlord, may be permitted to install
fixtures and equipment. Any work done by Tenant prior to completion of the
Premises shall be done in a good and workmanlike manner and in a manner that
will not interfere with the progress of the work by Landlord in completing
construction for any aspect of the Complex or the Building, and Landlord shall
have no liability or responsibility for the loss of, or any damage to fixtures,
equipment or other property of Tenant so installed or placed on the Premises.
1
ARTICLE III: RENT AND OTHER TENANT CONTRIBUTIONS
3.1 Annual Minimum Rent: Tenant shall pay to Landlord as annual minimum
rent for the Premises during lease year one the sum of one hundred sixteen
thousand eight hundred ninety-six and 50/100 dollars ($116,896.50)*, to be paid
in equal monthly installments of nine thousand seven hundred forty-one and
38/100 dollars ((9,741.38), and during lease year two the sum of one hundred
twenty-two thousand four hundred sixty-three and 00/100 dollars ($122,463.00)*,
to be paid in equal monthly installments of ten thousand two hundred five and
25/100 dollars ($10,205.25), and during lease year three the sum of one hundred
twenty-eight thousand twenty-nine and 50/100 dollars ($128,029.50)*, to be paid
in equal monthly installments of ten thousand six hundred sixty-nine and 13/100
dollars ($10,669.13), to be paid in advance on the first business day of each
month at the address for Landlord as hereafter provided, or at such other places
Landlord may designate from time to time. Such rent shall be paid without
demand, set-off or deduction. Notwithstanding, if the actual square footage
differs from the estimated square footage set forth in paragraph 1.1, said rent
shall be adjusted to reflect annual minimum rent of $10.50 per square foot for
the first year, $11.00 per square foot for the second year and $11.50 per square
foot for the third year of the lease term.
*Relinquishment of suite 101 will reduce the annual rent according to the time
of exercise. If the suite 101 is relinquished, the corresponding rent reduction
will be as follows:
a) $946.75 per month if during lease year one
b) $991.83 per month if during lease year two
c) $1,036.92 per month, if during lease year three.
3.2 Lease Year: The term "Lease Year" shall mean the twelve (12) month
period beginning on the first day of the Base Term and terminating on the last
day of the month at the end of such twelve month period, and so on thereafter
during the Base Term or any renewal periods. The first lease Year shall also
include the first partial month.
3.3 Late Charges and Interest: Any amounts not paid when due shall bear
interest from the due date thereof until the date of payment at the lesser of
eighteen (18%) per annum or the highest rate allowed by law.
3.4 Security Deposit. As security for the prompt and punctual
performance of all obligations required to be performed hereunder by Tenant,
Tenant has deposited with Landlord the sum of $9,000.00 (the "Security
Deposit"). In the event of any default hereunder by Tenant, Landlord may
utilize the Security Deposit to offset either in whole or in part any
obligations of Tenant hereunder. In such event, Tenant shall immediately
restore the Security Deposit original amount. In the event Tenant does not
default hereunder, the Security Deposit shall be returned to Tenant at the
expiration of the lease term, without any interest thereon; however, Tenant
expressly acknowledges that Tenant will not hold any lender of Landlord liable
for the return of all or any part of the Security Deposit unless the Security
Deposit is escrowed with such lender.
3.5 Returned Checks: If any check or bank draft tendered by Tenant to
Landlord shall be returned by a bank for insufficient funds, Landlord may assess
a penalty in the amount of seventy-five and 00/100 dollars ($75.00) for each
such check against the Tenant. Such penalty shall be deemed to be additional
rent and subject to all conditions hereof relating to the payment or nonpayment
of rent. If two or more such checks or drafts of the Tenant are so returned,
then all rent and other amounts and charges to be paid to Landlord by Tenant as
provided in this Lease shall thereafter be paid to the Landlord by cashier's or
certified check.
ARTICLE IV: ADDITIONAL EXPENSES AND CHARGES
4.1 Common Area Maintenance: Landlord shall maintain the Common Areas
of the Complex in a commercially reasonable manner and condition. Landlord's
"Common Area maintenance expenses" of the complex shall include, without
limitation, the costs of managing and upkeep of all Common Areas and the
Complex, specifically including any expenses which Landlord may elect to incur
for landscaping and grounds keeping; the maintenance, repairing, replacing,
sweeping and striping of the parking lot; all Landlord's insurance on the entire
Complex (including, but not limited to, public liability, fire, casualty, loss
of rents, and extended coverage insurance); security, sanitary control; snow
removal; trash and rubbish removal; Common Area lighting, maintenance and repair
of sprinkler systems; maintenance and repair of heating, ventilation and air
conditioning and other electrical systems serving the Complex or the various
premises therein; the cost of supplies, equipment and personnel to implement
such services; amortization of capital expenditures which relate to repair and
maintenance of the Common Areas; amortization of capital expenditures required
in the future by any regulatory or governmental agency; all other costs and
expenses
2
which would, under generally accepted accounting principles, be regarded as
maintenance or repair costs of the Complex.
4.2 Taxes and Assessments: Landlord shall pay the annual taxes and
assessments assessed by the County, City and/or other governmental authorities
for the land and improvements constituting the Complex ("Taxes"). In the event
any tax shall be assessed upon rent received by Landlord by any governmental
authority, said tax shall be deemed to be property Taxes. In the event Landlord
shall elect to contest the amount of such Taxes, all expenses incurred in such
contest, including reasonable attorneys' or appraisers' fees, shall be
considered Taxes under the terms of this Article. In the event the method of
taxation applicable to rental property shall be modified, a modification
agreement with respect to this Article shall be executed by Landlord and Tenant
to equitably apply to said revised tax system.
4.3 Utilities: Landlord shall pay for Tenant's electric current, gas,
sewer, heat, air conditioning, water and other utilities as may be supplied and
taxes or charges on such utility services ("Utilities"). Notwithstanding,
Landlord shall be obligated to pay for only such Utilities as are reasonably
necessary for ordinary office operations. Any Utilities necessary for other
uses of the Premises or that are in excess of ordinary office requirements shall
be subject to negotiation between the parties, with Tenant to bear any
additional expense therefor. In no event shall Landlord be liable for any
interruption or failure in the supply of any Utilities to the Premises, however,
if for any reason Landlord does not provide any or all of these services for
more than five (5) consecutive days (unless beyond control of Landlord)
following written notification from Tenant, the monthly rent will be reduced
proportionately (per day basis on 30 day month) from the date the interruption
in services began.
4.4 Janitorial and Cleaning Services: Landlord will furnish the
Premises with restroom supplies, window washing with reasonable frequency and
cleaning service on weekdays (excluding holidays and weekends) as set forth on
Exhibit D ("Janitorial Services").
4.5 Tenant's Share of Additional Expenses and Charges: To the extent
that the sum of Tenant's pro rata share of the Common Area maintenance charges,
Taxes, Utilities and Janitorial Services exceed $4.00 per square foot of the
Premises on an annual basis, Tenant shall reimburse Landlord for said excess
charges. Tenant's pro rata share of the Common Area maintenance charges, Taxes,
Utilities and Janitorial Services shall be calculated and based upon the ratio
which the square footage of Tenant's Premises bears to the square footage of the
net leasable space in the Complex. Within ninety (90) days after the expiration
of each calendar year, Landlord shall forward to Tenant a statement showing
Tenant's pro rata share of the Common Area maintenance charges, Taxes,
Janitorial Services and Utilities should said expenses exceed the amount set
forth above. In that event Tenant shall remit to Landlord any amount owed
within thirty (30) days after the date of Landlord's statement.
4.6 Right to Terminate Service: In addition to any other remedies
available to Landlord under this Lease, in the event of any default by Tenant
under this Lease, Landlord shall be allowed to immediately cease providing or
paying for any or all of the services provided for herein, however, Tenant shall
be allowed to correct any default within a reasonable time prior to Landlord
discontinuing providing utilities.
ARTICLE V: USE OF PREMISES
5.1 Tenant's Use: The Premises shall be used and occupied by Tenant
solely as office space for Tenant's current business, which is computer systems
integrator sales, and for no other purpose without Landlord's prior written
consent. Tenant shall comply with all rules, regulations and laws of any
governmental authority with respect to use and occupancy of the Premises.
Tenant shall comply with all rules and regulations including but not limited to
Exhibit C attached hereto, and laws of any governmental authority with respect
to use and occupancy of the Premises.
5.2 Signs: Tenant shall not place on any exterior door, wall or window
of the Premises or anywhere else on the exterior of the Premises or within the
Complex any sign or advertising matters without first obtaining Landlord's
written approval and consent. Tenant agrees to maintain such sign or
advertising matter as approved by Landlord in good condition and repair. All
signs shall comply with applicable ordinances or other governmental
restrictions, and the determination of such requirements, the obtaining of sign
permits and the prompt compliance therewith shall be the responsibility of the
Tenant.
ARTICLE VI: CONSTRUCTION, MAINTENANCE AND REPAIRS
6.1 Intentionally omitted.
6.2 Tenant Construction: Tenant shall provide, at its expense, all
equipment, furniture and fixtures to be used in the Premises and shall do all
construction work relating to Tenant's use of the Premises
3
except to the extent that Landlord has expressly agreed to perform the same
pursuant to Exhibit C attached hereto. Any deviations requested by Tenant to
work set forth in Exhibit C shall be subject to Landlord's consent and Tenant
shall be required to pay any additional costs or expenses caused by any such
deviations. Tenant shall provide Landlord with plans and specifications for its
intended construction work thirty (30) days prior to the commencement of any
such construction. Such plans and specifications shall be subject to Landlord's
written consent. Tenant shall be required to obtain any governmental approvals
necessary for its construction, and shall comply with any applicable building
codes or other governmental requirements or regulations.
6.3 Tenant's Duty to Repair: Upon any intentional act or negligence of
Tenant, Tenant shall be required to repair (including any such replacement and
restoration as is required for that purpose) the Premises and every part thereof
and any and all appurtenance thereto where located, including, without
limitation, the exterior and interior portion of all doors, windows, plate
glass, and Building front; all plumbing and sewage facilities within or without
the Premises up to a common line; fixtures; interior walls; floors; ceilings;
and all installations made by Tenant under the terms of this Lease and any
exhibits hereto, otherwise Landlord to do repairs subject to Section 4.5
limitations. Landlord shall also make any repairs required to be made in the
Premises due to burglary of the Premises or other illegal entry into the
Premises. Any cost due to damage to the Premises caused by a strike involving
the Tenant or its employees shall be borne by Tenant.
Except for the Janitorial Services to be provided by Landlord specified
herein, Tenant shall keep and maintain the Premises in a clean, sanitary and
safe condition and in accordance with all directives, rules and regulations of
propr officials of any government agencies having jurisdiction, at the sole cost
and expense of Tenant, and Tenant shall comply with all requirements of law, by
statute, ordinance or otherwise, affecting the Premises and all appurtenances
thereto. if Tenant refuses or neglects to commence and to complete repairs and
maintenance promptly and adequately, Landlord may, but shall not be so required,
make and complete said repairs and maintenance and Tenant shall pay the cost
thereof to Landlord as additional rent upon demand. Tenant shall allow no
nuisance to exist with respect to the Premises.
6.4 Surrender of Premises: At the termination of this Lease, the Tenant
agrees to deliver the Premises in the same condition as received by it on the
Commencement Date (subject to the removals hereinafter required), reasonable
wear and tear excepted, and shall surrender all keys for the Premises to
landlord at the place then fixed for the payment of rent and shall inform
Landlord of the combinations to all combination locks, safes and vaults, if any,
in the Premises. Tenant, during the last thirty (30) days of the term of this
Lease, shall remove all its trade fixtures and, to the extent required by
Landlord by written notice, any other installations, alterations or
improvements, before surrendering the Premises as aforesaid and shall repair any
damage to the Premises caused by removal of such items. Tenant's obligation to
observe or perform this covenant shall survive the expiration or other
termination of the Lease. Any items remaining in the Premises on the
termination date of this Lease shall be deemed abandoned for all purposes and
shall become the property of Landlord and the Landlord may dispose of the same
without liability of any type of nature and at Tenant's expense. Failure to
surrender will subject the Tenant to summary dispossession.
6.5 Landlord's Duty to Repair: Landlord shall keep and maintain the
foundation, exterior walls and roof of the Building in which the Premises are
located and the structural portions of the Premises which were installed by the
Landlord, exclusive of doors, door frames, door checks, windows, plate glass,
and window frames located in exterior or interior building walls, in good
repair; provided, however, that Landlord shall not be called upon to make any
repair occasioned by the act or neglect of Tenant, its agents, employees,
invitees, licensees or contractors. Landlord shall not be required to make any
other improvements or repairs of any kind upon the Premises and appurtenances.
Any repairs required to be made by reason of the negligence of tenant, its
agents, etc., as above described, shall be the responsibility of the Tenant
notwithstanding the provisions above contained in this paragraph.
6.6 Tenant's Alterations: Tenant shall not alter any structural aspects
of the Premises, and shall not install any fixtures or equipment to be used in
connection with tenant's business which affect any structural aspect of the
Premises in any manner, nor alter any aspect of utility service to the Premises,
without first obtaining the written approval of Landlord for such alterations,
fixtures and equipment, and the Landlord's approval of the manner in which said
fixtures and equipment are to be installed and located in the Premises.
6.7 Mechanic's Liens: If Tenant makes any alterations or improvements
in the Premises, Tenant must pay for same when made. Nothing in the Lease shall
be construed to authorize Tenant or any person dealing with or under Tenant, to
charge the rents of the Premises, or the property of which the Premises forma
part, or the interest of Landlord in the estate of the Premises, or any person
under and through whom Landlord has acquired its interest in the estate of the
Premises, with a mechanic's lien or encumbrance of any kind, and under no
circumstances shall Tenant be construed to be the agent, employee or
representative of
4
Landlord in the making of any such alterations or improvements to the Premises,
but, on the contrary, the right or power to charge any lien, claim or
encumbrance of any kind against Landlord's rents or the Premises or the land on
which the Complex has been erected is denied. If a mechanic's or materialmen's
lien is threatened by any contractor or supplier, or in the event of the filing
of a notice of any such lien, Tenant will promptly pay same or take steps to
have the lien discharged of record, by bond or otherwise. If same is not
removed within ten (10) days from the date of written notice from Landlord,
Landlord shall have the right at Landlord's option of paying the same, or any
portion thereof and the amounts so paid, including permitted by law on any sums
paid or advanced shall be deemed to be additional rent due from Tenant to
Landlord immediately upon delivery to Tenant of a statement therefor. Tenant
shall indemnify and save harmless Landlord from and against all loss, claims,
damages, costs or expenses suffered by landlord by reason of any repairs,
installations or improvements, made by Tenant, including reasonable attorney's
fees of the Landlord.
6.8 Roof of Premises: Tenant shall not go upon or allow any person or
thing to go upon any portion of the roof of the Building without Landlord's
prior written consent. Tenant will be responsible for any damage incurred by
Landlord, specifically including but not limited to any damage or loss caused by
a violation of any roof warranty provision, caused by any unauthorized going
upon the roof by Tenant or persons or things within Tenant's control. Tenant
will not in any manner cut or drive nails into or otherwise change, alter, or
mutilate the roof of the Premises, and will be responsible for any damage caused
to the roof of the Complex or the Premises by any acts of the Tenant, its
agents, servants, employees, or contractors.
ARTICLE VII: INSURANCE
7.1 Liability of Tenant: Tenant shall protect, indemnify and save
Landlord harmless from and against any and all liability and expense of any
kind, including reasonable attorney's fees, arising from injuries or damages to
persons or property in, on or about the Premises arising out of or resulting in
any way from any act or omission of Tenant, its agents, servants, and employees.
7.2 Notice of Claim of Suit: Tenant agrees to promptly notify Landlord
of any claim, proceeding, or suit instituted or threatened against the Landlord
if Tenant has the knowledge. In the event Landlord is made a party to any
action for damages against which Tenant has indemnified Landlord, then Tenant
shall pay all costs and shall provide effective counsel in such litigation, or
shall pay, at Landlord's option, the attorney's fees and costs incurred in
connection with said litigation by Landlord.
7.3 Liability Insurance: Tenant agrees to maintain at its expense at
all times during this Lease full general liability insurance properly protecting
and indemnifying Landlord and naming landlord as an additional insured in an
amount not less than $500,000, per person and $1,000,000 per accident for
injuries or damages to persons, and not less than $1,000,000 damage for
destruction of property, written by insurers licensed to do business in the
state in which the Premises are located. Tenant shall deliver to Landlord
certificates of such insurance, which shall declare that any respective insurer
may not cancel the same in whole or in part without giving Landlord written
notice of its intention to do so at least thirty (30) days in advance. All
public liability and property damage insurance policies shall contain a
provision that the Landlord, although named as an insured, shall nevertheless be
entitled to coverage under such policies for any loss occasioned by reason of
negligence or intentional act of the Tenant.
The minimum limits of the comprehensive general liability policies of
insurance shall be subject to increase, from time to time, after the
commencement of the first full year of the Base Term of this Lease if the
Landlord shall deem the same reasonably necessary for adequate protection, based
upon any requirements placed upon the Landlord by third parties or based upon
custom and practice in the industry. Within thirty (30) days after demand by
Landlord, Tenant shall furnish Landlord with evidence of Tenant's compliance
with this paragraph.
7.4 Failure to Procure Insurance: In the event Tenant shall fail to
procure any insurance required in this Lease and fail to maintain the same in
force continuously during the term, Landlord shall be entitled (but not
required) to procure the same and Tenant shall immediately reimburse Landlord
for such premium expense.
7.5 Increase in Fire Insurance Premium: Tenant agrees not to keep upon
the Premises any articles or goods which may be prohibited by the applicable
standard from insurance policy. In the event the insurance rates applicable to
fire and extended coverage insurance covering the Premises shall be increased by
reason of any use (or vacancy) of the Premises made by the Tenant, then Tenant
shall pay to landlord such increase in insurance premiums as shall be occasioned
by said use.
7.6 Property of Tenant: Tenant agrees that all property owned by it in,
on or about the Premises shall be at the sole risk and hazard of the Tenant, and
Tenant agrees to keep such property insured to its full replacement value.
Landlord shall not be liable or responsible for any loss of or damage to Tenant,
or anyone
5
claiming under or through Tenant, or otherwise, whether or not caused by or
resulting from a peril required to be insured hereunder, or by water, steam,
gas, leakage (whether from the roof, pipe or other sources), plumbing,
electricity or electrical apparatus, pipe or apparatus of any kind, the elements
or other similar causes, and whether or not originating in the Premises or
elsewhere, irrespective of whether or not Landlord may be deemed to have been
negligent with respect thereto, provided such damage or loss is not the result
of an intentional and willful wrongful act of Landlord.
7.7 Mutual Waiver of Subrogation: Landlord shall not be liable for any
insurable damages to fixtures, records, or other property of Tenant or its
customers regardless of cause and Tenant hereby releases Landlord from the same,
and Tenant shall require all policies of insurance carried by it on its property
in, on, or about the Premises to contain or be endorsed with a provision by
which the insurer shall waive its right of subrogation against Landlord. Tenant
shall not be liable for any insured damage to the Premises or the Building of
which the Premises are a part regardless of cause, and Landlord hereby releases
Tenant from the same to the extent insurance proceeds are available; provided,
however, it is a condition precedent to this release of Tenant that the Tenant's
insurance obligations set forth in the Lease are strictly complied with in each
instance, and the Tenant's failure to comply shall be deemed to negate this
release of Tenant. Further, these mutual releases shall be applicable and in
force only with respect to loss or damage covered by the releasing party's
applicable insurance policies contain a clause or endorsement to the effect that
any such release shall not adversely affect or impair such policy or the right
of the releasing party to recover thereunder.
ARTICLE VIII: FIRE AND OTHER CASUALTY
8.1 Partial Destruction: In the event of the partial destruction of the
Premises by fire or any other casualty, Landlord shall restore or repair said
Premises with reasonable diligence. Landlord shall expend such sums as required
to repair or restore the Premises to their condition immediately prior to the
date of the destruction. Notwithstanding, Landlord shall not be obligated to
expend any sums in excess of the insurance proceeds received by Landlord as a
result of such damage or destruction. A just and proportionate part of the rent
payable by Tenant to the extent that such damage or destruction renders the
Premises untenable shall ▇▇▇▇▇ from the date of such damage or destruction until
such Premises are repaired or restored.
8.2 Substantial Destruction: If the Premises shall be so damaged by
fire or other casualty or happening as to be substantially destroyed, then
Landlord shall have the option to terminate this Lease by giving Tenant written
notice within ninety (90) days after such destruction, and any unearned rent
shall be apportioned and returned to Tenant. If Landlord does not elect to
cancel this Lease as aforesaid, then the same shall remain in full force and
effect and Landlord shall proceed with reasonable diligence to repair and
replace the Premises to their condition prior to the date of destruction, and
during the time the Premises are so destroyed and totally untenable, the rent
shall be abated.
8.3 Rights of Landlord's Lender: Notwithstanding anything contained in
this Lease to the contrary, the obligation of the Landlord with respect to
repairing or rebuilding the Premises is subject to the prior right of the
Landlord's lender to receive insurance proceeds as a result of a fire or other
casualty with any obligation of the Landlord to be limited to the extent
insurance proceeds are received by the Landlord for such repair and rebuilding.
8.4 Right of Termination: Notwithstanding anything else to the contrary
in this Lease, Landlord, at its option may terminate this Lease on thirty (30)
days notice to Tenant given within one hundred eighty (180) days after the
occurrence of any one of the following: (i) the Premises and/or the Building in
which the Premises are located shall be damaged or destroyed as a result of an
occurrence that is not fully covered by Landlord's insurance; or (ii) the
Premises and/or the Building shall be damaged or destroyed and the cost to
repair the same shall amount to more than twenty-five percent (25%) of the value
thereof; or (iii) the Premises and/or the Building shall be damaged or destroyed
during the last year of the Base Term or then applicable Renewal Period; or (iv)
the Building or complex is damaged (whether or not the Premises are damaged) to
such an extent that, in the sole judgment of the Landlord, the Complex cannot be
operated as an economically viable unit.
ARTICLE IX: ASSIGNMENT AND SUBLETTING
9.1 Tenant Assignment: Tenant shall not assign, transfer or encumber
this Lease without prior written consent of Landlord and shall not sublet or
allow any other tenant to come in with or under Tenant without like written
consent. Consent of Landlord to one assignment or subletting of the Premises
shall not constitute a waiver of Landlord's right hereunder. In no event shall
Tenant assign or sublet the Premises or any portion thereof for any use which
will violate any exclusive use rights which may have been granted to any other
tenant in the Complex or for any prohibited uses imposed by Landlord's lender or
other tenant lease. Any assignment or subletting, notwithstanding the consent
of the Landlord or Landlord's lender, shall
6
not in any manner release the Tenant herein from its continued liability for the
performance of the provisions of this Lease and any amendments or modifications
hereto. The acceptance of any rental payments by Landlord from any alleged
assignee shall not constitute approval of the assignment of this Lease by the
Landlord.
9.2 Bankruptcy, Etc.: Neither this Lease, nor any interest therein, nor
any estate created hereby, shall pass to any trustee or receiver in bankruptcy,
nor to any other receiver or assignee for the benefit of creditors or otherwise
by operation of law. In the event of the bankruptcy of Tenant, and if the
preceding sentence is unenforceable pursuant to the Bankruptcy Code or other
applicable statute, any and all monies or other considerations payable or
otherwise to be delivered in connection with Lease shall be paid or delivered to
Landlord, shall be remain the exclusive property of the Landlord, and shall not
constitute property of Tenant or of the estate of Tenant within the meaning of
Bankruptcy Code. Any and all monies or other considerations constituting
Landlord's property under the preceding sentence which are not paid or delivered
to Landlord shall be held in trust for the benefit of Landlord and shall be
promptly paid or delivered to landlord. Notwithstanding anything in this Lease,
whether or not expressly denominated as rent, shall constitute rent for the
purposes of the Bankruptcy Code.
In the alternative, but without waiving any of the foregoing, in the event
of Tenant's bankruptcy, whether by the filing of a voluntary or involuntary
petition in bankruptcy, Tenant agrees to reject, assume and/or assign this lease
(provided adequate assurances of future performance are given) within sixty (60)
days of the filing of any such petition, during which time Tenant shall continue
to pay rent as provided in this Lease. Tenant further agrees that from and
after any filing of a voluntary or involuntary petition in bankruptcy, Tenant
will make and keep all payments due hereunder current and agrees that such
payments are administrative expenses under Section 365 of the Bankruptcy Code.
9.3 Notice of Contemplated Assignment: In the event Tenant shall desire
to assign, transfer or sublet the Premises to any other person or entity, or
shall elect to transfer control by a transfer of the beneficial interest in such
entity, then Tenant shall notify landlord in writing of such intention and shall
furnish landlord with any requested information as to the contemplated
successor. Landlord shall have thirty (30) days after receipt of such notice
and supporting data to adopt one of the following alternatives: (a) to approve
the proposed assignment, transfer or subletting (or stock sale or transfer where
applicable), in which case Tenant shall continue to be liable along with the
said assignee or subtenant for the fulfillment of all of Tenant's obligations
for the reminder of the term; or (b) to disapprove the same in which case the
Lease shall continue in full force and effect with Tenant continuing to occupy
the Premises under the terms hereof. In the event of any assignment or
subletting to which Landlord does not expressly and voluntarily consent,
regardless of Landlord's reasons therefore, then in addition to any other rights
hereunder, Landlord may elect to terminate this Lease upon thirty (30) days
notice.
ARTICLE X: DEFAULT AND RE-ENTRY
10. Default and Remedies:
10.1 Events of Default: The occurrence of any of the events described in
Subsections 10.1.1 through 10.1.7, inclusive, of this Section 10.1 shall be and
constitute an Event of Default under this Lease.
10.1.1 Failure by Tenant to pay in full any rental or other
sum payable hereunder within ten (10) business days after written notice.
10.1.2 Default by Tenant in the observance or performance of
any of the terms, covenants, agreements, or conditions contained in this lease,
other than as specified in Subsection 10.1.1, for a period of thirty (30) days
after notice thereof to Tenant by Landlord. If Tenant proceeds to correct any
default within said thirty (30) day period it shall not be considered in default
hereof.
10.1.3 Filing by Tenant of a petition in bankruptcy or a
petition for any other relief under the Bankruptcy Code as amended, or under any
other insolvency act, law, rule or regulation, State or Federal, now or
hereafter existing; the application by or for Tenant of a receiver or trustee of
Tenant, or for all or a substantial part of the property of Tenant; the making
by Tenant of any general assignment for the benefit of creditors of Tenant; the
inability of tenant, or the admission of Tenant of the inability thereof, to pay
the debts of Tenant as such mature; the issuance of attachment, execution or
other similar process against any substantial part of the property of Tenant; or
the insolvency of Tenant.
10.1.4 The desertion, vacation, abandonment of, or failure to
use the Premises as a going business by Tenant for any period exceeding sixty
(60) consecutive days, regardless of whether or not Tenant continues to pay all
stipulated rental.
7
10.1.5 The assignment, subletting or mortgaging of the
Premises without the prior written consent of Landlord.
10.1.6 Any construction, changes or alterations on the
Premises without the prior written consent of Landlord.
10.1.7 Any change in the use of the Premises without the
Landlord's written consent.
10.2 Remedies: Whenever any Event of Default shall have happened,
Landlord may, to the extent permitted by law, take any one or more of the
remedial steps described in Subsections 10.2.1 through 10.2.4, inclusive, of
this Section 10.2.
10.2.1 Landlord may, at its option, declare all installments
of minimum rent for the remainder of the Lease term to be immediately due and
payable, whereupon the same shall become immediately due and payable.
10.2.2 Landlord may re-enter and take possession of the
Premises and improvements with or without terminating this Lease, and sublease
in their entirety the same for the account of Tenant, holding Tenant liable for
the difference in the rent and other amounts actually paid by such sublessee in
such subletting and the rents and other amounts payable by Tenant hereunder.
10.2.3 Landlord may terminate the Lease, exclude Tenant from
possession of the Premises and improvements and use reasonable efforts to lease
the same for the account of Tenant, holding Tenant liable for all rent and other
amounts payable by Tenant hereunder and all other damages, costs and/or losses
incurred by Landlord due to Tenant's default.
10.2.4 Landlord may take whatever action at law or in equity
as may appear necessary or desirable to collect the rent and other amounts then
due and thereafter to become due or to enforce the performance and observance of
any obligations, agreement, or covenant of Tenant under this Lease, and in
connection with such actions to recover any or all damages to Landlord for
Tenant's violation or breach of this Lease.
10.2.5 In the event that three (3) Events of Default by Tenant
occur under this Lease during any three hundred sixty-five (365) day period,
whether or not cured by Tenant, Tenant shall be deemed to be in "Chronic
Default". If Tenant is in "Chronic Default", Tenant shall no longer be entitled
to any notice or opportunity to cure with regard to any Events of Default
occurring thereafter and Landlord shall be entitled to all remedies available at
its option at any time thereafter.
10.3 Amounts Due Upon Default: Upon default by the Tenant, whether this
Lease is terminated or not, all rents shall, at the option of the landlord,
become due and payable. In the event of default by the Tenant, Landlord shall
also be entitled to estimate any costs, expenses or charges which may become due
under this Lease, and assess said costs, expenses or charges immediately against
Tenant. Further, all other expenses and charges shall immediately become due
and payable, at the option of the landlord. Further, Tenant shall be liable for
any other costs or expenses incurred by Landlord due to Tenant's default,
including but not limited to costs of making the Premises suitable for a
substitute tenant.
10.4 Application of Funds: If any statute or rule of law shall validly
limit the amount of any final damages described in this Article to less than the
amount determined herein, Landlord shall be entitled to the maximum amount
allowable under such statute or rule of law. In the event Landlord elects to
proceed under the authority of Subsections 10.2.2, 10.2.3, or 10.2.4 of Section
10.2 of this Article, Landlord shall make reasonable effort to collect rentals
from sublessees or new lessees of this entire Premises or portions thereof,
reserving however, at Landlord's sole discretion, the right to determine the
method of collection and the extent to which enforcement of collection of
delinquent rents shall be prosecuted. All rents, and all other income derived
from operation of the improvements by Landlord, to the extent such are not paid
and applied by any sublessee or new lessee of the Premises, may be applied first
to the payment and accrual of taxes; second, to the payment of all sums and
money due and owing from time to time under any mortgage and any other permitted
encumbrance upon the Premises, superior to the interests of Landlord; third, to
the cost of operating the Premises, superior to the interests of Landlord;
third, to the cost of operating the Premises and improvements; fourth, to the
cost of the administration and collection of rents by Landlord; and fifth, to
the payment of rent due and owing Landlord hereunder. Tenant shall be liable to
Landlord for the deficiency, if any, between Tenant's rent and all other charges
hereunder, and that applied by Landlord to said amounts in the manner hereby
authorized. No action taken pursuant to Section 10.2 of this Article (including
repossession of the Premises or termination of the Lease) shall relieve Tenant
from Tenant's obligations for rent and all other charges hereunder which shall
survive any such action, and Landlord may take whatever
8
action by law or in equity as may appear necessary or desirable to collect the
rent and other amounts then due and thereafter to become due and/or to enforce
the performance and observance of any obligation, agreement or covenant of
Tenant hereunder.
10.5 No Remedy Exclusive: No remedy herein conferred upon or reserved to
Landlord is intended to be exclusive of any other available remedy or remedies,
but each and every such remedy shall be cumulative, and shall be in addition to
every other remedy given under this Lease or now or hereafter existing at law or
in equity or by statute. No delay or omission to exercise any right to power
accruing upon any default shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right and power may be exercised
from time to time and as often as may be deemed expedient. In order to entitle
Landlord to exercise any remedy reserved to it in this Article, it shall not be
necessary to give any notice, other than such notice as is herein expressly
required by this Lease.
10.6 Attorney's Fees and Expenses: In the event that it shall be
necessary or desirable for Landlord to engage legal counsel for the enforcement
of any of the terms of this Lease, whether such employment shall require
institution of suit or other legal services required to secure compliance on the
part of Tenant, Tenant shall be responsible for and shall promptly pay to
Landlord the reasonable value of said attorney's fees, and any other expenses
incurred by landlord as a result of such default. In the event of litigation,
and to the extent Tenant prevails against Landlord, then Landlord shall pay to
Tenant the reasonable value of Tenant's attorney fees incurred herein.
ARTICLE XI: COMMON AND PARKING AREAS
11.1 Control of Common Areas: All Common Areas as defined in Article I,
shall at all times be subject to the exclusive control and management of
Landlord, and Landlord shall have the right from time to time to establish,
modify and enforce reasonable rules and regulations with respect to the use of
all such Common Areas and facilities. Landlord shall have the right to operate
and maintain the same in such manner as Landlord, in its sole discretion, shall
determine from time to time, including without limitation the right to employ
all personnel and to make all rules and regulations pertaining to and necessary
for the proper operation and maintenance of said Common Areas and facilities.
No auction, fire or bankruptcy sales may be conducted in the Premises or Common
Areas or without the previous written consent of Landlord. Tenant shall not use
the sidewalks adjacent to the Premises or the open areas outside Tenant's glass
or wall line for business purposes without the previous written consent of
Landlord. Landlord shall have the exclusive right at any and all times to close
any portion of the Common Areas for the purpose of making repairs, change or
addition thereto, and may change the size, area or arrangement of the Common
Areas or the lighting thereof within or adjacent to the existing Common Areas
and may enter into agreements with adjacent owners for cross-easements for
parking, ingress, egress, delivery, and the installation of utility lines,
however, such repairs, changes or additions shall not unreasonably interfere
with Tenant conducting its business in the Premises.
ARTICLE XII: EMINENT DOMAIN
12.1 Partial Taking: If a portion of the Premises shall be taken as
herein provided for public or quasi-public use or improvements or otherwise
under the exercise of the right to eminent domain and the Premises shall
continue to be reasonably suitable for the use which is herein authorized, then
the rental herein provided shall be reduced from the date of such taking in
direct proportion to the reduction in usefulness of the Premises.
12.2 Substantial Taking: If all of the premises, or a part sufficient to
render the Premises wholly unfit for the use herein authorized, or a part
sufficient, in Landlord's judgment, to cause the remaining portion of the
Complex to become uneconomical to operate as a viable unit, shall be condemned
or acquired by grant or otherwise, for public or quasi-public use or
improvements, or shall otherwise be taken in the exercise of the right of
eminent domain, both Tenant and Landlord shall have the right, at either
Tenant's or Landlord's option to terminate and cancel this lease on thirty (30)
days prior written notice, and, under this Article, Tenant shall be liable only
for rents and other charges accrued and earned to the date of surrender of
possession of the Premises to Landlord and for the performance of other
obligations maturing prior to said date.
12.3 Award: Tenant shall not be entitled, and hereby specifically waives
any right arising by statute or otherwise, to participate in or receive any part
of the damages or award which may be paid or awarded by reason of a taking of
the Premises or any other part of the complex under this Article except where
said award shall provide for moving or other reimbursable expenses for the
Tenant under applicable statute.
ARTICLE XIII: GENERAL PROVISIONS
9
13.1 Landlord's Right of Entry: Upon reasonable notice to Tenant
Landlord reserves the right, during normal business hours or by prior
appointment during the term of this Lease for Landlord or Landlord's agents to
enter the Premises for the purpose of inspecting and examining the same, and to
show the same to prospective purchasers or tenants, and to make such repairs,
alterations, improvements or additions as Landlord may deem necessary or
desirable. During the ninety (90) days prior to the expiration of the Base Term
of this Lease or any renewal period, Landlord may exhibit the Premises for sale
or lease, as the case may be, which notices Tenant shall permit to remain
thereon. If Tenant shall not be personally present to open and permit an entry
into the Premises in the event of an emergency, or if Tenant abandons the
Premises, then landlord or Landlord's agents may enter the same by a master key,
or may forcibly enter the same, without rendering Landlord or such agents liable
therefor, and without in any manner contained, however, shall be deemed or
construed to impose upon Landlord any obligation, responsibility or liability
whatsoever for the care, maintenance or repair of the Premises or any part
thereof, except as otherwise herein specifically provided.
13.2 Quiet Enjoyment: Landlord agrees that, if the rent is being paid in
the manner and at the time prescribed and the covenants and obligations of
Tenant are being all and singularly kept, fulfilled and performed, Tenant shall
lawfully and peaceably have, hold, possess, use, occupy, and enjoy the Premises
so long as this Lease remains in force, without hindrance, disturbance and
molestation from Landlord, subject to the specific provisions of this Lease.
13.3 Waiver: Waiver by Landlord of any default, breach or failure of
Tenant under this Lease shall not be construed as a waiver of any subsequent or
different default, breach of failure. In case of a breach by Tenant of any of
the covenants or undertakings of Tenant, Landlord nevertheless may accept from
Tenant any payment or payments hereunder without in any way waiving Landlord's
right to exercise the right of re-entry hereinbefore provided by reason of any
other breach or lapse which was in existence at the time such payment or
payments were actually accepted by Landlord.
13.4 Trade Fixtures: At the expiration of this Lease, provided Tenant is
not in default, Tenant shall have the right to remove any trade fixtures
installed by Tenant on the Premises, and shall repair any damage to the Premises
caused by such removal.
13.5 Subordination: This Lease and Tenant's rights hereunder are and
shall remain subordinate to the lien of any mortgage(s) now or hereafter in
force against the Complex or against any buildings hereafter placed upon the
real estate of which the Premises are a part.
13.6 Notices: All notices by either part to the other shall be made by
depositing such notice in the certified mail of the United States of America,
and such notice shall be deemed to have been served on the date of such
depositing in the certified mail unless otherwise provided. All notices shall
be addressed as follows:
If to Landlord: FMP/Weissco, Inc., Agent for Crossroad Commons
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
If to Tenant: Celerity Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
or at such other address as the parties may from time to time designate in
the manner provided in this paragraph.
13.7 Recording: Tenant, upon request of Landlord, shall join in the
execution of a memorandum of this Lease for the purpose of recordation. Such
memorandum shall describe the parties, the Premises, and the term of this Lease,
and shall incorporate this Lease by reference and include such other portions
which Landlord deems appropriate to effectuate the purpose of such recordation.
Said memorandum may be recorded only by Landlord at Landlord's expense.
13.8 Amendment: All amendments or modifications to this Lease shall be
in writing and executed by the parties or their respective successors in
interest.
13.9 Documentation; Right to Cure: Tenant covenants and agrees to
execute and deliver to Landlord within ten (10) business days from the date of
request such supplemental documents as may be required by any lender of the
Landlord in connection with this Lease, including reasonable subordination,
non-disturbance and attornment agreements, and including estoppel certificates
in such reasonable form as
10
may be required by landlord or said lender, which certificate may include
information as to any modifications of this Lease, dates of commencement of term
and termination date of the lease, and whether or not Landlord is in default
hereunder. Any such certificate may be relied upon by any prospective purchaser
or lessee, or any mortgage, or any prospective assignee of any mortgagee
thereof. If Tenant fails or refuses to furnish such certificate within the time
provided, it will be conclusively presumed that this Lease is in full force and
effect in accordance with its terms and the Landlord is not in default.
Tenant agrees to give lender and/or trust deed holder of the Landlord, by
certified mail, a copy of any notice of default served upon the Landlord,
provided that prior to such notice, Tenant has been notified in writing (by way
of notice of assignment of rents and leases, or otherwise) of the addresses of
such lender and/or trust deed holder. Tenant further agrees that if Landlord
shall have failed to cure such default as required by the terms of this Lease,
then the Lenders and/or trust deed holder shall have the same right to cure any
such default within the time period afforded the Landlord after receipt of
notice; or, if such default cannot be cured within that time, then such
additional time as may be necessary if within such period of time the lender
and/or trust deed holder has commenced and is diligently pursuing the remedies
necessary to cure such default (including, but not limited to, commencement of
foreclosure proceedings if necessary to effect such cure), in which event this
Lease shall not be terminated while such remedies are being so diligently
pursued.
13.10 Holding Over: Any holding over after the expiration of the term
with the consent of Landlord shall be construed to be a tenancy from month to
month at one hundred twenty percent (120%) of the rents and under the terms and
conditions herein specified. Any holder over after the expiration of the term
without the consent of landlord shall be deemed to be a tenancy at will at one
hundred fifty percent (150%) of the rents set forth herein. All obligations of
Tenant under this lease shall survive during any hold-over period.
13.11 No Partnership: It is understood that Landlord does not in any way
or for any purpose become a partner or joint venturer with Tenant in the conduct
of Tenant's business.
13.12 Partial Invalidity: If any term or condition of this Lease or the
application thereof to any person or event shall to any extent be invalid and
unenforceable, the remainder of this Lease and the application of such term,
covenant or condition to persons or events other than those to which it is held
invalid or unenforceable shall not be affected, and each item, covenant and
condition of this Lease shall be valid and be enforced to the fullest extent
permitted by law.
13.13 Successors: The provisions, covenants and conditions of this Lease
shall bind and inure to the benefit of the legal representatives, successors and
assigns of each of the parties, except that no assignment or subletting by
Tenant without the written consent of Landlord shall vest any right in the
assignee or sublessee of Tenant.
13.14 Governing Law: The Lease shall be governed by, and construed in
accordance with, the laws of the State of Tennessee.
13.15 Intentionally deleted.
13.16 Landlord's Exculpatory Clause: The term "Landlord" as used in this
Lease means only the fee simple owner for the time being of the Premises, so
that in event of any sale or sales of such Premises, or assignment, transfer, or
other conveyance of its rights under this Lease, the Landlord, shall be and
hereby is entirely freed from and relieved of all covenants and obligations of
Landlord hereunder.
If the Landlord or any successor in interest or assignee shall be an
individual, joint venturer, tenancy in common, firm or partnership, general or
limited, or corporation, it is specifically understood and agreed that there
shall be no personal liability on such individual or the members of the joint
venture, tenancy in common, firm or partnership, or corporation, with respect to
any of the covenants or conditions of this Lease, and the Tenant shall look
solely to the Landlord's equity in the fee or leasehold estate and the proceeds
thereof, for the satisfaction of the remedies of the Tenant in the event of a
breach by the Landlord of any of the terms, covenants and conditions of this
lease to be performed by the Landlord.
Notwithstanding the provisions of this Section 13.16, Tenant expressly
agrees that any lender of the Landlord shall not be held subject to any
liability or obligation to Tenant under this Lease or otherwise, unless and
until such lender obtains title to the Premises as a result of foreclosure or
otherwise; and, in such event, Landlord's lender shall be subject only to those
liabilities or obligations arising subsequent to the date lender obtains title.
Further, notwithstanding anything to the contrary in this Lease, to the
extent that any obligations of Landlord set forth herein are or have been
assumed by the Association or other entity, pursuant to the Master
11
Deed or otherwise, Landlord shall be relieved of such obligations and the Tenant
shall look solely to the Association or other entity assuming said obligations
for performance thereof.
13.17 Entire Agreement: This Lease, together with the exhibits attached
hereto which are hereby incorporated herein by reference, contains the entire
agreement between Landlord and Tenant with regard to the Premises, and
supersedes all prior and contemporaneous negotiations, understandings and
agreements, written or oral, between the parties.
13.18 This Lease shall be construed as if each provision were drafted by
the equal participation of all parties. No provision shall be construed against
the drafting party regardless of which party drafted such provision. Time is of
the essence in this Lease. The providing of this Lease by Landlord to Tenant
shall not be construed as an option to lease the Premises under the terms set
forth herein and this Lease shall not be binding upon Landlord until it has been
executed by both Landlord and Tenant.
13.19 Consent: Landlord, agrees not to unreasonably withhold its approval
of or consent to any act of Tenant, where such approval or consent is required
by the terms of this lease.
Special Stipulations.
1. Tenant is hereby granted the option to renew this lease for
a 2 year term by notifying Landlord in writing not less than 180 days in advance
of the lease expiration date. The base rent during the renewal period shall be
market rate not to exceed 90% of the highest rate per square foot being received
by Landlord at the time of Tenant's notification of Landlord.
2. This lease shall take precedence over all previous leases
and lease modification agreements between Landlord and Tenant.
3. Landlord agrees to replace the door in the loading area of
suite 400 with a door with a minimum clear opening of 48".
4. Tenant is hereby granted the right to relinquish suite 101,
subject to the provisions of Section 3.1, with 180 days advance written notice
to Landlord.
This page ends here.
12
IN WITNESS WHEREOF the parties hereto have executed this Lease as of the
day and year first above written.
LANDLORD:
Lincoln Investment Management, Inc. as
attorney in fact for The Lincoln
National Life Insurance Company
WITNESS:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------ -------------------------------------
Its Assistant Vice President
-------------------------------------
WITNESS: TENANT: Celerity Systems, Inc.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------ -------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇ Its President
------------------------------ ------------------------------------
13
AMENDMENT TO LEASE
THIS AMENDMENT TO LEASE is made and entered into this 30th day of January, 1997,
by and between BGK Tennessee Office Associates LP as successors to the Lincoln
National Life Insurance Company ("Landlord") and Celerity Systems, Inc.
("Tenant").
R E C I T I A L S:
1. Landlord and Tenant entered into that certain Lease dated November 25,
1996, relating to the Lease by Landlord to Tenant of approximately 11,133
square feet of space (known as Suites 101, 400, 604 and 500) at Crossroad
Commons in Knoxville, Tennessee.
2. The expiration date of the Lease is April 30, 2000.
3. Landlord and Tenant desire to substitute Suites 301 and 302 for Suite 500.
A G R E E M E N T:
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants contained herein, Landlord and Tenant agree as follows:
1. The Lease is hereby amended by substituting Suites 301 and 302 for Suite
500.
2. The Lease is hereby further amended as follows:
The square footage shall be 11,880.
The monthly rent for the Leased Premises shall be:
Year 1 $10,395.00 monthly
Year 2 $10,890.00 monthly
Year 3 $11,385.00 monthly
3. The Lease is hereby further amended to show a commencement date of March 1,
1997 or when Suites 301 and 302 are ready for occupancy, whichever occurs
first.
4. Except as specifically amended above, the Lease and all of its terms and
provisions shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the day
and date first above written.
WITNESS AS TO LANDLORD LANDLORD:
BGK Tennessee Office Associates LP
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ -------------------------------------
WITNESS AS TO TENANT:
/s/ ▇▇▇▇▇▇▇ ▇. Van Meter TENANT:
------------------------------
Celerity Systems, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Vice-President, CFO