Exhibit 10.10
LEASE AGREEMENT
by and between
Signature Center, G.P.
("Landlord")
and
▇▇▇▇▇ Background America, Inc.
("Tenant")
Dated: 4/2/01
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease") is made and entered into as of the
1st day of April 2001, by and between SIGNATURE CENTER, G.P. ("Landlord") and
KROLL BACKGROUND AMERICA, INC. ("Tenant").
W I T N E S S E T H:
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ARTICLE 1. PREMISES
Subject to all of the terms and conditions hereinafter set forth, Landlord
hereby leases to Tenant and Tenant hereby leases from Landlord the premises (the
"Leased Premises"), outlined on Exhibit B to this Lease, containing 14,642.5
square feet of Rentable Area (as hereinafter defined) as suites 101, 103, 400,
and 502 of the five story office building located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ (the "Building"). The land described in Exhibit A to this
Lease and all improvements thereon and appurtenances thereto, including, but not
limited to, the Building, access roadway, and related areas, shall be
collectively hereinafter referred to as the "Building Complex." Upon the
execution and delivery of this Lease, the Existing Lease shall be an be
determined to be null and void and of no further force or effect whatsoever.
ARTICLE 2. TERM AND CONDITION OF LEASED PREMISES
2.1. The term of the Lease (the "Term") shall commence on April 1, 2001
(the "Commencement Date") and end on March 31, 2006 (the "Expiration Date")
unless sooner terminated (the "Termination Date") as hereinafter provided.
Notwithstanding the foregoing, if Landlord's Work (as hereinafter defined) has
not been substantially completed by for any reason other than a delay that is
caused by Tenant, then the Commencement Date shall be postponed until the date
of substantial completion. In that event, the Expiration Date shall be years
after the Commencement Date. Landlord's Work shall be deemed substantially
completed upon the issuance of a certificate of substantial completion by
Landlord's architect or of a temporary or permanent Certificate of Occupancy by
the local building authority, notwithstanding that minor or unsubstantial
details of construction, mechanical adjustment or decoration remains to be
performed. The Commencement Date of this lease and the obligation of Tenant to
pay rent, additional rent and all other charges hereunder shall not be delayed
or postponed by reason of any delay by Tenant in performing changes or
alterations in the premises to be performed by Tenant. In the event the term
shall commence on a day other than the first day of a month, then the rent shall
be immediately paid for such partial month prorated on the basis of a thirty
(30) day month and the term of this Lease shall be extended for the number of
days from the Commencement Date to the first day of the month next succeeding.
2.2. Landlord shall, at its sole cost and expense, perform the
construction work set forth in the plans and specifications annexed hereto as
Exhibit C ("Landlord's Work"). To the extent not specified therein, items or
materials shall be "building standard" (as to both quality and quantity), as
determined by Landlord. Tenant shall pay for any cost incurred as a result of
any change in said plans and specifications, and shall be responsible for any
delays caused by any such change.
Tenant shall give Landlord written notice of any incomplete work,
unsatisfactory conditions or defects in the Leased Premises within thirty (30)
days after the Commencement Date and Landlord shall, at its sole expense,
complete said work and/or remedy such unsatisfactory conditions or defects as
soon as possible. The existence of any incomplete work, unsatisfactory
conditions or defects as aforesaid shall not affect the Commencement Date or the
obligation of Tenant to pay rent, additional rent and all other charges
hereunder,
Tenant represents that Tenant has inspected the Leased Premises and
the Building and is thoroughly acquainted with their condition and takes the
premises "as is," and the taking of possession of the Leased Premises by Tenant
shall be conclusive evidence that the Leased Premises and the Building were in
good and satisfactory condition at the time possession was taken by Tenant.
Neither Landlord nor Landlord's agents have made any representations or promises
with respect to the condition of the Building, the Leased Premises, the land
upon which the Building is constructed, or any other matter or thing affecting
or related to the Building or the Leased Premises, except as herein expressly
set forth, and no rights, easements or licenses are acquired by Tenant by
implication or otherwise except as expressly set forth in this Lease.
ARTICLE 3. USE, NUISANCE, OR HAZARD
3.1. The Leased Premises shall be used and occupied by Tenant solely for
general office purposes and for no other purposes without the prior written
consent of Landlord.
3.2. Tenant shall not use, occupy, or permit the use or occupancy of the
Leased Premises for any purpose which Landlord, in its reasonable discretion,
deems to be illegal, immoral, or dangerous; permit any public or private
nuisance; do or permit any act or thing which may disturb the quiet enjoyment of
any other tenant of the Building Complex; keep any substance or carry on or
permit any operation which might introduce offensive odors or conditions into
other portions of the Building Complex; use any apparatus which might make undue
noise or set up vibrations in or about the Building Complex; permit anything to
be done which would increase the premiums paid by Landlord for fire and extended
coverage insurance on the Building Complex or its contents or cause a
cancellation of any insurance policy covering the Building Complex or any part
thereof or any of its contents; or permit anything to be done which is
prohibited by or which shall in any way conflict with any law, statute,
ordinance, or governmental rule or regulation now or hereinafter in force.
Should Tenant do any of the foregoing without the prior written consent of
Landlord, it shall constitute an Act of Default (as hereinafter defined) and
shall enable Landlord to resort to any of its remedies hereunder.
ARTICLE 4. RENT
4.1. Tenant hereby agrees to pay Landlord a base annual rental (the "Base
Rent") as shown and specified in Exhibit F. The Base Rent shall be due and
payable in advance in twelve (12) equal installments (the "Monthly Rent") in
check or by money order on or before the first day of each calendar month, and
the Monthly Rent for the First Lease Year shall be Twenty-three Thousand One
Hundred Eighty-three Dollars and Ninety-six Cents ($23,183.96) each. The Monthly
Rent for each Lease Year subsequent to the First Lease Year shall be as shown in
Exhibit F. In addition to the Base Rent, Tenant also agrees to pay the Operating
Expenses, Taxes, and any and all other sums of money as shall become due and
payable by Tenant as hereinafter set forth, all of which shall constitute
additional rent under this Lease (the "Additional Rent"). The Monthly Rent and
the Additional Rent are sometimes hereinafter collectively called "Rent" and
shall be paid when due in lawful money of the United States with demand,
deduction, abatement, or offset at such place as is set forth in Article 36 of
this Lease or as Landlord may designate from time to time. Landlord expressly
reserves the right to apply any payment received to Base Rent or any other items
of Rent that are not paid by Tenant.
4.2. In the event any Monthly or Additional Rent or other amount payable
by Tenant hereunder is not paid within five (5) days after its due date, Tenant
shall pay to Landlord a late charge (the "Late Charge"), as Additional Rent, in
an amount of ten percent (10%) of the amount of such late payment. Failure to
pay any Late Charge shall be deemed a Monetary Default (as hereinafter defined).
Provision for the Late Charge shall be in addition to all other rights and
remedies available to Landlord hereunder, at law or in equity, and shall not be
construed as liquidated damages or limiting Landlord's remedies in any manner.
Failure to charge or collect such Late Charge in connection with any one (1) or
more such late payments shall not constitute a waiver of Landlord's right to
charge and collect such Late Charges in connection with any other or similar or
like late payments.
4.3. If the Term commences on a date other than the first day of a
calendar month or expires or terminates on a date other than the last day of a
calendar month, the Rent for any such partial month shall be prorated to the
actual number of days Tenant is in occupancy of the Leased Premises for such
partial month.
4.4. All Rents and any other amount payable by Tenant to Landlord
hereunder, if not paid when due, shall bear interest from the date due until
paid at a rate equal to the prime commercial rate established from time to time
by Capital Bank and Trust, Nashville, Tennessee, plus four percent (4%) per
annum, but not in excess of the maximum legal rate permitted by law. Failure to
charge or collect such interest in connection with any one (1) or more
delinquent payments shall not constitute a waiver of Landlord's right to charge
and collect such interest in connection with any other or similar or like
delinquent payments.
4.5. If Tenant fails to make when due two (2) consecutive payments of
Monthly Rent or makes two (2) consecutive payments of Monthly Rent which are
returned to Landlord by
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Tenant's financial institution for insufficient funds, Landlord may require, by
giving written notice to Tenant, that all future payments of Rent shall be made
in cashier's check or by money order. The foregoing is in addition to any other
remedy of Landlord hereunder, at law or in equity.
ARTICLE 5. RENT ADJUSTMENT
5.1. Tenant shall also pay to Landlord as additional rent hereunder
(hereinafter called "Additional Rent") Tenant s prorata share of all increases
in taxes on and operating expenses of the Building, and of all special
assessments upon the Project, computed as follows:
5.1.1. The net rentable area of the Leased Premises is 14,642.5 square
feet. The-net rentable area of the Building is 49,763 square feet. Thus, the
Leased Premises contain 29.42% percent (hereinafter called "Percentage Share")
of the net rentable area of the Building, and the Tenant s share of increases in
taxes and operating expenses, and of special assessments, hereunder shall be
equal to said Percentage Share thereof. If the net rentable area of the Building
increases or decreases during the Lease Term, the Tenant s Percentage Share
shall decrease or increase proportionately.
5.1.2. For the purposes of this Paragraph, the term "Lease Year" shall
mean the period of twelve (12) months or less, commencing with the Date of
Commencement and ending on December 31 of the calendar year during which the
Date of Commencement occurs, each successive period of twelve (12) months
thereafter during the Lease Term, and the final period of twelve (12) months or
less, commencing on January 1 of the calendar year during which the Lease Term
terminates and extending to the Date of Termination.
5.1.3. In the event that the real estate and/or personal property taxes or
any other taxes (excepting income taxes) payable with respect to the Building,
or imposed upon the Building and/or Landlord in lieu of or in addition to ad
valorem taxes upon the Building, and operating expenses incurred by Landlord
during any Lease Year shall be greater than the Base Year 1999 Operating
Expenses, Tenant shall pay to Landlord, as Additional Rent for the Lease Year in
question, in accordance with Subparagraph (5.1.8) hereof, an amount equal to
Tenant s Percentage Share of such excess.
5.1.4. For the purposes of this Paragraph, the term "Operating Expenses"
shall mean any and all costs and expenses incurred by Landlord with respect to
the Building, including but not limited to costs and expenses for the following:
gross salaries, wages, medical, surgical and general welfare benefits (including
group life insurance), and pension payments for employees engaged in the
operation, maintenance and repair of the Building, payroll taxes, electricity,
gas, oil, water, sewer charges, trash and rubbish removal, heating, lighting,
air conditioning, ventilation, casualty and liability insurance, repairs and
maintenance, building, cleaning and janitorial services and supplies, uniforms
and dry cleaning, window cleaning, landscaping and lawn care, security parking
area operation and maintenance, management fees, service contracts with
independent contractors, telephone, telegraph supplies, stationery, advertising,
and all other expenses paid in connection with the operation, maintenance and
repair of the Building, properly chargeable against income. For the purposes
hereof, "Operating Expenses" shall not include depreciation on the Building,
capital expenses of the Building, debt service or leasing commissions.
5.1.5. Landlord agrees to keep books and records reflecting the operating
expenses of the Building in accordance with a standard method of accounting
recognized and approved for maintaining accounts for properties similar to the
Building. After the end of each Lease Year, Landlord shall deliver to Tenant a
statement of the operating expenses of the Building for said Lease Year and a
computation of any Additional Rental payable by Tenant in accordance with the
provisions of this Lease. For ten (10) days after receipt of such statement,
Tenant, or its authorized agent or representative, or a public accounting firm
selected by it, shall have the right to inspect the books of the Landlord during
normal business hours for the purpose of verifying the information in such
statement. Unless Tenant asserts the existence of a specific error or errors
therein, in writing, within thirty (30) days after such receipt, the statement
shall be deemed to be correct and payable.
5.1.6. Tenant shall also pay to Landlord, as Additional Rent for the Lease
Year during which the same is payable, within fifteen (15) days after receipt by
Tenant of a
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statement therefor from Landlord, an amount equal to Tenant s Percentage share
of any special assessment for public betterments or improvements which may be
levied upon the Building and any interest thereon, which is not deductible from
any condemnation award, or any installment thereof, which is payable during any
such Lease Year. Landlord agrees to take the benefit of any statute or ordinance
which permits the payment of any such assessment in installments, even though
such installments may then bear interest.
5.1.7. If the first Lease Year or the final Lease Year shall contain less
than (12) months, the Additional Rent payable under this Paragraph for any such
Lease Year shall be prorated. Tenant s obligation to pay Additional Rent
hereunder shall survive the termination of the Lease Term.
5.1.8. The Base Rent provided for herein was determined, in part, on the
basis of the costs and expenses of Landlord for operating, maintaining and
repairing the Building. The intent of this Paragraph is to provide that Landlord
shall not suffer loss of net income from rentals of the Building as the result
of inflation or other increases in costs and expenses.
5.2. Any other sums payable by Tenant to Landlord under the terms of this
Lease shall also be deemed to be Additional Rent payable hereunder. Tenant shall
also pay to Landlord, together with each installment of Base Rent, an amount
equal to any gross receipts tax, sales tax or any similar tax (excluding net
income taxes) payable now or in the future by Landlord by reason of its receipt
of Base Rent or Additional Rent hereunder.
ARTICLE 6. SERVICES TO BE PROVIDED BY LANDLORD
6.1. Subject to Articles 5 and 9 herein, Landlord shall pay for and
furnish to Tenant, while occupying the Leased Premises, the following services:
6.1.1. Electrical facilities to furnish sufficient power for lighting in
the Leased Premises, typewriters, voice writers, calculating machines, personal
computers, and other machines of similar low electrical consumption; but not
including electricity required for any other item of electrical equipment which
singly consumes more than 0.5 kilowatts at rated capacity or requires a voltage
other than 120 volts single phase. Tenant shall pay to Landlord monthly, as
billed, such charges as may be separately metered (the cost of such meter and
its installation shall be borne by Tenant) or as Landlord's engineer may compute
for any electrical service in excess of that stated above;
6.1.2. Hot, cold, and refrigerated water at those points of supply
provided for general use of all lessees in the Building;
6.1.3. Janitorial service on a five (5) day week basis at no extra charge
pursuant to Exhibit E. Carpet cleaning, except as provided in normal business
services, shall be performed at Tenant's request and at Tenant's expense;
6.1.4. Air conditioning and heating as reasonably required for comfortable
use and occupancy under ordinary office conditions from 8:00 a.m. to 6:00 p.m.,
Monday through Friday, and 8:00 a.m. to 1:00 p.m., Saturdays; but not on Sundays
or any legal holidays and on any holidays observed by a majority of the Building
lessees from time to time;
6.1.5. Replacement of all standard fluorescent bulbs in all areas and all
incandescent bulbs in public areas, rest room areas, and stairwells. Routine
maintenance and electric lighting service for all public areas of the Building
Complex in a manner and to the extent deemed by Landlord to be standard; and
6.1.6. Security for the Building Complex as may be deemed necessary by
Landlord. Landlord shall not be liable to Tenant for losses due to theft,
burglary, or damages done by unauthorized persons on the Building Complex.
6.2. Landlord shall not be liable for any loss or damage arising or
alleged to arise in connection with the failure, stoppage, or interruption of
any such services; nor shall the same be construed as an eviction of Tenant,
work an abatement of Rent, entitle Tenant to any reduction in Rent, or relieve
Tenant from the operation of any covenant or condition herein contained. It
being further agreed that Landlord reserves the right to discontinue temporarily
such services or
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any of them at such times as may be necessary by reason of repair or capital
improvements performed within the Building Complex, accident, unavailability of
employees, repairs, alterations, or improvements, or whenever by reason of
strikes, lockouts, riots, acts of God, or any other happening or occurrence
beyond the reasonable control of Landlord. In the event of any such failure,
stoppage, or interruption of services, Landlord shall use reasonable diligence
to have the same restored. Neither diminution nor shutting off of light or air
or both, nor any other effect on the Building Complex by any structure erected
or condition now or hereafter existing on lands adjacent to the Building
Complex, shall affect this Lease, ▇▇▇▇▇ Rent, or otherwise impose any liability
on Landlord.
Landlord shall have the right to reduce heating, cooling, or lighting
within the Leased Premises and in the public area in the Building as required by
any mandatory fuel or energy-saving program.
Unless otherwise provided by Landlord, Tenant shall separately arrange
with the applicable local public authorities or utilities, as the case may be,
for the furnishing of and payment for all telephone and facsimile services as
may be required by Tenant in the use of the Leased Premises. Tenant shall
directly pay for such telephone and facsimile services as may be required by
Tenant in the use of the Leased Premises. Tenant shall directly pay for such
telephone and facsimile services, including the establishment and connection
thereof, at the rates charged for such services by said authority or utility;
and the failure of Tenant to obtain or to continue to receive such services for
any reason whatsoever shall not relieve Tenant of any of its obligations under
this Lease.
ARTICLE 7. REPAIRS AND MAINTENANCE BY LANDLORD
7.1. Landlord shall provide for the cleaning and maintenance of the public
portions of the Building Complex in keeping with the ordinary standard for
first-class office buildings in the greater Nashville area as a part of
Operating Expenses. Unless otherwise expressly stipulated herein, Landlord shall
not be required to make any improvements or repairs of any kind or character to
the Leased Premises during the Term, except such repairs as may be required to
the exterior walls, corridors, windows, roof, and other structural elements and
equipment of the Building Complex, and such additional maintenance as may be
necessary because of the damage caused by persons other than Tenant, its agents,
employees, licensees, or invitees.
7.2. Landlord or Landlord's officers, agents, and representatives (subject
to any security regulations imposed by any governmental authority) shall have
the right to enter all parts of the Leased Premises at all reasonable hours upon
reasonable advance notice to Tenant except in cases of emergency when no notice
shall be required to inspect, clean, make repairs, alterations, and additions to
the Building Complex or the Leased Premises which it may deem necessary or
desirable, to make repairs to adjoining spaces, to cure any defaults of Tenant
hereunder that Landlord elects to cure, to show the Leased Premises to
prospective tenants or purchasers of the Building, or to provide any service
which it is obligated or elects to furnish to Tenant; and Tenant shall not be
entitled to any abatement or reduction of Rent by reason thereof. Landlord shall
have the right to enter the Leased Premises at any time and by any means in the
case of an emergency.
ARTICLE 8. REPAIRS AND CARE OF BUILDING COMPLEX BY TENANT
If the Building, the Building Complex, or any portion thereof, including,
but not limited to, the elevators, boilers, engines, pipes, and other apparatus,
or members of elements of the Building (or any of them) used for the purpose of
climate, control of the Building or operating the elevators, or of the water
pipes, drainage pipes, electric lighting, or other equipment of the Building or
the roof or outside walls of the Building of Landlord and also the Leased
Premises improvements, including, but not limited to, the carpet, wall covering,
doors, and woodwork, become damaged or are destroyed through the negligence,
carelessness, or misuse of Tenant, its servants, agents, employees, or anyone
permitted by Tenant to be in the Building, or through it or them, then the cost
of the necessary repairs, replacements, or alterations shall be borne by Tenant
who shall forthwith pay the same on demand to Landlord as Additional Rent.
Landlord shall have the exclusive right, but not the obligation, to make any
repairs necessitated by such damage.
Tenant agrees, at its sole cost and expense, to repair or replace any
damage or injury done to the Building Complex, or any part thereof, caused by
Tenant, Tenant's agents, employees,
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licenses, or invitees which Landlord elects not to repair. Tenant shall not
injure the Building Complex or the Leased Premises and shall maintain the Leased
Premises in a clean, attractive condition and in good repair. If Tenant fails to
keep the Leased Premises in such good order, condition, and repair as required
hereunder to the satisfaction of Landlord, Landlord may restore the Leased
Premises to such good order and condition and make such repairs without
liability to Tenant for any loss or damage that may accrue to Tenant's property
or business by reason thereof, and upon completion thereof Tenant shall pay to
Landlord, as Additional Rent, upon demand, the cost of restoring the Leased
Premises to such good order and condition and of the making of such repairs,
plus an additional charge of fifteen percent (15%) thereof. Tenant shall leave
the Leased Premises at the end of each business day in a reasonably tidy
condition for the purpose of allowing the performance of Landlord's cleaning
services. Upon the Expiration Date or the Termination Date, Tenant shall
surrender and deliver up the Leased Premises to Landlord in the same condition
in which they existed at the Commencement Date, excepting only ordinary wear and
tear and damage arising from any cause not required to be repaired by Tenant.
Upon the Expiration Date or the Termination Date, Landlord shall have the right
to re-enter and take possession of the Leased Premises.
Tenant shall not provide any janitorial or cleaning services without
Landlord's written consent, and then only subject to supervision of Landlord, at
Tenant's sole responsibility, and by a janitorial or cleaning contractor or
employees at all times satisfactory to Landlord.
ARTICLE 9. TENANT'S EQUIPMENT AND INSTALLATIONS
If heat-generating machines or equipment, including telephone equipment,
cause the temperature in the Leased Premises, or any part thereof, to exceed the
temperatures the Building's air conditioning system would be able to maintain in
such Leased Premises were it not for such heat generating equipment, then
Landlord reserves the right to install supplementary air conditioning units in
the Leased Premises, and the cost thereof, including the cost of installation
and the cost of operation and maintenance thereof, including water, shall be
paid by Tenant to Landlord upon demand by Landlord.
Except for desk or table-mounted typewriters, adding machines, office
calculators, dictation equipment, personal computers, and other similar office
equipment, Tenant shall not install within the Leased Premises any fixtures,
equipment, facilities, or other improvements without the specific written
consent of Landlord. Tenant shall not, without the specific written consent of
Landlord, install or maintain any apparatus or device within the Leased Premises
which shall increase the usage of electrical power or water for the Leased
Premises to an amount greater than would be normally required for general office
use for space of comparable size in the greater Nashville area; and if any such
apparatus or device is so installed, Tenant agrees to furnish Landlord written
agreement to pay for any additional costs of utilities as the result of said
installation.
ARTICLE 10. FORCE MAJEURE
It is understood and agreed that with respect to any service to be
furnished or obligations to be performed by Landlord for Tenant that in no event
shall Landlord be liable for failure to furnish or perform the same when
prevented from doing so by strike, lockout, breakdown, accident, supply, or
inability by the exercise of reasonable diligence to obtain supplies, parts, or
employees necessary to furnish such service or met such obligation; or because
of war or other emergency; or for any cause beyond Landlord's reasonable
control; or for any cause due to any act or omission of Tenant or its agents,
employees, licensees, invitees, or any persons claiming by, through, or under
Tenant.
ARTICLE 11. MECHANICS' AND MATERIALMAN'S LIENS
11.1. Tenant shall not suffer or permit any mechanics' or materialman's
lien to be filed against the Leased Premises or any portion of the Building
Complex by reason of work, labor, services, or materials supplied or claimed to
have been supplied to Tenant. Nothing herein contained shall be deemed or
construed in any way as constituting the consent or request of Landlord,
expressed or implied, by inference or otherwise, for any contractor,
subcontractor, laborer, or materialman to perform any labor or to furnish any
materials or to make any specific improvement, alteration, or repair of or to
the Leased Premises or any portion of the Building Complex; nor of giving Tenant
any right, power, or authority to contract for, or permit the
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rendering of, any services or the furnishing of any materials that could give
rise to the filing of any mechanics' or materialman's lien against the Leased
Premises or any portion of the Building Complex.
11.2. If any such mechanics' or materialman's lien shall at any time be
filed against the Leased Premises or any portion of the Building Complex as the
result of any act or omission of Tenant, Tenant covenants that it shall, within
twenty (20) days after Tenant has notice of the claim for lien, procure the
discharge thereof by payment or by giving security or in such other manner as is
or may be required or permitted by law or which shall otherwise satisfy
Landlord. If Tenant fails to take such action, Landlord, in addition to any
other right or remedy it may have, may take such action as may be reasonably
necessary to protect its interests. Any amounts paid by Landlord in connection
with such action, all other expenses of Landlord incurred in connection
therewith, including reasonable attorneys' fees, court costs, and other
necessary disbursements shall be repaid by Tenant to Landlord on demand.
ARTICLE 12. ARBITRATION
In the event that a dispute arises under Section 5.3 above, or if any
disputes relating to provisions or obligations in this Lease as to which a
specific provision for a reference to arbitration is made herein, the same shall
be submitted to arbitration in accordance with the provisions of applicable
state law, if any, as from time to time amended. Arbitration proceedings,
including the selection of an arbitrator, shall be conducted pursuant to the
rules, regulations, and procedures from time to time in effect as promulgated by
the American Arbitration Association. Prior written notice of application by
either party for arbitration shall be given to the other at least ten (10) days
before submission of the application to the said Association's office in the
city wherein the Building is situated (or the nearest other city having an
Association office). The arbitrator shall hear the parties and their evidence.
The decision of the arbitrator may be entered in the appropriate court of law;
and the parties consent to the jurisdiction of such court and further agree that
any process or notice of motion or other application to the Court or a Judge
thereof may be served outside the State wherein the Building is situated by
registered mail or by personal service, provided a reasonable time for
appearance is allowed. The costs and expenses of each arbitration hereunder and
their apportionment between the parties shall be determined by the arbitrator in
his award or decision. No arbitrable dispute shall be deemed to have arisen
under this Lease prior to (a) the expiration of the period of twenty (20) days
after the date of the giving of written notice by the party asserting the
existence of the dispute, together with a description thereof sufficient for an
understanding thereof; and (b) where a Tenant payment (e.g., Operating Expense
Excess under Article 9 hereof) is in issue, the amount billed by Landlord having
been paid by Tenant. The prevailing party in such arbitration shall be
reimbursed for its expenses, including reasonable attorneys' fees.
ARTICLE 13. INSURANCE
13.1. Landlord shall maintain, as a part of Operating Expenses, fire and
extended coverage insurance on the Building Complex. Such insurance shall be
maintained with an insurance company, in amounts desired by Landlord or
Landlord's mortgagee, and payment for losses thereunder shall be made solely to
Landlord subject to the rights of the holder of any mortgage or deed of trust
which may now or hereafter encumber the Building Complex.
13.2. Tenant shall maintain, at its sole cost and expense, comprehensive
general liability insurance (including coverage for bodily injury and death,
property damage, fire, legal liability, and owner's contractors protective
liability with respect to the Leased Premises to the extent that the same is not
covered by Landlord's own insurance) in a form and with an insurance company
acceptable to Landlord in a minimum amount of Two Million and 00/100 Dollars
($2,000,000.00) combined single limit. At all times during the Term, such
insurance shall be maintained, and Tenant shall cause a current and valid
certificate of such policy to be deposited with Landlord. If Tenant fails to
have a current and valid certificate of such policy on deposit with Landlord at
all times during the Term, then Landlord shall have the right, but not the
obligation, to obtain such an insurance policy, and Tenant shall be obligated to
pay Landlord the amount of the premiums applicable to such insurance within ten
(10) days after Tenant's receipt of Landlord's request for payment thereof. Said
policy of insurance shall name Landlord and Tenant as the insureds and shall be
non-cancelable with respect to Landlord except after thirty (30) days' written
notice from the insurer to Landlord.
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13.3. Tenant shall adjust annually the amount of the coverage established
in Section 13.2 hereof to such amount as, in Landlord's reasonable opinion,
adequately protects Landlord's interest.
13.4. Notwithstanding anything herein to the contrary, Landlord and Tenant
each hereby waives any and all rights of recovery, claim, action, or cause of
action against the other, its agents, employees, licensees, or invitees for any
loss or damage to or at the Leased Premises or the Building Complex or any
personal property of such party therein or thereon by reason of fire, the
elements, or any other cause which would be insured against under the terms of
the insurance policies referred to hereinabove, to the extent of such insurance,
regardless of cause or origin, including omission of the other party hereto, its
agents, employees, licensees, or invitees. Landlord and Tenant covenant that no
insurer shall hold any right of subrogation against either of such parties. This
waiver shall be ineffective against any insurer of Landlord or Tenant to the
extent that such waiver is prohibited by the laws and insurance regulations of
the State of Tennessee. The parties hereto agree that any and all such insurance
policies required to be carried by either shall be endorsed with a subrogation
clause, substantially as follows: "This insurance shall not be invalidated
should the insured waive, in writing prior to a loss, any and all right of
recovery against any party for loss occurring to the property described
therein," and shall provide that such party's insurer waives any right of
recovery against the other party in connection with any such loss or damage.
ARTICLE 14. QUIET ENJOYMENT
Provided Tenant has performed all its obligations under this Lease,
including, but not limited to, the payment of Rent and all other sums due
hereunder, Tenant shall peaceably and quietly hold and enjoy the Leased Premises
for the Term, without hinderance by Landlord, subject to the provisions and
conditions set forth in this Lease.
ARTICLE 15. ALTERATIONS
Tenant agrees that it shall not make or allow to be made any alterations,
physical additions, or improvements in or to the Leased Premises without first
obtaining the written consent of Landlord in each instance, which consent may be
conditioned, given, or withheld in Landlord's sole discretion. At the time of
said request, Tenant shall submit to Landlord plans and specifications of the
proposed alterations, additions, or improvements; and Landlord shall have a
period of not less than sixty (60) days therefrom in which to review and approve
or disapprove said plans. Tenant shall pay to Landlord upon demand the
reasonable cost and expense of Landlord in (a) reviewing said plans and
specifications, and (b) inspecting the alterations, additions, or improvements
to determine whether the same are being performed in accordance with the
approved plans and specifications and all laws and requirements of public
authorities, including, without limitation, the fees of any architect or
engineer employed by Landlord for such purpose. In any instance where Landlord
grants such consent, and permits Tenant to use its own contractors, laborers,
materialmen, and others furnishing labor or materials for Tenant's construction
(collectively, "Tenant's Contractors"), Landlord's consent shall be deemed
conditioned upon each of Tenant's Contractors (a) working in harmony and not
interfering with any laborer utilized by Landlord, Landlord's contractors,
laborers, or materialmen; (b) furnishing Landlord with evidence of acceptable
liability insurance, worker's compensation coverage and if required by Landlord,
completion bonding, and if at any time such entry by one or more persons
furnishing labor or materials for Tenant's work shall cause such disharmony or
interference, the consent granted by Landlord to Tenant may be withdrawn
immediately upon written notice from Landlord to Tenant. Tenant, at its expense,
shall obtain all necessary governmental permits and certificates for the
commencement and prosecution of alterations, additions, or improvements and for
final approval thereof upon completion, and shall cause any alterations,
additions, or improvements to be performed in compliance therewith and with all
applicable law and requirements of public authorities and with all applicable
requirements of insurance bodies. All alterations, additions, or improvements
shall be diligently performed in a good and workmanlike manner, using new
materials and equipment at least equal in quality and class to the better of (a)
the original installations of the Building, or (b) the then standards for the
Building established by Landlord. Upon the completion of work and upon request
by Landlord, Tenant shall provide Landlord copies of all waivers or releases of
lien from each of Tenant's contractors. No alterations, modifications, or
additions to the Building Complex or the Leased Premises shall be removed by
Tenant either during the Term or upon the Expiration Date or the Termination
Date without the express written approval of Landlord.
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Tenant shall not be entitled to any reimbursement or compensation resulting from
its payment of the cost of constructing all or any portion of said improvements
or modifications thereto unless otherwise expressly agreed by Landlord in
writing. Tenant agrees specifically that no food, soft drink, or other vending
machine shall be installed within the Leased Premises, without the prior written
consent of Landlord.
Landlord's approval of Tenant's plans for work shall create no
responsibility or liability on the part of Landlord for their completeness,
design sufficiency, or compliance with all laws, rules, and regulations of
governmental agencies or authorities, including, but not limited to, the
Americans with Disabilities Act. Landlord may, at its option, at Tenant's
expense, require that Landlord's contractors be engaged for any mechanical or
electrical work or other building or leasehold improvement.
At least five (5) days prior to the commencement of any work permitted to
be done by persons requested by Tenant on the Leased Premises, Tenant shall
notify Landlord of the proposed work and the names and addressed of Tenant's
Contractors. During any such work on the Leased Premises, Landlord, or its
representatives, shall have the right to go upon and inspect the Leased Premises
at all reasonable times, and shall have the right to post and keep posted
thereon building permits or to take any further action which Landlord may deem
to be proper for the protection of Landlord's interest in the Leased Premises.
ARTICLE 16. FURNITURE, FIXTURES, AND PERSONAL PROPERTY
16.1. Tenant, at its sole cost and expense, may remove its trade fixtures,
office supplies and moveable office furniture and equipment not attached to the
Building Complex or Leased Premises provided:
16.1.1. such removal is made prior to the Expiration Date or the
Termination Date;
16.1.2. Tenant is not in default of any obligation or covenant under
this Lease at the time of such removal; and
16.1.3. Tenant promptly repairs all damage caused by such removal.
16.2. If Tenant does not remove its trade fixtures, office supplies, and
moveable furniture and equipment is hereinabove provided prior to the Expiration
Date or the Termination Date (unless prior arrangements have been made with
Landlord and Landlord has agreed in writing to permit Tenant to leave such items
in the Leased Premises for an agreed period), then, in addition to its other
remedies, at law or in equity, Landlord shall have the right to have such items
removed and stored at Tenant's sole cost and expense and all damage to the
Building Complex or the Leased Premises resulting from said removal shall be
repaired at the cost of Tenant; Landlord may elect that such items automatically
become the property of Landlord upon the Expiration Date or the Termination
Date, and Tenant shall not have any further rights with respect thereto or
reimbursement therefor. All other property in the Leased Premises, any
alterations, or additions to the Leased Premises (including wall-to-wall
carpeting, paneling, wall covering, specially constructed or built-in cabinetry
or bookcases), and any other article attached or affixed to the floor, wall, or
ceiling of the Leased Premises shall become the property of Landlord and shall
remain upon and be surrendered with the Leased Premises as a part thereof at the
Expiration or Termination Date regardless of who paid therefor; and Tenant
hereby waives all rights to any payment or compensation therefor. If, however,
Landlord so requests, in writing, Tenant shall remove, prior to the Expiration
Date or the Termination Date, any and all alterations, additions, fixtures,
equipment, and property placed or installed in the Leased Premises and shall
repair any damage caused by such removal.
16.3. All the furnishings, fixtures, equipment, effects, and property of
every kind, nature, and description of Tenant and of all persons claiming by,
through, or under Tenant which, during the continuance of this Lease or any
occupancy of the Leased Premises by Tenant or anyone claiming under Tenant, may
be on the Leased Premises or elsewhere in the Building Complex shall be at the
sole risk and hazard of Tenant, and if the whole or any part thereof shall be
destroyed or damaged by fire, water, or otherwise, or by the leakage or bursting
of water pipes, steam pipes, or other pipes, by theft, or from any other cause,
no part of said loss or
9
damage is to be charged to or be borne by Landlord unless due to the gross
negligence of Landlord.
ARTICLE 17. TAXES
During the Term hereof, Tenant shall pay, prior to delinquency, all
business and other taxes, charges, notes, duties, and assessments levied, and
rates or fees imposed, charged, or assessed against or in respect of Tenant's
occupancy of the Leased Premises or in respect of the personal property, trade
fixtures, furnishings, equipment, and all other personal property of Tenant
contained in the Building Complex, and shall hold Landlord harmless from and
against all payment of such taxes, charges, notes, duties, assessments, rates,
and fees, and against all loss, costs, charges, notes, duties, assessments,
rates, and fees, and any and all such taxes. Tenant shall cause said fixtures,
furnishings, equipment, and other personal property to be assessed and billed
separately from the real and personal property of Landlord. In the event any or
all of Tenant's fixtures, furnishings, equipment, and other personal property
shall be assessed and taxed with Landlord's real property, Tenant shall pay to
Landlord Tenant's share of such taxes within ten (10) days after delivery to
Tenant by Landlord of a statement in writing setting forth the amount of such
taxes applicable to Tenant's property.
ARTICLE 18. ASSIGNMENT AND SUBLETTING
18.1. Neither Tenant nor Tenant's legal representatives nor successors in
interest by operation of law or otherwise shall assign this Lease or sublease
the Leased Premises or any part thereof or mortgage, pledge, or hypothecate its
leasehold interest therein, or permit the use of a desk or other space within
the Leased Premises by any third party and any attempt to do so without the
prior express written consent of Landlord shall be void, of no effect, and
constitute an Act of Default (as hereinafter defined). This prohibition against
assigning or subletting shall be construed to include a prohibition against any
assignment or subletting by operation of law. The voluntary or other surrender
of this Lease by Tenant or a mutual cancellation hereof shall not work a merger
and shall, at the option of Landlord, terminate all or any existing sublease or
may, at the option of Landlord, operate as an assignment to Landlord of Tenant's
interest in any or all such subleases.
18.2. A sale, transfer, pledge, or hypothecation by Tenant of all or
substantially all of its assets or all or substantially all of its stock, or if
Tenant is a publicly traded corporation, a merger of Tenant with another
corporation or a sale of ten percent (10%) or more of its stock or a sale of
substantially all its assets; or the sale, transfer, pledge, or hypothecation of
fifty percent (50%) or more of the stock of Tenant if Tenant's stock is not
publicly traded; or the sale, transfer, pledge, or hypothecation of fifty
percent (50%) or more of the beneficial ownership interest in Tenant if Tenant
is a partnership without the prior written consent of Landlord, shall, in any of
the foregoing cases and whether or not accomplished by one or more related or
unrelated transactions, constitute a prohibited assignment of this Lease.
18.3. If Tenant should desire to assign this Lease or sublease the Leased
Premises or any portion thereof, Tenant shall give Landlord written notice of
such desire to make such assignment or effect such sublease. At the time of
giving such notice, Tenant shall provide Landlord with a copy of the proposed
assignment or sublease document, and such information as Landlord may reasonably
request concerning the proposed sublessee or assignee to assist Landlord in
making an informed judgment regarding the financial condition, reputation,
operation, and general desirability of the proposed sublessee or assignee.
Landlord shall then have a period of thirty (30) days following receipt of such
notice within which to notify Tenant in writing of Landlord's election to:
18.3.1. terminate this Lease as to the space so affected as of the
date specified by Tenant, in which event Tenant shall be relieved of all further
obligations hereunder as to the Leased Premises or said portion thereof, after
paying all Rent due as of the Termination Date; or
18.3.2. permit Tenant to assign or sublet the Leased Premises or
said portion thereof; or
18.3.3. refuse to consent to Tenant's assignment or subleasing of
the Leased Premises or said portion thereof and to continue this Lease in full
force and effect as to the entire Leased Premises.
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If Landlord should fail to notify Lessee of its election within said
thirty (30) day period, Landlord shall have elected option 18.3.3 above.
Landlord and Tenant agree that, in the event of any approved assignment or
subletting, the rights of any such assignee or sublessee of Tenant herein shall
be subject to all of the terms, conditions, and provisions of this Lease,
including, without limitation, restriction on use, assignment, and subletting
and the covenant to pay Rent. Landlord may collect Rent directly from such
assignee or sublessee and apply the amount so collected to the Rent herein
reserved. No such consent to or recognition of any such assignment or subletting
shall constitute a release of Tenant or any guarantor of Tenant's performance
hereunder from further performance by Tenant or such guarantor of covenants
undertaken to be performed by Tenant herein. Tenant and/or such guarantor shall
remain liable and responsible for all Rent and other obligations herein imposed
upon Tenant. Consent by Landlord to a particular assignment, sublease, or other
transaction shall not be deemed a consent to any other or subsequent
transaction. In any case, Landlord consents to any such assignment, sublease, or
other transaction, Tenant shall pay any reasonable attorneys' fees incurred by
Landlord in connection with such transaction. All documents utilized by Tenant
to evidence any subletting or assignment for which Landlord's consent has been
requested, shall be subject to prior approval by Landlord or its attorney. If
any Rent payable to Tenant by any sublessee, assignee, licensee, or other
transferee exceeds the Rent reserved herein, then Tenant shall be bound and
obligated to pay Landlord all such excess Rent within ten (10) days following
receipt thereof by Tenant from such sublessee, assignee, licensee, or other
transferee, as the case might be.
18.4. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et. seq. (the
"Bankruptcy Code"), any and all monies or other consideration payable or
otherwise to be delivered in connection with such assignment shall be paid or
delivered to Landlord, shall be and remain the exclusive property of Landlord,
and shall not constitute property of Tenant or of the estate of Tenant within
the meaning of the Bankruptcy Code. Any such monies or other consideration 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. Any person or entity to
whom this Lease is so assigned shall be deemed, without further act or deed, to
have assumed all of the obligations arising under this Lease as of the date of
such assignment. Any such assignee shall, upon demand therefor, execute and
deliver to Landlord an instrument confirming such assumption. In no event shall
Tenant have any right to sublet or assign if there exists any default under this
Lease.
18.5. Notwithstanding the foregoing provisions, any consents required by
Landlord under this Section shall not be unreasonably withheld or untimely
delayed.
ARTICLE 19. FIRE AND CASUALTY
19.1. If the Leased Premises or any part thereof shall be damaged by fire
or other casualty, Tenant shall give prompt written notice thereof to Landlord.
If the Building Complex shall be damaged by fire or other casualty and any of
the following applies: (a) substantial alteration or reconstruction of the
Building Complex is, in Landlord's reasonable opinion, required (whether or not
the Leased Premises shall have been damaged by such fire or other casualty), (b)
any mortgagee under a mortgage or deed of trust covering the Building Complex
requires that the insurance proceeds payable as a result of said fire or other
casualty be used to retire the mortgage debt, (c) the Building Complex is
damaged as a result of a risk that is not covered by Landlord's insurance, or
(d) the Leased Premises is materially damaged during the last year of the Term,
then Landlord may, at its option, terminate this Lease by notifying Tenant in
writing of such termination within thirty (30) days after the date of such
damage or casualty, in which event the Rent hereunder shall be abated as of the
date of such notice. In cases of less than such substantial damage and upon
receipt of the insurance proceeds for the damage, Landlord shall restore and
repair the Leased Premises.
19.2. If Landlord elects not to terminate this Lease as herein provided
and if repairs have not been commenced within sixty (60) days from the date of
damage and thereafter completed within six (6) months (excepting that Landlord
shall not be responsible for delays brought about by force majeure, as described
in Article 10 hereof), this Lease may be immediately terminated by Tenant by
serving written notice upon Landlord.
19.3. To the extent of the insurance proceeds available to Landlord
therefor, Landlord shall repair and restore the Building Complex and/or the
Leased Premises to substantially the
11
same condition in which they were immediately prior to the fire or other
casualty, except that Landlord shall not be required to rebuild, repair, or
replace any part of Tenant's furniture, fixtures, furnishings, or equipment or
any alterations, additions, or improvements made by Tenant to the Leased
Premises pursuant to Article 15 of this Lease. Landlord's repair or restoration
work shall not exceed the scope of work done in originally constructing the
Building Complex and the Leased Premises. Landlord shall not be liable for any
inconvenience, annoyance, or injury done to the business of Tenant resulting in
any way from such damage or the repair thereof and Tenant's obligations to pay
rent shall continue unabated, except Landlord shall allow Tenant an equitable
reduction of Rent during the time and to the extent the Leased Premises are
unfit for occupancy, save for Tenant's fault or negligence hereinbelow
described.
19.4. If the Leased Premises or the Building Complex shall be totally or
partially damaged by fire or other casualty resulting from the fault or
negligence of Tenant, or its agents, employees, licensees, or invitees, such
damage shall be repaired by and at the expense of Tenant (to the extent that
such destruction or damage is not covered by the fire and extended coverage
insurance carried by Landlord as provided herein), under the direction and
supervision of Landlord, and Rent shall continue without abatement.
ARTICLE 20. CONDEMNATION
If there shall be taken by exercise of the power of eminent domain, or by
conveyance in lieu thereof, during the Term any material part of the Leased
Premises or the Building Complex, Landlord may elect to terminate this Lease
upon written notice to Tenant within thirty (30) days after the date of such
taking or transfer in lieu thereof or to continue the same in effect. All
compensation awarded for any taking (or the proceeds or private sale in lieu
thereof) of the Leased Premises, Building or Building Complex shall be the
property of Landlord, and Tenant hereby assigns its interest in any such award
to Landlord; provided, however, Landlord shall have no interest in any award
made to Tenant for the taking of Tenant's fixtures and other personal property
or moving expenses if a separate award for such items is made to Tenant. If this
Lease is terminated as a result of any such exercise of the power of eminent
domain, Rent shall be payable up to the date that possession is taken by the
condemning authority; Landlord shall refund to Tenant any prepaid unaccrued
Rent, less any sum then owing by Tenant to Landlord; and Tenant shall have no
claim against Landlord for the value of any unexpired portion of the Term. If
such condemnation does not result in the termination of this Lease, the Rent
thereafter to be paid shall be proportionately reduced as to the space affected.
ARTICLE 21. HOLD HARMLESS
21.1. Tenant agrees to defend, with counsel approved by Landlord, all
actions against Landlord, any partner, trustee, stockholder, officer, director,
employee, or beneficiary of Landlord, holders of mortgages secured by the Leased
Premises or the Building Complex and any other party having an interest therein
(the "Indemnified Parties") with respect to, and to pay, protect, indemnify, and
save harmless, to the extent permitted by law, all Indemnified Parties from and
against, any and all liabilities, losses, damages, costs, expenses (including
reasonable attorneys' fees and expenses), causes of action, suits, claims,
demands, or judgments of any nature to which any Indemnified Party is subject
because of its estate or interest in the Leased Premises or the Building Complex
arising from (i) injury to or death of any person, or damage to or loss of
property, on the Leased Premises, the Building Complex, or, to the extent caused
by or attributable to Tenant, on adjoining sidewalks, streets or ways, or, in
any of the foregoing cases, connected with the use, condition, or occupancy of
the Leased Premises, the Building Complex sidewalks, streets, or ways unless
caused by the gross negligence of Landlord or its servants or agents, (ii)
violation of this Lease by or attributable to Tenant, or (iii) any act, fault,
omission, or other misconduct of Tenant or its agents, contractors, licenses,
sublessees, or invitees. Tenant agrees to use and occupy the Leased Premises and
other facilities of the Building Complex at its own risk, and hereby releases
the Indemnified Parties from any and all claims for any damage or injury to the
fullest extent permitted by law.
21.2. Tenant agrees that Landlord shall not be responsible or liable to
Tenant, its agents, employees, licensees, or invitees for fatal or non-fatal
bodily injury or property damage occasioned by the acts or omissions of any
other tenant, or such other tenant's agents, employees, licensees, or invitees,
of the Building Complex.
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ARTICLE 22. DEFAULT BY TENANT
22.1. The term "Act of Default" refers to the occurrence of any one (1) or
more of the following:
22.1.1. Failure of Tenant to pay when due any sum required to be
paid hereunder (the "Monetary Default");
22.1.2. Failure of Tenant, after ten (10) days written notice
thereof, to perform any of Tenant's obligations, covenants, or agreements except
a Monetary Default;
22.1.3. If Tenant, or any guarantor of Tenant's obligations under
this Lease (the "Guarantor"), admits in writing that it cannot meet its
obligations as they become due; or is declared insolvent according to any law;
or assignment of Tenant's or Guarantor's property is made for the benefit of
creditors; or a receiver or trustee is appointed for Tenant or Guarantor or its
property; or the interest of Tenant or Guarantor under this Lease is levied on
under execution or other legal process; or any petition is filed by or against
Tenant or Guarantor to declare Tenant bankrupt or to delay, reduce, or modify
Tenant's debts or obligations; or any petition is filed or other action taken to
reorganize or modify Tenant's or Guarantor's capital structure if Tenant is a
corporation or other entity. Any such levy, execution, legal process, or
petition filed against Tenant or Guarantor shall not constitute a breach of this
Lease provided Tenant or Guarantor shall vigorously contest the same by
appropriate proceedings and shall remove or vacate the same within sixty (60)
days from the date of its creation, service, or filing;
22.1.4. The abandonment of the Leased Premises by Tenant, which
shall mean that Tenant has vacated the Leased Premises for ten (10) consecutive
days, whether or not Tenant is in Monetary Default; or that Tenant, in the
judgment of Landlord, is vacating the Leased Premises by removing a substantial
part of its furniture and fixtures;
22.1.5. The discovery by Landlord that any financial statement given
by Tenant or any of its assignees, subtenants, successors-in-interest, or
Guarantors was materially false; or
22.1.6. If Tenant or any Guarantor shall die, cease to exist as a
corporation or partnership, or be otherwise dissolved or liquidated or become
insolvent, or shall make a transfer in fraud of creditors.
22.2. In the event of any Act of Default by Tenant, Landlord, at its
option, may pursue one or more of the following remedies without notice or
demand in addition to all other rights and remedies provided for in law or in
equity:
22.2.1. Terminate this Lease, in which event Tenant shall
immediately surrender possession of the Leased Premises to Landlord;
22.2.2. Enter upon or take possession of the Leased Premises and its
contents and expel or remove Tenant, any other occupant, and any contents
therefrom using such force as may be reasonably necessary, with or without
having terminated the Lease and without being liable for prosecution of any
claim of damages therefor; and/or
22.2.3. In connection with any action taken by Landlord under
Sections 22.2.1 and 22.2.2 above, alter locks and other security devices from
the Leased Premises without being liable for prosecution of any claim of damages
therefor.
22.3. If Landlord shall exercise any one or more remedies hereunder
granted or otherwise available, it shall not be deemed to be an acceptance or
surrender of the Leased Premises by Tenant whether by agreement or by operation
of law; it is understood that such surrender can be effected only by the written
agreement of Landlord and Tenant. No alteration of security devices and no
removal or other exercise of dominion by Landlord over the property of Tenant or
others in the Leased Premises shall be deemed unauthorized or constitute a
conversion, Tenant hereby consenting to the aforesaid exercise of dominion over
Tenant's property within the Leased Premises after any Act of Default. All
claims for damages by reason of such reentry and/or repossession and/or
alteration of locks or other security devices are hereby waived as are all
claims for damages by reason of any distress warrant, forcible detainer
proceedings, sequestration proceedings, or other legal process. Tenant agrees
that any reentry by
13
Landlord may be pursuant to a judgment obtained in legal proceedings or without
the necessity of legal proceedings as Landlord may elect, and Landlord shall not
be liable in trespass or otherwise.
In the event Landlord may elect to regain possession of the Leased
Premises by a summary proceeding or forcible detainer proceedings, Tenant hereby
specifically waives, to the extent permitted by law, any statutory notice which
may be required prior to such proceeding and agrees that Landlord's execution of
this Lease is in part consideration for this waiver.
22.4. Should Landlord elect to terminate this Lease, Landlord may, without
further notice, repossess the Leased Premises and Tenant shall be liable as if
the expiration of the term fixed in such notice were the end of the Term herein
originally demised. In the event this Lease is terminated pursuant to the
provisions of this subsection, Tenant shall remain liable to Landlord for
damages in an amount equal to (a) the Rent and other sums which would have been
owing by Tenant hereunder for the balance of the Term had this Lease not been
terminated, less the net proceeds, if any, of any reletting of the Leased
Premises by Landlord subsequent to such termination after deducting all of
Landlord's expenses in connection with such reletting, including, but without
limitation, the expenses enumerated in Section 22.5 below, and (b) the
unamortized portion of the cost of Landlord's Work, amortized on a straight-line
basis over the initial term of this Lease. Landlord shall be entitled to collect
such damages from Tenant monthly on the days on which the Rent and other amounts
would have been payable hereunder if this Lease had not been terminated, and
Landlord shall be entitled to receive the same from Tenant on each such day.
22.5. Alternatively, at the option of Landlord, in the event this Lease is
terminated, Landlord shall be entitled to (a) accelerate and collect from Tenant
the Rent due under this Lease from the date on which the Act of Default occurred
through the date which would otherwise have been the Expiration Date of this
Lease if and when the Act of Default is a Monetary Default under Article 4, a
failure to obtain the required insurance coverage under Article 13, or a
violation of Section 3.1 or Article 18; or, at Landlord's election (b) recover
forthwith again Tenant as damages for loss of the bargain and not as a penalty
and Tenant shall be liable for and shall pay to Landlord the sum of all Rent and
other indebtedness accrued to the date of such termination, plus, as damages for
loss of the bargain and not as a penalty, an amount equal to the then-present
value of the Rent and any and all other sums reserved hereunder for the
remaining portion of the Term (had such Term not been terminated by Landlord
prior to the Expiration Date), plus all costs of reletting enumerated in Section
22.6 below, less the present value of the then-fair rental value of the Leased
Premises for such period. The parties hereby stipulate that such fair rental
value shall in no event be deemed to exceed sixty percent (60%) of the
then-present value of the Rent reserved for such period. For computations of
present value, the parties agree to use a six percent (6%) per annum interest
figure. The foregoing, together with any other damages incurred by Landlord in
connection with the termination of this Lease, shall accrue interest at the
highest applicable non-usurious rate permitted by law.
22.6. Should Landlord elect not to terminate this Lease, Landlord may,
without notice or demand, enter upon the Leased Premises or any part thereof and
take absolute possession of the same, and, at Landlord's option, Landlord may
relet the Leased Premises or any part thereof upon such terms and such rents as
Landlord may reasonably elect (which may include concessions of free rent and
alteration of the Leased Premises). Landlord shall use reasonable efforts but
shall not be obligated to relet the Leased Premises, and nothing herein
contained shall under any circumstances be construed so as to require Landlord
to lease the Leased Premises below the then-current market rental rates being
obtained for similar office buildings in a similar area or to lease the same to
any Tenant not creditworthy or otherwise unacceptable to Landlord and shall in
no way be responsible or liable for any failure to relet the Leased Premises, or
any part thereof, or for any failure to collect any rent due upon such
reletting. In the event Landlord shall elect to so relet, then any rent received
by Landlord from such reletting shall be applied first to the payment of any
indebtedness other than Rent due hereunder from Tenant to Landlord; second, to
payment of any reasonable cost of such reletting, including, without limitation,
all repossession costs, legal expenses, attorneys' fees, concessions, moving
and/or storage costs, alteration, remodeling and repair costs, leasing
commissions, and other expenses of preparation for such reletting; and third, to
the payment of Rent due and unpaid hereunder, and Tenant shall satisfy and pay
any deficiency between the rents so collected from the Rents reserved herein
upon demand therefor from time to time, and the unamortized portion of the cost
of the Tenant Work, amortized on a straight-line basis over the initial term of
this Lease. In no event shall
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Tenant be entitled to any excess of any rent obtained by reletting over and
above the Rent herein reserved.
22.7. Tenant further agrees that Landlord may file suit from time to time
to recover any sums due under the terms of this Section and that no recovery of
any portion due Landlord hereunder shall be a defense to any subsequent action
brought for any amount not theretofore reduced to judgment in favor of Landlord.
Reletting the leased Premises shall not be construed as an election on the part
of Landlord to terminate this Lease, and notwithstanding any such reletting
without termination, Landlord may at any time thereafter elect to terminate this
Lease for such previous breach, whereupon the foregoing provisions with respect
to termination shall apply. Nothing herein shall be deemed to require Landlord
to await the date whereon this Lease or the Term hereof would have expired by
limitation had there been no such default by Tenant, or no such termination, as
the case may be. Each right and remedy provided for in this Lease shall be
cumulative and shall be in addition to every other right or remedy provided for
in this Lease or now or hereafter existing at law or in equity or by statute or
otherwise, including, but not limited to, suits for injunctive relief and
specific performance. The exercise or beginning of the exercise by Landlord of
any one or more of the rights or remedies provided for in this Lease or now or
hereafter existing at law or in equity, or by statute or otherwise shall not
preclude the simultaneous or later exercise by Landlord or any or all other
rights or remedies provided for in this Lease or now or hereafter existing at
law or in equity or by statute or otherwise. All such rights and remedies shall
be considered cumulative and non-exclusive. All costs incurred by Landlord in
connection with collecting any Rent or other amounts and damages owing by Tenant
pursuant to the provisions of this Lease, or to enforce any provision of this
Lease, including reasonable attorneys' fees from the date such matter is turned
over to an attorney, whether or not one or more actions are commenced by
Landlord, shall also be recoverable by Landlord from Tenant.
22.8. If Tenant should fail to make any payment or cure any default
hereunder within the time herein permitted, Landlord, without being under any
obligation to do so and without thereby waiving such default, may make such
payment and/or remedy such other default for the account of Tenant (and enter
the Leased Premises for such purpose), and thereupon, Tenant shall be obligated
and hereby agrees to pay Landlord, upon demand, all reasonable costs, expenses,
and disbursements, plus fifteen percent (15%) overhead cost incurred by Landlord
in connection therewith.
22.9. In addition to Landlord's rights set forth above, if Tenant fails to
pay its Rent or any other amounts owing hereunder within the time period set
forth in Article 22.1.1 more than two (2) times during any calendar year during
the Term, or any extension thereof, then upon the occurrence of the third or any
subsequent default in the payment of monies during said calendar year, Landlord,
at its sole option, shall have the right to require that Tenant, as a condition
precedent to curing such default, pay to Landlord, in check or money order, in
advance, the Rent and Landlord's estimate or all other amounts which will become
due and owing hereunder by Tenant for a period of two (2) months. All such
amounts shall be paid by Tenant within thirty (30) days after notice from
Landlord demanding the same. All monies so paid shall be retained by Landlord,
without interest, for the balance of the Term and any extension thereof, and
shall be applied by Landlord to the last due amounts owing hereunder by Tenant.
If, however, Landlord's estimate of the Rent and other amounts for which Tenant
is responsible hereunder are inaccurate, when such error is discovered, Landlord
shall pay to Tenant, or Tenant shall pay to Landlord, within thirty (30) days
after written notice thereof, the excess of deficiency, as the case may be,
which is required to reconcile the amount on deposit with Landlord with the
actual amounts for which Tenant is responsible.
22.10. Nothing contained in this Section shall limit or prejudice the
right of Landlord to prove and obtain as liquidated damages in any bankruptcy,
insolvency, receivership, reorganization, or dissolution proceeding, an amount
equal to the maximum allowed by any statute or rule of law governing such a
proceeding and in effect at the time when such damages are to be proved, whether
or not such amount be greater, equal, or less than the amounts recoverable,
either as damages or Rent, referred to in any of the preceding provisions of
this Section. Notwithstanding anything contained in this Section to the
contrary, any such proceeding or action involving bankruptcy, insolvency,
reorganization, arrangement assignment for the benefit of creditors, or
appointment of a receiver or trustee, as set forth above, shall be considered to
be an Act of Default only when such proceeding, action, or remedy shall be taken
or brought by or against the then holder of the leasehold estate under this
Lease.
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22.11. In the event of any Act of Default or breach by Tenant, or
threatened or anticipatory breach or default, Tenant shall also be liable and
shall pay to Landlord, in addition to any sums provided to be paid above,
brokers' fees incurred by Landlord in connection with reletting the whole or any
part of the Leased Premises; the costs of removing and storing Tenant's or other
occupant's property; the costs of repairing, altering, remodeling, or otherwise
putting the Leased Premises into condition acceptable to a new tenant or
tenants; and all reasonable expenses incurred by Landlord in enforcing or
defending Landlord's rights and/or remedies, including reasonable attorneys'
fees, whether suit was actually file or not.
22.12. In the event of termination or repossession of the Leased Premises
for an Act of Default, Landlord shall not have any obligation to relet or
attempt to relet the Leased Premises or any portion thereof, or to collect
rental after reletting; and in the event of reletting, Landlord may relet the
whole or any portion of the Leased Premises for any period to any tenant and for
any use or purpose.
22.13. Landlord is entitled to accept, receive, in check or money order,
and deposit any payment made by Tenant for any reason or purpose or in any
amount whatsoever, and apply them at Landlord's option to any obligation of
Tenant, and such amounts shall not constitute payment of any amount owed, except
that to which Landlord has applied them. No endorsement or statement on any
check or letter of Tenant shall be deemed an accord and satisfaction or
recognized for any purpose whatsoever. The acceptance of any such check or
payment shall be without prejudice to Landlord's rights to recover any and all
amounts owed by Tenant hereunder and shall not be deemed to cure any other
default nor prejudice Landlord's rights to pursue any other available remedy.
22.14. In the event of any default by Landlord, Tenant's exclusive remedy
shall be an action for damages, Tenant hereby waiving the benefit of any laws
granting it a lien upon the property of Landlord and/or upon Rent due Landlord.
Prior to any such action for damages, Tenant shall give Landlord written notice
specifying such default with particularity, and Landlord shall thereupon have
thirty (30) days (plus such additional reasonable period as may be required in
the exercise by Landlord of due diligence) in which to cure any such default.
Unless and until Landlord fails to cure any default after such notice, Tenant
shall not have any remedy or cause of action by reasons thereof. All obligations
of Landlord hereunder shall be construed as covenants, not conditions.
22.15. In addition to and without limiting the foregoing, in the event of
any abandonment of the Leased Premises by Tenant, and Landlord does not elect to
declare this Lease terminated, then Tenant shall remain obligated,
notwithstanding any such discontinuance or cessation of operations, to perform
all covenants and agreements under this Lease, including, without limitation,
payment of all Base Rent, and all Additional Rent and other sums provided for
herein.
ARTICLE 23. LIEN FOR RENT
To secure the payment of all Rent due and to become due hereunder and the
faithful performance of all the other covenants of this Lease required to be
performed by Tenant, Tenant hereby gives to Landlord an express contract lien on
and first security interest in and to all property, equipment, machinery, trade
fixtures, chattels, and merchandise ("Lien") which may be placed in the Leased
Premises, and also upon all proceeds of any insurance which may accrue to Tenant
by reason of damage to or destruction of any such property, and agrees that this
Lease shall constitute a security agreement with respect thereto. All exemption
laws are hereby waived by Tenant. This Lien is given in addition to any
statutory liens and shall be cumulative thereto. Tenant agrees to execute from
time to time at the request of Landlord UCC-1 Financing Statements referencing
this Security Agreement in a form satisfactory to Landlord, and to file
originals of such statements with the clerk of the cities or towns where (a) the
Leased Premises are located, and (b) Tenant maintains its principal business
office or resident, or wherever else such statements would ordinarily be filed
to protect creditor's rights under Tennessee law. In addition to all other
rights of Landlord under this Lease, upon Tenant's default, Landlord shall have
all of the remedies of a secured party with respect to said property, equipment,
machinery, trade fixtures, chattels, and merchandise.
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ARTICLE 24. RIGHT TO RELOCATE
Notwithstanding anything herein to the contrary, Landlord shall, in all
cases, retail the right and power to relocate Tenant upon thirty (30) days'
written notice within the Building in such space which is comparable in size and
location and suited to Tenant's use, such right and power to be exercised
reasonable. Landlord shall not be liable or responsible for any claims, damages,
or liabilities in connection with or occasioned by such relocation. Landlord's
reasonable exercise of such right and power shall include, but not be limited
to, a relocation to consolidate the Rentable Area occupied in order to provide
Landlord's services more efficiently or a relocation to provide contiguous
vacant space for a prospective tenant. If Landlord shall exercise said option,
the substituted premises shall thereafter be deemed for the purposes hereof the
"Leased Premises" hereunder, and a new amended Exhibit B showing the new Leased
Premises will be substituted for the original Exhibit B attached hereto.
Landlord agrees to pay Tenant's expenses to move its furniture, fixtures, and
equipment to such substituted Leased Premises. If Tenant does not accept the
substitution space tenant may terminate this lease with a 60 day written notice.
ARTICLE 25. ATTORNEYS' FEES
Should it be necessary for Landlord or Tenant, because of a breach of the
other, to place the enforcement of this Lease or any part thereof, or the
collection of any Rent due or to become due hereunder, or recovery of the
possession of the Leased Premises, in the hands of any attorney, or file suit
upon the same, it is agreed that the prevailing party shall recover its
reasonable attorneys' fees from the non-prevailing party.
ARTICLE 26. NON-WAIVER
Neither acceptance of any payment by Landlord from Tenant nor failure by
Landlord to complain of any action, non-action, or default of Tenant shall
constitute a waiver of any of Landlord's rights hereunder. Time is of the
essence with respect to the performance of every obligation of Tenant under this
Lease in which time of performance is a factor. Waiver by Landlord of any right
or arising in connection with any default of Tenant shall not constitute a
waiver of such right or remedy or any other right or remedy arising in
connection with either a subsequent default of the same obligation or any other
default. No right or remedy of Landlord hereunder or covenant, duty, or
obligation of Tenant hereunder shall be deemed waived by Landlord unless such
waiver is in writing, signed by Landlord or Landlord's duly authorized agent.
ARTICLE 27. RULES AND REGULATIONS
Such reasonable rules and regulations applying to all lessees in the
Building Complex as may be hereafter adopted by Landlord for the safety, care,
and cleanliness of the Building Complex and the preservation of good order
thereon are hereby made a part hereof as Exhibit D, and Tenant agrees to comply
with all such rules and regulations. Landlord shall have the right at all times
to change such rules and regulations or to amend them in any reasonable manner
as may be deemed advisable by Landlord, all of which changes and amendments
shall be sent by Landlord to Tenant in writing and shall be thereafter carried
out and observed by Tenant. Landlord shall not have any liability to Tenant for
any failure of any other lessees of the Building Complex to comply with such
Rules and Regulations.
ARTICLE 28. ASSIGNMENT BY LANDLORD
Landlord shall have the right to transfer or assign, in whole or in part,
all its rights and obligations hereunder and in the Leased Premises and the
Building Complex. In such event, no liability or obligation shall accrue or be
charged to Landlord.
ARTICLE 29. LIABILITY OF LANDLORD
It is expressly understood and agreed that the obligations of Landlord
under this Lease shall be binding upon Landlord and its successors and assigns
and any future owner of the Building Complex only with respect to events
occurring during its and their respective ownership of the Building Complex. In
addition, Tenant agrees to look solely to Landlord's interest in the Building
Complex for recovery of any judgment against Landlord arising in connection with
this Lease, it being agreed that neither Landlord nor any successor or assign of
17
Landlord nor any future owner of the Building Complex, nor any partner,
shareholder, or officer of any of the foregoing shall ever be personally liable
for any such judgment.
ARTICLE 30. SUBORDINATION AND ATTORNMENT
This Lease, at Landlord's option, shall be subordinate to any mortgage
(now or hereafter placed upon the Building), ground lease or declaration of
covenants (hereafter placed upon the Building) regarding maintenance and use of
any areas contained in any portion of the Building, and to any and all advances
made under any mortgage and to all renewals, modifications, consolidations,
replacements, and extensions thereof. Tenant agrees, with respect to any of the
foregoing documents, that no documentation other than this Lease shall be
required to evidence such subordination. If any holder of a mortgage shall elect
for this Lease to be superior to the lien of its mortgage and shall give written
notice thereof to Tenant, then this Lease shall automatically be deemed prior to
such mortgage whether this Lease is dated earlier or later than the date of said
mortgage or the date of recording thereof. Tenant agrees to execute such
documents as may be further required to evidence such subordination or to make
this Lease prior to the lien of any mortgage or deed of trust, as the case may
be, and by failing to do so within five (5) days after written demand, Tenant
does hereby make, constitute, and irrevocably appoint Landlord as Tenant's
attorney-in-fact and in Tenant's name, place, and stead, to do so. This power of
attorney is coupled with an interest. Tenant hereby attorns to all successor
owners of the Building, whether or not such ownership is acquired as a result of
a sale through foreclosure of a deed of trust or mortgage, or otherwise.
Notwithstanding the foregoing, Tenant shall only be obligated to subordinate its
leasehold interest to any mortgage, deed or trust, ground lease, or declaration
of covenants now or hereafter placed upon the Building if the holder of such
mortgage or deed or trust or the landlord under such ground lease or the
declarant under such declaration of covenants will grant to tenant a
non-disturbance agreement, using the form of document then being employed by
such holder, landlord, or declarant for such purposes, which will provide that
Tenant, notwithstanding any default of Landlord hereunder, shall have the right
to remain in possession of the Leased Premises described herein in accordance
with the terms and provisions of this Lease for so long as Tenant shall not be
in default under this Lease. Additionally, Tenant shall, at such time or times
as Landlord may request, upon not less than five (5) days' prior written request
by Landlord sign and deliver to Landlord a certificate stating whether this
Lease is in full force and effect; whether any amendments or modification exist;
whether any Monthly Rent has been prepaid and, if so, how much; whether there
are any defaults hereunder; and such other information and agreements as may be
reasonable requested, it being intended that any such statement delivered
pursuant to this Article may be relied upon by Landlord and by any prospective
purchaser of all or any portion of Landlord's interest herein, or a holder or
prospective holder of any mortgage encumbering the Building. Tenant's failure to
deliver such statement within such time shall constitute an Act of Default (as
that term is defined elsewhere in this Lease) and shall conclusively be deemed
to be an admission by Tenant of the matters set forth in the request for an
estoppel certificate.
ARTICLE 31. HOLDING OVER
In the event Tenant, or any party claiming under Tenant, retains
possession of the Leased Premises after the Expiration Date or Termination Date,
such possession shall be that of a Holdover Tenant and an unlawful detainer. No
tenancy or interest shall result from such possession, and such parties shall be
subject to immediate eviction and removal. Tenant or any such party shall pay
Landlord, as Rent for the period of such holdover, an amount equal to double
Rent otherwise provided for herein during the time of holdover. Tenant shall
also be liable for any and all damages sustained by Landlord as a result of such
holdover. Tenant shall vacate the Leased Premises and deliver same to Landlord
immediately upon Tenant's receipt of notice from Landlord to so vacate. The Rent
during such holdover period shall be payable to Landlord on demand. No holding
over by Tenant, whether with or without consent of Landlord, shall operate to
extend this Lease.
ARTICLE 32. SIGNS
No sign, symbol, or identifying marks shall be put upon the Building
Complex, Building, in the halls, elevators, staircases, entrances, parking
areas, or upon the doors or ▇▇▇▇▇, without the prior written approval of
Landlord. Should such approval ever be granted, all signs or lettering shall
conform in all respect to the sign and/or lettering criteria established by
Landlord.
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Landlord, at Landlord's sole cost and expense, reserves the right to change the
door plaques as Landlord deems reasonably desirable.
ARTICLE 33. HAZARDOUS SUBSTANCES
With respect to Tenant's use of the Building Complex, Tenant shall at all
times, at its own cost and expense, comply with all federal, state, and local
laws, ordinances, regulations, and standards relating to the use, analysis,
production, storage, sale, disposal, or transportation of any hazardous
materials ("Hazardous Substance Laws"), including oil or petroleum products or
their derivatives, solvents, PCB's, explosive substances, asbestos, radioactive
materials or waste, and any other toxic, ignitable, reactive, corrosive,
contaminating, or pollution materials ("Hazardous Substances") which are now or
in the future subject to any governmental regulations.
Tenant shall not generate, store, or dispose of any Hazardous Substances
in or on the leased Premises or the Building Complex. Except in emergencies or
as otherwise required by law, Tenant shall not take any remedial action in
response to the presence or release of any Hazardous Substances on or about the
Building Complex without first giving written notice of the same to Landlord.
Tenant shall not enter into any settlement agreement, consent decree, or other
compromise with respect to any claims relating to any Hazardous Substances in
any way connected with the Building Complex without first notifying Landlord of
Tenant's intention to do so and affording Landlord the opportunity to
participate in any such proceedings.
All costs and expenses incurred by Landlord in connection with any
environmental audit shall be paid by Landlord (and may be included in Operating
Expenses), except that if any such environmental audit shows that Tenant has
failed to comply with the provisions of this Article, or that the Building
Complex (including surrounding soil and any underlying or adjacent groundwater)
have become contaminated due to the operations or activities in any way
attributable to Tenant, then all of the costs and expenses of such audit shall
be paid by Tenant.
In the event Tenant's occupancy or conduct of business in or on the Leased
Premises, whether or not Landlord has consented to the same, results in any
increase in premiums for the insurance carried from time to time by Landlord
with respect to the Building, Tenant shall pay any such increase in premiums as
Rent within ten (10) days after bills for such additional premiums shall be
rendered by Landlord. In determining whether increased premiums are a result of
Tenant's use or occupancy of the Leased Premises, a schedule issued by the
organization computing the insurance rate on the Building showing the various
components of such rate, shall be conclusive evidence of the several items and
charges which make up such rate. Tenant shall promptly comply with all
reasonable requirements of the insurance authority or of any insurer now or
hereafter in effect relating to the Leased Premises.
ARTICLE 34. COMPLIANCE WITH LAWS AND OTHER REGULATIONS
Tenant, at its sole cost and expense, shall promptly comply with all laws,
statutes, ordinances, and governmental rules, regulations, or requirements now
in force or which may hereafter become in force, of federal, state, county, and
municipal authorities, including, but not limited to, the Americans with
Disabilities Act, with the requirements of any board of fire underwriters or
other similar body now or hereafter constituted, and with any occupancy
certificate issued pursuant to any law by any public officer or officers, which
impose any duty upon Landlord or Tenant, insofar as any thereof relate to or
affect the condition, use, alteration, or occupancy of the Leased Premises.
Landlord's approval of Tenant's plans for any improvements shall create no
responsibility or liability on the part of Landlord for their completeness,
design sufficiency, or compliance with all laws, rules, and regulations of
governmental agencies or authorities, including, but not limited to, the
Americans with Disabilities Act.
ARTICLE 35. SEVERABILITY
This Lease shall be construed in accordance with the laws of the State of
Tennessee. If any clause or provision of this Lease is illegal, invalid, or
unenforceable under present or future laws effective during the Term, then it is
the intention of the parties hereto that the remainder of this Lease shall not
be affected thereby. It is also the intention of both parties that in lieu of
each clause or provision that is illegal, invalid, or unenforceable, there is
added as a part of this Lease
19
a clause or provision as similar in terms to such illegal, invalid, or
unenforceable clause or provision as may be possible and still be legal, valid,
and enforceable.
ARTICLE 36. NOTICES
Whenever in this Lease it shall be required or permitted that notice or
demand be given or served by either party to this Lease to or on the other, such
notice or demand shall be given or served in writing and delivered personally,
set by facsimile or forwarded by certified or registered mail, postage prepaid,
or recognized overnight courier, addressed as follows:
If to Landlord: Signature Center, G.P.
C/O CB ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Tenant: ▇▇▇▇▇ Background America
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Notice hereunder shall become effective upon (a) delivery in case of
personal delivery, (b) transmission with receipt confirmed in case of facsimile,
and (c) receipt or refusal in case of certified or registered mail.
Prior to the Commencement Date, the address for notices to Tenant shall be
the address set forth below its signature hereto; after the Commencement Date,
the address for notices to Tenant shall be as hereinabove set forth. Such
address may be changed from time to time by either party service notice as
provided above.
ARTICLE 37. OBLIGATIONS OF SUCCESSORS, PLURALITY, GENDER
Landlord and Tenant agree that all the provisions hereof are to be
construed as covenants and agreements as though the words imparting such
covenants were used in each paragraph hereof, and that, except as restricted by
the provisions hereof, shall bind and inure to the benefit of the parties
hereto, their respective heirs, legal representatives, successors, and assigns.
If the rights of Tenant hereunder are owned by two or more parties, or two or
more parties are designated herein as Tenant, then all such parties shall be
jointly and severally liable for the obligations of Tenant hereunder. Whenever
the singular or plural number, masculine or feminine or neuter gender is used
herein, it shall equal include the other.
ARTICLE 38. ENTIRE AGREEMENT
This Lease and any attached addenda or exhibits constitute the entire
agreement between Landlord and Tenant. No prior or contemporaneous written or
oral leases or representations shall be binding. This Lease shall not be
amended, changed, or extended except by written instrument signed by Landlord
and Tenant.
ARTICLE 39. PARAGRAPH CAPTIONS
Paragraph captions are for Landlord's and Tenant's convenience only, and
neither limit nor amplify the provisions of this Lease. Tenant agrees, at
Landlord's request, to execute a recordable Memorandum of this Lease.
ARTICLE 40. CHANGES
Should any mortgagee require a modification of this Lease, which
modification will not bring about any increased cost or expense to Tenant or
will in any other way substantially and adversely change the rights and
obligations of Tenant hereunder, then and in such event Tenant agrees that this
Lease may be so modified.
ARTICLE 41. AUTHORITY
All rights and remedies of Landlord under this Lease, or those which may
be provided by law, may be exercised by Landlord in its own name individually,
or in its name by its agent, and
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all legal proceedings for the enforcement of any such rights or remedies,
including distress for Rent, unlawful detainer, and any other legal or equitable
proceedings may be commenced and prosecuted to final judgment and be executed by
Landlord in its own name individually or in its name by its agent. Landlord and
Tenant each represent to the other that each has full power and authority to
execute this Lease and to make and perform the agreements herein contained, and
Tenant expressly stipulates that any rights or remedies available to Landlord,
either by the provisions of this lease or otherwise, may be enforced by Landlord
in its own name individually or in its name by its agent or principal.
ARTICLE 42. BROKERAGE
Tenant represents and warrants to Landlord that it has dealt only with CB
▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Broker") in negotiation of this Lease. Landlord shall make
payment of the brokerage fee due to Landlord's Broker pursuant to and in
accordance with a separate agreement between Landlord and Landlord's Broker.
Tenant's Broker shall look only to Landlord's Broker for any commision or fee
claimed by Tenant's Broker, and Landlord shall have no liability therefor.
Tenant hereby agrees to indemnify and hold Landlord and/or Landlord's agent
harmless of and from any and all damages, losses, costs, or expenses (including,
without limitation, all attorneys' fees and disbursements) by reason of any
claim of or liability to Tenant's Broker and any other broker or other person
claiming through Tenant and arising out of or in connection with the
negotiation, execution, and delivery of this Lease. Additionally, Tenant
acknowledges and agrees that Landlord and/or Landlord's agent shall have no
obligation for payment of any brokerage fee or similar compensation to any
person with whom Tenant has dealt or may in the future deal with respect to
leasing of any additional or expansion space in the Building or renewals or
extensions of this Lease.
ARTICLE 43. EXHIBITS
Exhibits A through F are attached hereto and incorporated herein for all
purposes and are hereby acknowledged by both parties to this Lease.
ARTICLE 44. APPURTENANCES
The Leased Premises include the right of ingress and egress thereto and
therefrom; however, Landlord reserves the right to make changes and alterations
to the Building, fixtures and equipment thereof, in the street entrances, doors,
halls, corridors, lobbies, passages, elevators, escalators, stairways, toilets
and other parts thereof which Landlord may deem necessary or desirable. Neither
this Lease nor any use by Tenant of the Building or any passage, door, tunnel,
concourse, plaza or any other area connecting the garages or other buildings
with the Building, shall give Tenant any right or easement of such use and the
use thereof may, without notice to Tenant, be regulated or discontinued at any
time and from time to time by Landlord without liability of any kind to Tenant
and without affecting the obligations of Tenant under this Lease.
ARTICLE 45. COUNTERCLAIM AND JURY
If Landlord shall acquire possession of the Leased Premises by summary
proceedings, or in any other lawful manner without judicial proceedings, it
shall be deemed a reentry within the meaning of that word as used in this Lease.
In the event that Landlord commences any summary proceedings or action for
nonpayment of rent or other charges provided for in this Lease, Tenant shall not
interpose any counterclaim of any nature or description in any such proceeding
or action. Tenant and Landlord both waive a trial by jury of any or all issues
arising in any action or proceeding between the parties hereto or their
successors, under or connected with this Lease, or any of its provisions.
ARTICLE 46. RECORDING
Tenant shall not record this Lease but will, at the request of Landlord,
execute a memorandum or notice thereof in recordable form satisfactory to both
Landlord and Tenant specifying the date of commencement and expiration of the
term of this Lease and other information required by statute. Either Landlord or
Tenant may then record said memorandum or notice of lease.
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ARTICLE 47. MORTGAGEE PROTECTION
Tenant agrees to give any Mortgagees and/or Trust Deed Holders, by
Registered Mail, a copy of any Notice of Default served upon 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 address of such
Mortgagees and/or Trust Deed Holders. Tenant further agrees that if Landlord
shall have failed to cure such default within the time provided for in this
Lease, then the Mortgagees and/or Trust Deed Holders shall have an additional
thirty (30) days within which to cure such default or if such default cannot be
cured within that time, then such additional time as may be necessary if within
such thirty (30) days, any Mortgagee 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.
ARTICLE 48. SHORING
If any excavation or construction is made adjacent to, upon or within the
Building, or any part thereof, Tenant shall afford to any and all persons
causing or authorized to cause such excavation or construction license to enter
upon the Leased Premises for the purpose of doing such work as such persons
shall deem necessary to preserve the Building or any portion thereof from injury
or damage and to support the same by proper foundations, braces and supports,
without any claim for damages or indemnity or abatement of rent, or of a
constructive or actual eviction of Tenant.
22
IN WITNESS WHEREOF, Landlord and Tenant, acting herein through duly
authorized individuals, have caused these presents to be executed in multiple
counterparts, each of which shall have the force and effect of an original on
this 1st day of April, 2001.
TENANT: KROLL BACKGROUND AMERICA, INC.
By: /s/
------------------------------
LANDLORD: SIGNATURE CENTER, G.P.
By: /s/
------------------------------
23
Table of Contents
Page
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ARTICLE 1. PREMISES.........................................................1
ARTICLE 2. TERM AND CONDITION OF LEASED PREMISES............................1
ARTICLE 3. USE, NUISANCE, OR HAZARD.........................................2
ARTICLE 4. RENT.............................................................2
ARTICLE 5. RENT ADJUSTMENT..................................................3
ARTICLE 6. SERVICES TO BE PROVIDED BY LANDLORD..............................4
ARTICLE 7. REPAIRS AND MAINTENANCE BY LANDLORD..............................5
ARTICLE 8. REPAIRS AND CARE OF BUILDING COMPLEX BY TENANT...................5
ARTICLE 9. TENANT'S EQUIPMENT AND INSTALLATIONS.............................6
ARTICLE 10. FORCE MAJEURE...................................................6
ARTICLE 11. MECHANICS' AND MATERIALMAN'S LIENS..............................6
ARTICLE 12. ARBITRATION.....................................................7
ARTICLE 13. INSURANCE.......................................................7
ARTICLE 14. QUIET ENJOYMENT.................................................8
ARTICLE 15. ALTERATIONS.....................................................8
ARTICLE 16. FURNITURE, FIXTURES, AND PERSONAL PROPERTY......................9
ARTICLE 17. TAXES..........................................................10
ARTICLE 18. ASSIGNMENT AND SUBLETTING......................................10
ARTICLE 19. FIRE AND CASUALTY..............................................11
ARTICLE 20. CONDEMNATION...................................................12
ARTICLE 21. HOLD HARMLESS..................................................12
ARTICLE 22. DEFAULT BY TENANT..............................................13
ARTICLE 23. LIEN FOR RENT..................................................16
ARTICLE 24. RIGHT TO RELOCATE..............................................17
ARTICLE 25. ATTORNEYS' FEES................................................17
ARTICLE 26. NON-WAIVER.....................................................17
ARTICLE 27. RULES AND REGULATIONS..........................................17
ARTICLE 28. ASSIGNMENT BY LANDLORD.........................................17
ARTICLE 29. LIABILITY OF LANDLORD..........................................17
ARTICLE 30. SUBORDINATION AND ATTORNMENT...................................18
ARTICLE 31. HOLDING OVER...................................................18
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Table of Contents
(continued)
Page
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ARTICLE 32. SIGNS..........................................................18
ARTICLE 33. HAZARDOUS SUBSTANCES...........................................19
ARTICLE 34. COMPLIANCE WITH LAWS AND OTHER REGULATIONS.....................19
ARTICLE 35. SEVERABILITY...................................................19
ARTICLE 36. NOTICES........................................................20
ARTICLE 37. OBLIGATIONS OF SUCCESSORS, PLURALITY, GENDER...................20
ARTICLE 38. ENTIRE AGREEMENT...............................................20
ARTICLE 39. PARAGRAPH CAPTIONS.............................................20
ARTICLE 40. CHANGES........................................................20
ARTICLE 41. AUTHORITY......................................................20
ARTICLE 42. BROKERAGE......................................................21
ARTICLE 43. EXHIBITS.......................................................21
ARTICLE 44. APPURTENANCES..................................................21
ARTICLE 45. COUNTERCLAIM AND JURY..........................................21
ARTICLE 46. RECORDING......................................................21
ARTICLE 47. MORTGAGEE PROTECTION...........................................22
ARTICLE 48. SHORING........................................................22
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