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EXHIBIT 10.1
PIEDMONT CENTER
THIS LEASE is made as of the 30th day of July, 1999, by and between
PIEDMONT OFFICE CENTER, INC., a Delaware corporation (herein called "Landlord"),
and NOVIENT, INC., a Georgia corporation (herein called "Tenant").
W I T N E S S E T H:
PREMISES
1. Landlord does hereby rent and lease to Tenant Suite 500
consisting of approximately 9,451 rentable square feet as shown outlined in red
on Exhibit "A" attached hereto and made a part hereof (herein called the
"Premises") in the building (herein called the "Building") known as Building
Seven, Piedmont Center, and situated at 3525 Piedmont Road, N.E., Atlanta,
Georgia 30305. No easements, including, without limitation, easements for light,
air, or view, are included in this Lease. Buildings 5-8 Piedmont Center,
together with its respective parking decks and is herein sometimes collectively
called the "Complex". The Complex contains approximately 490,000 rentable square
feet. For purposes of this Lease, the phrase "Piedmont Center" shall mean the
office complex located on Piedmont Road, Atlanta, Georgia, and commonly known as
Piedmont Center.
TERM
2. This Lease shall be for a term (herein called the "Term")
commencing on September 1, 1999 (herein called the "Commencement Date") and
ending on the last day of the calendar month which is five (5) years and zero
(0) months following the Commencement Date. Notwithstanding the foregoing, (a)
if Tenant takes occupancy of the Premises prior to the Commencement Date, then
the Term shall commence on the date of said occupancy; and (b) if Landlord does
not deliver to Tenant possession of the Premises on or before the Commencement
Date (and such delay in delivery of possession of the Premises is not
attributable to any failure of Tenant to perform fully and punctually Tenant's
obligations as set forth in this Lease), then the Term shall commence on the
earlier of the date Tenant takes possession of the Premises or the date the
Premises are available for occupancy by Tenant, as established by written notice
from Landlord before or after the Commencement Date; and the date set forth in
such notice shall conclusively establish the Commencement Date; and (c) if
Landlord does not deliver to Tenant possession of the Premises on or before the
Commencement Date (and such delay in delivery of possession of the Premises is
attributable to any failure of Tenant to perform fully and punctually Tenant's
obligations as set forth in this Lease), then the Term shall commence on the
Commencement Date. Upon Landlord's or Tenant's request, the other party agrees
to confirm in writing when the Commencement Date has occurred.
RENTAL
3. Tenant shall pay to Landlord (or to Landlord's designee as set
forth by written notice from Landlord to Tenant), without any prior demand,
offsets, or deductions, the sum of $207,921.96 per annum as fixed rent
(hereinafter, together with all adjustments as herein
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provided, called "Base Rental"), payable in equal installments of $17,326.83 per
month (subject to adjustments as herein provided) in advance, on the first day
of each calendar month during the Term. Base Rental, together with all
"additional rent" and other sums payable to Tenant as herein provided (herein
collectively called "Rent") shall be paid at the address below or at such other
place as Landlord may from time to time designate in writing to Tenant. In the
event the Term does not commence on the first day of a calendar month or end on
the last day of a calendar month, the Rent for such fractional month shall be
proportionately reduced. No payment by Tenant or receipt by Landlord of Rent
hereunder shall be deemed to be other than on account of the amount due, and no
endorsement or statement on any check or any letter accompanying any check or
payment of Rent shall be deemed an accord and satisfaction, and Landlord may
accept such check as payment without prejudice to Landlord's right to recover
the balance of such installment or payment of Rent or pursue any other remedies
available to Landlord. All Rent payable by Tenant shall be paid to Landlord at
the following address:
Suite 1274
75 Remittance Drive
Chicago, IL 60675-1274
Checks should be made payable to: Piedmont Center 5-8.
In addition to the foregoing, Tenant shall pay the following sums to
Landlord:
(a) [omitted]
(b) As used herein, the term "taxes" shall include every type of
tax, charge, or impost in the nature of or in lieu of ad valorem taxes assessed
against the Complex or upon the operation of the Complex, excepting only income
taxes imposed upon Landlord. In addition to Base Rental, Tenant agrees to pay,
as additional rent, Tenant's Share (as defined below in this Paragraph 3) of the
amount, if any, of any increase in taxes on the Complex for the applicable
calendar year over taxes on the Complex for the year 1999, prorated as may be
necessary based upon the portion of the Term occurring during the calendar year
involved. Landlord shall notify Tenant in writing of Tenant's pro rat share of
such increase in taxes, if any; and Tenant agrees to pay Landlord, within thirty
(30) days thereafter, Tenant's share as additional rent hereunder.
Notwithstanding anything to the contrary contained herein, prior to or promptly
after the beginning of each calendar year during the Term, Landlord may estimate
the total amount of taxes to be paid by Tenant during each such calendar year
and Tenant shall pay to Landlord one--twelfth (1/12) of such sum on the first
day of each calendar month during each such calendar year, or part thereof,
during the Term. Within a reasonable time after the end of each calendar year,
Landlord shall submit to Tenant a statement of the actual amount of taxes for
such calendar year, and the actual amount owed by Tenant, and within thirty (30)
days after receipt of such statement, Tenant shall pay any deficiency between
the actual amount owed and the estimates paid during such calendar year, or in
the event of overpayment, Landlord shall credit the amount of such overpayment
toward the next installment of Rent owed by Tenant or remit such overpayment to
Tenant if the Term has expired or has been terminated and no default exists
hereunder. The obligations of Tenant under this Paragraph 3.b. shall survive the
expiration or earlier termination of this Lease.
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(c) Tenant hereby covenants and agrees and shall be obligated to
pay to Landlord, in addition to and not in lieu of the other sums specified
herein, Tenant's Share (as defined below in this Paragraph 3) of the increase in
Operating Costs (herein defined) for each calendar year of the Term in excess of
the Initial Operating Costs (hereinafter defined). The Initial Operating Costs
shall be, for the purposes of this Lease, the actual Operating Costs for
calendar year 1999.
(i) The term Operating Costs shall mean all operating
expenses of the Complex, computed on an accrual basis and including all
expenses, cost, and disbursements of every kind and nature, which Landlord shall
pay or becomes obligated to pay, including, but not limited to, the following:
(1) Costs, wages, and salaries of all persons engaged
in the management, operation, repair, security, or maintenance of the Complex,
including, but not limited to, fringe benefits, taxes, insurance, and other
benefits relating thereto:
(2) All supplies and materials used in the operation
and maintenance of the Complex;
(3) Costs of water, sewage, electricity and other
utilities furnished in connection with the operation of the Complex;
(4) Cost of all service agreements and maintenance
for the Complex and the equipment therein, including, but not limited to, trash
removal, security services, alarm services, window cleaning, janitorial service,
HVAC maintenance, elevator maintenance, and grounds maintenance;
(5) Cost of all insurance relating to the Complex,
including, but not limited to, the cost of casualty and liability insurance
applicable to the Complex and Landlord's personal property used in connection
therewith;
(6) Any reasonable consultants' fees incurred with
respect to issues or concerns involving the Complex;
(7) Cost of repairs and general maintenance of the
interior and exterior of the Complex (including, but not limited to, light bulbs
and glass breakage; the redecorating, repainting, recarpeting and other such
work of any common areas; heating, ventilation and air conditioning equipment;
plumbing and electrical equipment; and elevators), parking areas, and
landscaping;
(8) A management fee and other expenses incurred for
the general operating and management of the Complex;
(9) Costs due to any capital expenditures incurred
(i) which have the effect of reducing or limiting Operating Costs of the
Complex, if such reduction or limitation insures to Tenant's benefit or (ii)
which may be required by governmental authority or by Landlord's insurance
carrier;
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(10) Legal and accounting fees and expenses
related to the operation of the Complex;
(11) Anything which could be classified as
an Operating Cost under generally accepted accounting principles, consistently
applied, but not specified or expressly set forth hereunder.
Excluded from Operating Costs area:
(1) Capital items (except those expenditures referred
to above);
(2) Leasing commissions;
(3) Specific costs billed to and paid by specific
tenants or other third parties;
(4) Depreciation;
(5) Principal, interest, and other costs directly
related to financing the Complex;
(6) The cost of any repairs or general maintenance
paid by the proceeds of insurance policies carried by Landlord on the Complex;
(7) Taxes.
(ii) On or about April 1 of each calendar year (or as soon
thereafter as practical), Landlord shall provide Tenant with a statement of the
Operating Costs for the immediately preceding calendar year, and Tenant shall
thereupon immediately pay Tenant's Share of Operating Costs in excess of the
Initial Operating Costs. Such Operating Costs for such preceding year in excess
of Initial Operating Costs shall be due and payable within thirty (30) days upon
Tenant's receipt of such statement. Notwithstanding anything to the contrary
contained herein, prior to or promptly after the beginning of each calendar year
during the Term, Landlord may estimate the total amount of Operating Costs to be
paid by Tenant during each such calendar year and Tenant shall pay to Landlord
one-twelfth (1/12) of such sum on the first day of each calendar month during
each such calendar year, or part thereof, during the Term. Within a reasonable
time after the end of each calendar year, Landlord shall submit to Tenant a
statement of the actual amount of Operating Costs for such calendar year, and
the actual amount owed by Tenant, and within thirty (30) days after receipt of
such statement, Tenant shall pay any deficiency between the actual amount owed
and the estimates paid during such calendar year, or in the event of
overpayment, Landlord shall credit the amount of such overpayment toward the
next installment of Base Rental and additional rent owed by Tenant or remit such
overpayment to Tenant if the Term has expired or has been terminated and no
default exists hereunder.
(iii) If this Lease commences at any time other than the
first day of a calendar year or terminates at any time other than the last day
of a calendar year, the amount of Operating Costs due from Tenant shall be
proportionately adjusted based on that portion of the year that this Lease was
in effect.
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(iv) Tenant's payment of Operating Costs shall not be
deemed payments of Base Rental under any governmental wage and price controls or
analogous governmental actions affecting the amount of Base Rental which
Landlord may charge Tenant for the Premises.
(v) The obligations of Tenant under this Paragraph 3.c.
shall survive the expiration or earlier termination of this Lease.
(d) For purposes of this Lease, the term "Tenant's Share"
shall be defined as the percentage determined by dividing the rentable square
feet of the Premises by the total rentable square feet in the Complex.
Initially, Tenant's Share shall equal 4.344%. In the event the rentable square
footage of the Premises or the Complex changes during the Term, Tenant's Share
shall be automatically adjusted to reflect said change.
USE
4. The Premises shall be used by Tenant for office and related
purposes and no other. The Premises shall not be used by Tenant for any illegal
purposes or in violation of any law or regulation of any governmental body or in
any manner to create any nuisance or trespass or in any manner which could
result in a cancellation of the insurance or an increase in the rate of
insurance on the Premises or in any manner which is not environmentally sound.
TENANT'S ACCEPTANCE
5. Except for the substantial completion of the work as may be
set forth in Exhibit "D" ("Leasehold Improvements") attached hereto, Tenant
accepts the Premises in their present condition and as suited for the use
intended by Tenant, and Landlord shall not be required to make any repairs or
improvements to the Premises. Taking possession of the Premises by Tenant shall
be conclusive evidence that Tenant has accepted the Premises in "as is"
condition, subject only to latent defects and the substantial completion of any
items covered in any punch list which is agreed upon in writing by Landlord and
Tenant within thirty (30) days after occupancy of the Premises by Tenant.
TENANT'S CARE; INSURANCE
6. All repairs to the Premises not required to be made by
Landlord under this Lease shall be made by Tenant, at Tenant's sole cost.
Without limiting the foregoing, Tenant shall repair all partitions and all glass
and plate glass (excluding windows and glass on the exterior of the Building
unless damage to the same has been caused by Tenant), and all equipment,
plumbing, and fixtures included within the Premises. If Tenant is insured for a
claim (or would have been insured for a claim had Tenant procured the insurance
required of Tenant by this Lease), Tenant shall be liable for and shall hold the
Landlord Entitles (as defined in Paragraph 32) harmless in respect of damage or
injury to the Premises, to the Complex, to the person or property of Tenant and
to the person or property of Landlord's other tenants or anyone else, if arising
in whole or in part out of or related to Tenant's occupancy of the Premises. If
Tenant is not insured for the claim described in the preceding sentence (and
Tenant is not required to insure such a claim under this Lease), Tenant shall be
liable for and shall hold the
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Landlord Entitles harmless in respect of damage or injury to the Premises, to
the Complex, to the person or property of Tenant and to the person or property
of Landlord's other tenants or anyone else, if arising in whole or in part out
of or related to Tenant's occupancy of the Premises, except to the extent such
damage or injury is caused by Landlord's negligence. Tenant shall at once report
in writing to Landlord any defective condition known to Tenant which Landlord is
required to repair, and Tenant shall be responsible for direct damages caused by
Tenant's failure to report such condition. All personal property owned by Tenant
or by any of Tenant's employees or visitors which is located upon the Premises
or Complex shall be at the risk of Tenant only, and Tenant shall be liable for
all damages resulting from the use and installation thereof, and the Landlord
Entities shall not be liable for any damages resulting from the use and
installation thereof, and the Landlord Entities shall not be liable for any
damage thereto or theft thereof or any other damages resulting from the use or
installation thereof. Provided that Tenant is not responsible for liabilities
resulting from the gross negligence or willful misconduct of Landlord or its
employees or agents. The terms and conditions of this Paragraph shall survive a
termination or expiration of this Lease as to matters occurring or arising prior
to the date of such termination or expiration.
(b) (i) Tenant acknowledges and agrees that Landlord has an
insurable interest in Tenant's leasehold improvements. Tenant shall keep in
force throughout the Term: (1) a Commercial General Liability insurance policy,
such insurance to be written on an occurrence basis (not a claims made basis),
with a limit of not less than $1,000,000.00 per occurrence and not less than
$2,000,000.00 in the annual aggregate, or such larger amount as Landlord may
prudently require from time to time, covering bodily injury and property damage
liability and $1,000,000 products/completed operations aggregate; (2) Business
Auto Liability covering owned, non-owned and hired vehicles with a limit of not
less than $1,000,000 per accident; (3) insurance protecting against liability
under Worker's Compensation Laws with limits at least as required by statute;
(4) Employers Liability with limits of $500,000 each accident, $500,000 disease
policy limit, $500,000 disease-each employee; (5) All Risk or Special Form
covering protecting Tenant against loss of or damage to Tenant's alterations,
additions, improvements, carpeting, floor coverings, panelings, decorations,
fixtures, inventory and other business personal property situated in or about
the Premises to the full replacement value of the property so insured; and (6)
Business Interruption Insurance with limit of liability representing loss of at
least approximately six months of income.
(ii) Each of the aforesaid policies shall (1) be provided
at Tenant's expense; (2) name the Landlord, the building management company and
Landlord's lender, if any, as additional insureds; (3) be issued by an insurance
company with a minimum Best's ratings of "A:VII" during the Term; and (4)
provide that said insurance shall not be canceled unless thirty (30) days prior
written notice (ten days for non-payment of premium) shall have been given to
Landlord; and said policy or policies or certificates thereof shall be delivered
to Landlord by Tenant upon the Commencement Date and at least thirty (30) days
prior to each renewal of said insurance.
(iii) Whenever Tenant shall undertake any alterations,
additions or improvements in, to or about the Premises ("Work") the aforesaid
insurance protection must extend to and include injuries to persons and damage
to property arising in connection with such Work, without limitation including
liability under any applicable structural work act, and such
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other insurance as Landlord shall require; and the policies of or certificates
evidencing such insurance must be delivered to Landlord prior to the
commencement of any such Work.
(iv) So long as their respective insurers to permit,
Tenant and Landlord hereby mutually waive their respective rights of recovery
against each other for any loss insured by fire, extended coverage, All Risks or
other insurance now or hereafter existing for the benefit of the respective
party but only to the extent of the net insurance proceeds payable under such
policies. Each party shall obtain any special endorsements required by their
insurer to evidence compliance with the aforementioned waiver.
INSPECTIONS
7. Upon prior reasonable notice, except in the event of an
emergency, Landlord may enter the Premises at reasonable hours: to exhibit same
to prospective purchasers, mortgagees or tenants; to inspect the Premises to see
that Tenant is complying with all Tenant's obligations hereunder; and to make
repairs required of Landlord under the terms hereof or repairs or modifications
to any adjoining space. Notwithstanding anything in Section 7 of the Lease and
Paragraph 10 of the Rules and Regulations to the contrary Landlord shall take
all reasonable actions to protect and maintain the confidentiality of Tenant's
confidential information and trade secrets and Landlord shall prevent any access
by Landlord or its agents and contractors to the Premises from interfering with
the operations of Tenant's business.
DEFAULT; REMEDIES
8. Without limiting the other provisions of this Lease, the
occurrence of any of the following shall constitute an "event of default" under
this Lease: (a) any Rent is not paid within five (5) days after written notice
by Landlord to Tenant that the Rent is due and unpaid; or (b) the Premises shall
be deserted or vacated at a time that Tenant is in default for failure to pay
rent due herein; or (c) Tenant shall fail to comply with any term, provision,
condition or covenant of this Lease, other than the payment of Rent, or any of
the Rules and Regulations now or hereafter established for the government of the
Building and shall not cure such failure within fifteen (15) days after written
notice to Tenant of such failure to comply; or (d) any petition is filed by
Tenant under any section or chapter of the National Bankruptcy Act, as amended,
or any petition is filed against Tenant under said Act and is not discharged
within sixty (60) days, provided that the institution of an involuntary
bankruptcy petition against Tenant shall not constitute a default or event of
default hereunder unless that action is not dismissed within ninety (90) days
after filing; or (e) Tenant shall become insolvent or make a transfer in fraud
of creditors; or (f) Tenant shall make an assignment for benefit of creditors;
or (g) a receiver is appointed for a substantial part of the assets of Tenant;
or (h) the usufruct interest of Tenant or any portion thereof is levied on under
execution. Notwithstanding any provision for notice and cure afforded Tenant by
virtue of this paragraph, Landlord shall have no obligation to notify Tenant of
any violations by Tenant of the terms of this Lease on more than two (2)
occasions during any twelve month period nor on more than five (5) occasions
during the Term, and an event of default shall be deemed to have occurred
hereunder in such circumstances without the necessity of any prior notice by
Landlord or opportunity to cure for Tenant.
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Upon the occurrence of an event of default, in addition to and
not in limitation of any other right of remedy available to Landlord at law or
in equity, Landlord shall have the option of any time thereafter to:
(1) Terminate this Lease (but Tenant shall nevertheless
remain liable for damages as hereinafter set forth), in which event Tenant shall
immediately surrender the Premises to Landlord but, if Tenant shall fail to so
do, Landlord may, without further notice and without prejudice to any other
remedy Landlord may have for possession or arrearages in Rent, enter upon the
Premises and expel or remove Tenant and Tenant's effects, by force if necessary,
without being liable to prosecution or any claim for damages therefor. Upon any
such termination Tenant shall pay to Landlord all Rent due and payable to the
date upon which this Lease shall have been terminated, and Landlord shall be
entitled to recover from Tenant, and Tenant shall pay to Landlord, on demand, as
and for liquidated and agreed final damages and not as penalty, a sum equal to
the amount by which the Base Rental and additional rent payable for the period
which otherwise would have constituted the unexpired portion of the Term
(conclusively presuming the additional rent to be the same as was payable for
the year immediately preceding such termination) exceeds the fair and reasonable
rental value of the Premises for the same period, both discounted at the rate of
seven percent per annum to present worth. In determining the fair and reasonable
rental value of the Premises, the rental realized by any relet, if such
reletting be accomplished by Landlord acting in good faith within a reasonable
time after termination of this Lease or after Landlord regains possession of the
Premises, shall be deemed prima facie to be the rental value, provided the new
lease is for a term of at least one (1) year and the new Tenant is a bona fide
third party. Furthermore, in determining the fair and reasonable rental value of
the Premises, all factors deemed relevant by Landlord should be considered as of
the time Landlord seeks to enforce such remedy, including, without limitation,
the length of time remaining in the Term, the market conditions in the general
area in which the Building is located, the likelihood of reletting the Premises
for a period of time equal to the remainder of the Term, the net effective
rental rates (taking into account all concessions) then being obtained for space
of similar type and size in similar buildings in the general area in which the
Building is located, vacancy levels in buildings in the general area in which
the Building is located, the anticipated duration of the period of time the
Premises will be unoccupied prior to reletting, the anticipated cost of
reletting, the then current levels of new construction that will be completed
during the remainder of the Term, and the degree to which such new construction
will likely affect vacancy and rental rates in buildings in the general area in
which the Building is located. Landlord and Tenant agree that it is difficult or
impossible to determine the actual damages Landlord will suffer from Tenant's
default hereunder and that the parties intend to provide for damages, not a
penalty, and that the agreed upon liquidated damages are fair and just and a
reasonable pre-estimate of such damages, all in accordance with O.C.G.A. Section
13-6-7.
(2) Re-enter the Premises, without notice, either by
summary proceedings or by any other action or proceeding permitted by law
(without being liable for any claim for damages therefor), and repossess the
Premises and dispossess Tenant and any other persons from the Premises. Landlord
at any time thereafter may relet the Premises, or any part thereof, in the name
of Landlord or as agent for Tenant, for a term or terms which may, at Landlord's
option, be less than or exceed the period of the remainder of the Term, and at
such rent or rental or upon such other conditions, which may include concessions
as Landlord, in its sole reasonable discretion, shall determine. Landlord shall
receive the rents from such reletting and shall apply
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the same, first, to pay such expenses as Landlord may have incurred in
connection with reentering, ejecting, removing, dispossessing, reletting,
altering, repairing, redecorating, subdividing, or otherwise preparing the
Premises for reletting, including without limitation brokerage and attorneys'
fees and expenses actually incurred; second, to the payment of any indebtedness
other than Rent charges and other sums due hereunder from Tenant to Landlord,
and the residue, if any, shall apply to the fulfillment of the terms, covenants
and conditions of Tenant hereunder, and Tenant hereby waives all claims to the
surplus, if any. Tenant shall be, and hereby agrees to be, liable for and to pay
Landlord any deficiency between the Rents, charges and other sums reserved
hereunder (conclusively presuming that additional rent is the same as payable
for the year immediately preceding such re-entry) and the net rentals, as
aforesaid, or relet, if any, for each month of the period which would otherwise
have constituted the balance of the Term. Tenant hereby agrees to pay such
deficiency in monthly installments on the date specified in this Lease for the
payment of Base Rental, and any suit or proceeding brought to collect a
deficiency for any month shall not prejudice or preclude in any way the right of
Landlord to collect a deficiency for any subsequent month by any similar suit or
proceeding. Landlord agrees to act in good faith to relet the Premises. Landlord
shall in no event be liable in any manner whatsoever for the failure to relet
the Premises or, in the event of such reletting, for failure to collect the
rents reserved thereunder. No such re-entry or taking possession of the Premises
by Landlord shall be construed as an election on its part to terminate this
Lease unless Landlord gives written notice to Tenant of such intention to so
terminate this Lease.
(3) As agent for Tenant, Landlord, without thereby
waiving such default and without liability to Tenant in connection therewith,
may, but shall not be obligated to, cure any default of Tenant in the
performance by Tenant of any of the terms of this Lease on Tenant's part to be
performed. Landlord may enter the Premises at any time to cure any default
without any liability to Tenant. Tenant shall reimburse Landlord immediately
upon demand for any expenses which Landlord may incur in effecting compliance
with this Lease on behalf of Tenant.
(4) [omitted]
PERSONALTY OF TENANT
9. If Tenant shall not remove all its effects from said Premises
at the expiration or termination of this Lease, Landlord may, at its option,
remove all or part of said effects in any manner that Landlord shall choose and
store the same without liability to Tenant for loss thereof, and Tenant shall
reimburse Landlord on demand for all reasonable expenses incurred in such
removal and also storage of said effects. Notwithstanding any changes to
paragraph 9, Landlord shall retain its statutory rights provided under Georgia
law.
POSSESSION
10. If this Lease is executed before the Premises become ready for
occupancy and Landlord cannot deliver possession of the Premises by the time the
Term is fixed herein to begin, this Lease shall not be void or voidable (except
as hereinbelow provided) and Tenant waives any claim for damages due to such
delay. In the event Landlord fails to deliver the Premises to Tenant for
occupancy before ninety (90) days after the Commencement Date due to reasons
other than the fault of Tenant or circumstances beyond the reasonable control of
Landlord, then
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Tenant shall have the right and option to terminate this Lease as Tenant's sole
and exclusive remedy against Landlord.
SERVICES
11. Provided Tenant has not abandoned the Premises and there
exists no event of default on behalf of Tenant, Landlord shall furnish to the
Premises the following services in the following amounts:
(a) Janitorial services on Monday through Friday, but
excepting New Year's Day, Memorial Day, July 4th, Labor Day, Thanksgiving Day
and the Friday following Thanksgiving Day, and Christmas Day (the "Holidays");
(b) Electricity in the Premises on a level suitable as of
the date of this Lease for normal office use, including usual and normal small
office machines and similar equipment using 110 volt current, and lighting of
the Premises to building standard light levels produced by building standard
fluorescent lighting fixtures (Tenant being obligated to pay for replacement of
all light bulbs excluding fluorescent tubes); which shall be the responsibility
of Landlord.
(c) Seasonal air conditioning and heating on Monday
through Friday, excluding the Holidays, from 8:00 A.M. to 6:00 P.M. and
Saturdays from 8:00 A.M. to 12:00 P.M.
Landlord reserves the right to prohibit installation within
the Premises of equipment using electricity in amounts greater than the amounts
provided, including, but not limited to, non-standard lighting, electric
heaters, air conditioners, data processing equipment, computer and allied
equipment components and duplicating equipment, telephone and telecommunication
equipment, stoves, microwaves, refrigerators and vending machines.
In no event shall Tenant's use of electric current exceed the
capacity of existing feeders to the Building, risers, wiring installations or
other facilities which serve utilities to the Premises. Landlord further
reserves the right to prohibit the installation of any additional equipment
(including, without limitation, the equipment described above, air cleaners and
exchangers, water filtration systems and devices, sinks, and water heaters)
unless and until arrangements are made by Tenant, acceptable to Landlord, to
install such additional equipment and to install supplementary air conditioning
equipment (including any submetering of the same) on the Premises at Tenant's
cost and expense to support such additional equipment and the use thereof. Any
cost of operation and maintenance of such additional equipment or supplementary
air conditioning services incurred by Landlord shall be paid by Tenant to
Landlord as additional rent on the monthly rental payment date set forth in this
Lease for Base Rental. Tenant shall be solely responsible for all damages to
Tenant, its employees, guest, invitees, officers, and agents and to the Premises
and to the Building and other tenants of the Building which result, directly or
indirectly, from the installation or use of the additional equipment abovesaid.
Should Tenant desire heating or air conditioning at times when such services are
not furnished by Landlord under the terms of this Lease, Landlord will furnish
such services as requested by Tenant upon reasonable advance written notice from
Tenant, in a format designated by Landlord, and Tenant shall pay to Landlord the
then currently established charges for such services as additional rent
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on demand. Landlord shall not be liable for any damages directly or indirectly
resulting from the installation, use, or interruption of use of utilities or the
furnishing of services referred to in this paragraph where such interruption
results from circumstances beyond Landlord's reasonable control or from
interruptions made necessary by repairs and maintenance being undertaken by
Landlord. Notwithstanding any other term hereof to the contrary, Landlord shall
have no obligation to service, maintain, or repair any such additional
equipment. Tenant agrees to service, maintain, and repair all such additional
equipment.
SUBLETTING AND ASSIGNMENTS
12. Tenant shall not voluntarily, involuntarily, or by operation
of law assign, transfer, hypothecate, or otherwise encumber this Lease or any
interest herein and shall not sublet or permit the use by others of the Premises
or any part thereof without first obtaining in each instance Landlord's prior,
written consent, which consent Landlord shall be entitled to withhold in its
sole discretion. Landlord's consent to one assignment, sublease, transfer, or
hypothecation shall not be deemed consent to any other or further assignment,
sublease, transfer, or hypothecation. Any such assignment, sublease, transfer,
or hypothecation without Landlord's prior, written consent shall be void and
shall constitute an immediate event of default under this Lease. No acceptance
by Landlord of any Rent or any other sum of money from any assignee, subtenant
or other category of transferee shall release Tenant from any of its obligations
hereunder or be deemed to constitute Landlord's consent to any assignment,
sublease, transfer, or hypothecation. In the event Tenant shall desire to assign
this Lease or sublet the Premises or any part thereof, if Tenant is not then in
default under this Lease, Tenant shall give Landlord written notice at least
forty-five (45) days in advance of the date on which Tenant desires to make such
assignment or sublease, which notice shall specify: (a) the name and business of
the proposed assignee or subtenant, (b) reasonably detailed character and
financial references for the proposed assignee or subtenant (including a recent
certified financial statement), (c) the amount and location of space in the
Premises affected, (d) the proposed effective date and duration of the
subletting or assignment, (e) the proposed rental and all other consideration to
be paid to Tenant by such subtenant or assignee, and (f) the extent to which
parking utilization may be adversely affected by such assignee or subtenant and
their employees, guests, and invitees. Landlord shall then have a period of
thirty (30) days following receipt of such notice within which to notify Tenant
in writing that Landlord elects, at its option: (1) to terminate this Lease as
to the space so affected as of the date so specified by Tenant, in which event
Tenant will on the proposed commencement date in the sublease, surrender to
Landlord possession of the affected space and thereafter be relieved of all
further obligations to pay Rent hereunder as to such space; or (2) to permit
Tenant to assign or sublet such space, in which event any rent payable by
subtenant to Tenant in excess of the rental rate of this Lease, net of costs
associated with subleasing the premises including but not limited to free rent
and commission, shall be deemed additional rent owed by Tenant to Landlord under
this Lease in the same manner that Tenant pays Base Rental hereunder and in
addition thereto (similarly, any sums payable by any proposed assignee to Tenant
in consideration of an assignment of Tenant's interest in this Lease which are
properly allocable to such assignment [as determined by Landlord in its sole
discretion based upon reasonable attribution methods] shall be payable by Tenant
to Landlord as additional rent and in consideration of Landlord's consent to
such assignment); or (3) to withhold consent to Tenant's assignment or sublease
of such space and to continue this Lease in full force and effect as to the
entire Premises. If Landlord shall elect to terminate this Lease as aforesaid,
Tenant shall notify
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Landlord in writing within ten (10) days thereafter of Tenant's intention to
either refrain from such assignment, subletting, or transfer or to accept the
termination of this Lease. If Tenant advises Landlord it intends to refrain from
such assignment, subletting, or transfer, then Landlord's right to terminate
this Lease as aforesaid shall be null and void in such instance. If Tenant fails
to so notify Landlord within said 10-day period, then Tenant will be deemed to
have accepted such termination of this Lease; and, upon any such termination,
Landlord shall have the right to enter into a direct Lease with Tenant's
proposed assignee, subtenant, or other transferee. In no event whatsoever, shall
(x) Tenant sublet, assign, or otherwise endeavor to transfer any interest of
Tenant in this Lease to any other existing tenant of space in Piedmont Center or
to any person or party or affiliate thereof which has been a tenant of space in
Piedmont Center within the preceding six (6) months, (y) Tenant communicate, in
writing, in any way the availability of all or any part of the Premises at a
rental rate which is less than the rate for which Landlord is then offering any
other space in the Building or the Complex, or (z) any advertisement or other
publication for subletting or assignment state the name (as distinguished from
the address) of the Building. Notwithstanding the giving by Landlord of its
consent to any assignment or sublease with respect to the Premises, no assignee
or sublessee may exercise any expansion option, right of first refusal option,
renewal, or extension option under this Lease except in accordance with a
separate written agreement entered into directly between such assignee or
sublessee and Landlord. Notwithstanding the giving by Landlord of its consent to
any assignment or sublease or any language contained in any such assignment of
sublease to the contrary, Tenant shall not be relieved of any of Tenant's
obligations or covenants under this Lease, and Tenant shall remain fully liable
hereunder. Tenant agrees to pay to Landlord, on demand, reasonable costs
(including, without limitation, attorneys' fees and expenses) incurred by
Landlord in connection with any request by Tenant for Landlord to consent to any
assignment or subletting by Tenant not to exceed $700.00 per request. Any
transfer after the date hereof, whether to one or more persons or entities and
whether at one or more different times, of a controlling interest in Tenant
(regardless whether Tenant is a corporation, partnership, or other entity),
whether voluntarily, by operation of law, or otherwise, shall be deemed an
assignment of this Lease within the meaning of this Paragraph 12.
Notwithstanding any other term or provision hereof, if Landlord consents to any
assignment or subletting of this Lease, Tenant shall have the sole obligation to
remove or cause to be removed any Hazardous Substances (as defined below)
required to be removed because of the assignee's or subtenant's renovations or
improvements of intended use of the Premises; and Landlord shall have no
responsibility therefor.
DESTRUCTION OR DAMAGE
13. (a) In the event the Premises or the Building are damaged
by fire or other cause and in Landlord's reasonable estimation such damage can
be materially restored within one hundred fifty (150) days, Landlord shall
forthwith repair the same and this Lease shall remain in full force and effect,
except that Tenant shall be entitled to a proportionate abatement in Rent from
the date of such damage. Such abatement of Rent shall be made pro rata in
accordance with the extent to which the damage and the making of such repairs
shall interfere with the use and occupancy by Tenant of the Premises from time
to time. Within forty-five (45) days from the date of such damage, Landlord
shall notify Tenant, in writing, of Landlord's reasonable estimation of the
length of time within which material restoration can be made, and Landlord's
determination shall be binding on Tenant. For purposes of this Lease, the
Building or Premises shall be deemed "materially restored" if they are in such
condition as would not
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prevent or materially interfere with Tenant's use of the Premises for the
purpose for which it was being used immediately before such damage.
(b) If such repairs cannot, in Landlord's reasonable
estimation, be made within one hundred fifty (150) days, Landlord and Tenant
shall each have the option of giving the other, at any time within sixty (60)
days after such damage, notice terminating this Lease as of the date of such
damage. In the event of the giving of such notice, this Lease shall expire and
all interest of Tenant in the Premises shall terminate as of the date of such
damage as if such date had been originally fixed in this Lease for the
expiration of the Term. In the event that neither Landlord nor Tenant exercises
its option to terminate this Lease, then Landlord shall repair or restore such
damage, this Lease continuing in full force and effect, and the Rent hereunder
shall be proportionately abated as provided in Paragraph 13(a).
(c) Landlord shall not be required to repair or replace
any damage or loss by or from fire or other cause to any panelings, decorations,
partitions, additions, railings, ceilings, floor coverings, office fixtures or
any other property or improvements installed on the Premises or belonging to
Tenant but in such instance, Landlord shall be obligated to repair and restore
all other portions of the Premises, including all walls, wall coverings,
carpets, ceilings, electrical, heating, ventilating, and air conditioning
equipment and other utility services, connections and wiring previously located
in the Premises. Any insurance which may be carried by Landlord or Tenant
against loss or damage to the Building or Premises shall be for the sole benefit
of the party carrying such insurance and under its sole control.
(d) In the event that Landlord should fail to complete
such repairs and material restoration within sixty (60) days after the date
estimated by Landlord therefor as extended by this Paragraph 13, Tenant may, at
its option and as it sole remedy, terminate this Lease by delivering written
notice to Landlord, within fifteen (15) days after the expiration of said period
of time whereupon the Lease shall end on the date of such notice or such later
date fixed in such notice as if the date of such notice was the date originally
fixed in this Lease for the expiration of the Term; provided, however, that if
construction is delayed because of changes, deletions or additions in
construction requested by Tenant, strikes, lockouts, casualties, Acts of God,
war, material or labor shortages, government regulation or control or other
causes beyond the reasonable control of Landlord, the period for restoration,
repair or rebuilding shall be extended for the amount of time Landlord is so
delayed.
(e) Notwithstanding anything to the contrary contained in
this Paragraph 13: (i) Landlord shall not have any obligation whatsoever to
repair, reconstruct, or restore the Premises when the damages resulting from any
casualty covered by the provisions of this Paragraph 13 occur during the last
twelve (12) months of the Term or any extension thereof, or if the damages are
not covered by Landlord's insurance, but if Landlord determines not to repair
such damages Landlord shall notify Tenant and if such damages shall render any
material portion of the Premises untenantable, Tenant shall have the right to
terminate this Lease by notice to Landlord within fifteen (15) days after
receipt of Landlord's notice, and (ii) in the event the holder of any
indebtedness secured by a mortgage, deed of trust, security deed or other
security instrument covering the Premises or Building requires that any
insurance proceeds be applied to such indebtedness, then Landlord shall have the
right to terminate this Lease by delivering written notice of termination to
Tenant within fifteen (15) days after such requirement is made
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by any such holder, whereupon this Lease shall end on the date of such damage as
if the date of such damage were the date originally fixed in this Lease for the
expiration of the Term.
(f) In the event of any damage or destruction to the
Building or Premises by any peril covered by the provisions of this Paragraph
15, it shall be Tenant's responsibility to properly secure the Premises and upon
notice from Landlord to remove forthwith, at its sole cost and expense, such
portion of all of the property belonging to Tenant or its licensees from such
portion or all of the Building or Premises as Landlord shall request.
CONDEMNATIONS
14. If the whole or any material part of the Premises shall be
taken or condemned by any competent authority, then the Term shall cease and
terminate from the date when the possession of the part so taken shall be
required for such use or purpose, and the entire amount of the condemnation
award shall be paid to Landlord (excepting only any portion of such award
designated for moving expenses). If the whole or any material part of the
Building shall be taken or condemned by any competent authority (regardless of
whether or not any portion of the Premises shall be so taken or condemned),
Landlord shall have the right to terminate this Lease upon notice to Tenant.
ALTERATION AND IMPROVEMENTS
15. Tenant will make no alterations in, or additions to, the
Premises without first obtaining Landlord's written consent. All such
alterations shall be made in accordance with all governmental laws, ordinances,
rules and regulations. All erections, additions, fixtures, and improvements,
(excluding, without limitation, telephone and telecommunication equipment and
cabling) (collectively, the "alterations") whether temporary or permanent in
character (except only movable office furniture and equipment of Tenant), made
in or upon the Premises, either by Tenant or Landlord, shall be Landlord's
property, and shall remain upon said Premises at the termination of the Term by
lapse of time or otherwise, without compensation to Tenant. At Landlord's
election, Tenant shall, at its sole expense, cause to be removed from the
Premises at the end of the Term all such alterations, provided Landlord notifies
Tenant of its duty to remove such alterations at the time of Landlord's consent.
As a condition to granting consent to the making of such alteration or
additions, Landlord may impose such requirements as Landlord may in its sole
reasonable discretion deem reasonable or necessary including, by way of
illustration and not limitation, requirements as to the manner in which or time
at which such work is performed, the design of such alterations, the quality of
materials and workmanship utilized in making such alterations, the selection of
the contractor who shall perform the work required to complete such alterations,
and the providing for all lien waivers and evidence of insurance with respect to
each contractor employed by Tenant. If, in connection with the initial build-out
of the Premises for Tenant or in connection with any subsequent alterations or
additions to the Premises, Tenant uses a contractor other than Landlord or its
affiliate, or an affiliate of PC Associates, then Landlord shall be paid a
supervisory fee equal to five percent (5%) of the total of the construction
contract with Tenant's third-party contractor or contractors. Said fee shall be
due and payable as and when payments are made under Tenant's construction
contract or contracts. Tenant shall pay, in addition to any sums due pursuant to
Paragraph 3 herein, any increase in real estate taxes attributable to any such
alteration for so long, during the Term, as
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<PAGE> 15
such increase is ascertainable; at Landlord's election said sums shall be paid
in the same way as sums due under Paragraph 3(b) herein.
ATTORNEY'S FEES; LATE PAYMENTS
16. In any action involving a dispute arising from the obligations
of the parties hereto the prevailing party shall be entitled to recover
reasonable actual attorneys' fees from the other party. In connection with any
installment of Rent not paid when due, Landlord shall be entitled to charge
Tenant either (a) interest on the Rent due at the rate of the lesser of (i)
fifteen percent (15%) per annum or (ii) the maximum rate allowed by law, after
as well as before judgment, from the due date until paid, or (b) a per diem fee
of $25.00 for each day after the due date until paid. Tenant agrees that the
actual loss to Landlord because of Tenant's failure to pay when due is not
readily calculable and that the foregoing is intended to provide liquidated
damages, not a penalty, and that the foregoing is a reasonable pre-estimate of
such loss.
RULES AND REGULATIONS
17. The rules and regulations attached to this Lease as Exhibit
"B" shall be and are hereby made an integral part of this Lease. Tenant, its
contractors, servants, and agents, will perform and abide by said rules and
regulations and any amendments or additions to said rules and regulations as may
be made from time to time by Landlord, upon notice to Tenant, for the safety,
care, cleanliness, and preservation of good order in the Building. Landlord
shall not be responsible to Tenant for the non-performance by any other tenant
or occupant of the Complex of any such rules and regulations.
NO ESTATE
18. This contract shall create the relationship of landlord and
tenant between Landlord and Tenant; no estate shall pass out of Landlord; Tenant
has only a usufruct, not subject to levy and sale.
HOLDING OVER
19. If Tenant remains in possession of the Premises after
expiration or termination of the Term, with Landlord's acquiescence and without
any distinct agreement of the parties, then Tenant by virtue of this paragraph
shall become a tenant from month-to-month at a monthly base rent, payable in
advance, in an amount equal to 150% of the amount of Base Rent payable for the
last month of the Term and otherwise subject to all of the conditions and
covenants of this Lease as though this Lease had originally been a
month-to-month tenancy. In no event shall there be a renewal of this Lease by
operation of law, and any such month-to-month tenancy may be terminated by
either Landlord or Tenant by giving thirty (30) days written notice to the
other. Notwithstanding the foregoing, if Tenant shall remain in possession of
the Premises as a holdover tenant without the acquiescence of Landlord or
otherwise in violation of the terms and provisions of this Lease, in addition to
any other rights and remedies available to Landlord, Landlord shall have the
immediate right to re-enter and take possession of the Premises.
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<PAGE> 16
SURRENDER OF PREMISES
20. At the expiration or termination of this Lease, Tenant shall
surrender the Premises (and all keys and/or access control keys and devices to
the Premises) to Landlord in good condition, natural wear and tear only
excepted. Any property, including, without limitation, cable communication
equipment, owned or leased by Tenant left upon the Premises at the termination
of this Lease shall be deemed abandoned by Tenant, and Landlord may thereafter
use or dispose of such property as Landlord sees fit without obligation to
Tenant. Tenant shall reimburse Landlord on demand for Landlord's costs and
expenses in removing, storing and disposing of such property, and Tenant shall
further indemnify and hold Landlord free and harmless from any liability, claim
or expense suffered or incurred by Landlord in connection with the removal or
disposal of such property. This Paragraph 20 shall expressly survive the
termination or expiration of this Lease, but only if such property remains on
the Premises for five (5) business days after notice is given by Landlord that
the property is subject to removal and loss. Notice to be given at the addresses
specified in paragraph 21 of the Lease.
NOTICES
21. Notices required or permitted hereunder or given to Tenant
pursuant to this Lease of the obligations hereunder shall be given by mailing
the notice addressed to the address set forth below by certified mail return
receipt requested postage prepaid or overnight courier and such notice shall be
deemed to have been given hereunder three (3) business days after the notice is
deposited into the U.S. Mail or delivered by courier:
Novient, Inc.
Seven Piedmont Center
Suite 500
Atlanta, Georgia 30305
Attn: Mark Kopcha
With a copy to:
John C. Yates
Morris, Manning & Martin
3343 Peachtree Road, N.E., Suite 1600
Atlanta, Georgia 30326
Any notice given by Tenant to Landlord under this Lease shall
be in writing and sent by certified mail, return receipt requested, effective
only when received by Landlord at Landlord's address herein below set forth.
Unless Landlord otherwise notifies Tenant, any notice given by Tenant to
Landlord shall be delivered to Landlord at the following address:
Piedmont Center, Inc.
Suite 510, Five Piedmont Center
Atlanta, Georgia 30305
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With a copy to:
Habersham Management Group
Suite 515, Two Piedmont Center
Atlanta, Georgia 30305
Either party may, by written notice to the other, specify a
different address for notice purposes, except that Landlord may in any event use
the Premises as proper and sufficient for service of dispossessory or disraint
proceedings and notice of an event of default.
PARTIES
22. "Landlord" as used in this Lease shall include Landlord, its
representatives, assigns and successors-in-title to the Premises. It is
understood and agreed that the term "Landlord", as used in this Lease, means
only the owner (or the tenant under a superior lease) from time to time of the
Building so that in the event of any sale, Landlord as transferor shall be
relieved of all covenants and obligation of Landlord hereunder, and Tenant shall
attorn to any successor Landlord hereunder. "Tenant" shall include Tenant, its
representatives and, if this Lease shall be validly assigned or sublet, shall
include also Tenant's assignees or subtenants, as to the Premises covered by
such assignment or sublease. "Landlord" and "Tenant" include male and female,
singular and plural, corporation, partnership, other entity, or individual, as
may fit the particular parties.
CHANGE OF PREMISES
23. [OMITTED]
SECURITY DEPOSIT
24. Tenant shall deposit the amount of $17,326.83 (the "Security
Deposit") with Landlord upon the execution of this Lease. The acceptance by
Landlord of the Security Deposit paid by Tenant shall not render this Lease
effective unless and until Landlord shall have executed and delivered to Tenant
a fully executed copy of this Lease. Said sum shall be held by Landlord as
security for the faithful performance by Tenant of all the terms, covenants and
conditions of this Lease to be kept and performed by Tenant and not as an
advance rental deposit or as a measure of Landlord's damage in case of Tenant's
default. If Tenant defaults with respect to any provision of this Lease,
Landlord may use any part of the Security Deposit for the payment of any rent or
any other sum in default, or for the payment of any amount which Landlord may
spend or become obligated to spend by reason of Tenant's default, or to
compensate Landlord for any other loss or damage which Landlord may suffer by
reason of Tenant's default. If any portion is so used, Tenant shall within five
(5) days after written demand therefor, deposit with Landlord an amount
sufficient to restore the Security Deposit to its original amount and Tenant's
failure to do so shall be a material breach of this Lease. Except to such
extent, if any, as shall be required by law, Landlord shall not be required to
keep the Security Deposit separate from its general funds, and Tenant shall not
be entitled to interest on such deposit. If Tenant shall fully and faithfully
perform every provision of this Lease to be
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performed by it, the Security Deposit or any balance thereof shall be returned
to Tenant at such time after termination of this Lease when Landlord shall have
determined that all of Tenant's obligations under this Lease have been
fulfilled.
SUBORDINATION
25. This Lease and all rights of Tenant hereunder are and shall be
inferior and subordinate to any mortgage, deed to secure debt, deed of trust or
other security instrument in the nature thereof which may now or hereafter
affect Landlord's interest in the Premises or Building and to any modifications,
renewals, consolidations, extensions, or replacements of any such security
instrument; provided, however, that Landlord, mortgagee, trustee or holder of
any such mortgage, deed to secure debt, deed of trust or other security
instrument in the nature thereof may, by notice to Tenant, elect to have
Tenant's interest in this Lease be superior to any such instrument, in which
case this Lease shall be deemed superior, whether this Lease was executed before
or after said instrument. This paragraph shall be self-operative, and no further
instrument of subordination shall be required by the holder of any such security
instrument. Tenant shall, however, execute, acknowledge, and deliver to Landlord
or the holder of any such security instrument, upon demand and without expense,
any and all instruments that may be requested by Landlord for the purpose of
subordinating (or making superior) this Lease and the rights of Tenant hereunder
to the rights and interests of the holder of such security instrument and for
any and all purposes reasonably related thereto. In the event the holder of any
such security instrument or purchaser at foreclosure shall hereafter succeed to
the rights of Landlord under this Lease, whether by foreclosure or other means,
Tenant shall attorn to and recognize same as the successor Landlord under this
Lease and shall promptly execute and deliver any instrument that may be
necessary to evidence such attornment.
ESTOPPEL CERTIFICATES
26. Tenant shall at any time and from time to time, upon not less
than ten (10) days prior, written notice from Landlord, execute, acknowledge and
deliver to Landlord, or Landlord's designee, a statement in writing (a)
certifying that this Lease is unmodified and in full force and effect (or, if
modified, stating the nature of such modification), (b) stating that Tenant has
accepted occupancy of the Premises, (c) specifying the dates to which rent, and
other amounts due hereunder have been paid, (d) certifying that there are no
existing defaults on the part of Landlord hereunder and that Tenant has no
defenses or offsets against the enforcement of this Lease or specifying such
defaults, defenses or offsets if any are claimed, and (e) addressing such other
aspects of this Lease as Landlord shall reasonably request.
EXCULPATION
27. Notwithstanding anything to the contrary contained herein,
express or implied, Landlord's obligations and liability to Tenant with respect
to this Lease shall be limited solely to Landlord's interest in the Building
(subject to the rights of any holders of security interests in the Building),
and neither Landlord nor any of its trustees, board of directors and officers,
as the case may be, its investment manager, the general partners thereof, or any
beneficiaries, stockholders,
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employees or agents of Landlord or the investment manager shall have any
personal liability whatsoever with respect to this Lease or Landlord's
obligations hereunder.
QUIET POSSESSION
28. Upon Tenant's paying the Rent hereunder and observing and
performing all of the covenants, conditions and provisions on Tenant's part to
be observed and performed hereunder, Tenant shall have quiet possession of the
Premises for the Term, subject to all of the terms and provisions of this Lease.
Notwithstanding the foregoing, Tenant agrees that any towing of any vehicles
which are owned by Tenant or its employees and which are illegally or improperly
parked shall not constitute a violation of Tenant's quiet enjoyment; and Tenant
hereby releases Landlord from all claims Tenant, its employees, guests, and
invitees may have against Landlord as a result of any proper exercise by
Landlord of its rights aforesaid. Such towing shall not, in any event,
constitute a breach of this Paragraph 28.
HAZARDOUS SUBSTANCES
29. Tenant hereby represents and warrants to Landlord that Tenant
has not brought or permitted to be brought, and covenants and agrees with
Landlord that Tenant will not bring or permit to be brought on the Premises or
any portion thereof any substances or materials (hereinafter collectively called
"Hazardous Substances") except those substances common used in business offices,
the generation, handling, manufacturing, treatment, storage, use,
transportation, or discharge of which are regulated by any state, federal, or
local law, rule, regulation, or notice or may result in a diminution or
impairment of air or water quality. Tenant hereby indemnifies and agrees to hold
Landlord harmless from and against (a) all costs, fees, and expenses (including,
without limitation, attorneys', engineers' and consultants' fees and costs
actually incurred) in connection with the presence of any Hazardous Substances
on the Premises first introduced by Tenant onto the Premises after the
Commencement Date; (b) all claims, liabilities, expenses, or damages imposed on
Landlord or incurred by Landlord by any person (including, without limitation,
any employee, invitee, or guest of Tenant), entity, or governmental body
whatsoever and arising out of any claims, action, administrative proceedings,
judgments, damages, penalties, fines, and costs, including, without limitation,
attorneys', engineers, and consultants' fees and costs, costs of investigation,
and settlement, that arise directly or indirectly from or in connection with the
presence, release, or suspected release of any Hazardous Substances at, or, or
about the Premises as a result of any action or omission of Tenant; (c) any
diminution in the value of the Building arising directly or indirectly from or
in connection with the presence, release, or suspected release of any Hazardous
Substances at, on, or near the Premises as a result of any action or omission of
Tenant; and (d) all loss of rental resulting from the presence, release, or
suspected release of any Hazardous Substances at, in, or near the Premises or
at, in, or near the Complex as a result of any action or omission by Tenant.
Tenant agrees to notify Landlord (i) of any investigation of the Premises for
Hazardous Substances by any consultant engaged by Tenant or others on Tenant's
behalf or any governmental or quasi-governmental agency, department, commission,
or committee and (ii) of any suit or threatened suit against Tenant with regard
to the discharge, release, or possible discharge or release of Hazardous
Substances at, near, or about the Premises. Further, Tenant agrees to provide
Landlord with true, correct, and complete copies of all test results conducted
by or at the request of Tenant with respect to the possible presence of
Hazardous Substances at,
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near, or about the Premises. Any permitted alterations or permitted improvements
to the Premises made by Tenant shall be made and maintained in compliance with
all environmental, health, and safety laws applicable to the Premises. In
addition to its rights under Paragraph 7 above, Landlord shall have the right,
but not the obligation or duty, to enter or to have its engineer and consultants
enter the Premises at reasonable hours to test for the presence of Hazardous
Substances. Such testing shall be at Landlord's expenses; provided, however, if
such testing reveals the presence of Hazardous Substances above any permissible
levels or quantities, Tenant shall promptly reimburse Landlord for the costs of
such tests and shall promptly remove or cause to be removed any excessive
Hazardous Substances. The indemnifications contained in this Paragraph 29 shall
inure to the benefit of Landlord, its successors, successors-in-title, assigns,
mortgagees, lenders, partners, joint venturers, officers, directors, members,
employees, and agents. The terms and provisions of this Paragraph 29 shall
survive the expiration or earlier termination of this Lease.
NON-LIABILITY AND INDEMNIFICATION
30. None of the Landlord Entities (as defined in Paragraph 32)
shall be liable and Tenant hereby waives all claims against them for any damage
to any property or any injury to any person in or about the Premises or the
Building by or from any cause whatsoever (including, without limitation, rain or
water leakage of any character from the roof, windows, walls, basement, pipes,
plumbing works or appliances, the Building not being in good condition or
repair, gas fire, oil, electricity or theft), except to the extent caused by or
arising from the gross negligence or willful misconduct of Landlord or its
agents, employees or contractors. Tenant shall protect, indemnify and hold the
Landlord Entities harmless from and against any and all loss, claims, liability
or costs (including court costs and attorney's fees) incurred by reason of (a)
any damage to any property (including but not limited to property of any
Landlord Entity) or any injury (including but not limited to death) to any
person occurring in, on or about the Premises or the Complex to the extent that
such injury or damage shall be caused by or arise from any actual or alleged
act, neglect, fault, or omission by or of Tenant, its agents, servants,
employees, invitees, or visitors to meet any standards imposed by any duty with
respect to the injury or damage; (b) the conduct or management of any work or
thing whatsoever done by Tenant in or about the Premises or from transactions of
Tenant concerning the Premises; (c) Tenant's failure to comply with any and all
governmental laws, ordinances and regulations applicable to the condition or use
of the Premises or its occupancy; or (d) any breach or default on the part of
Tenant in the performance of any covenant or agreement on the part of Tenant to
be performed pursuant to this Lease, including, but not limited to, Paragraph
29. The provisions of this Paragraph shall survive the termination or expiration
of this Lease with respect to any claims or liability accruing prior to such
termination or expiration.
ENTIRE AGREEMENT, ETC.
31. This Lease contains the entire agreement of the parties, and
no representation or agreements, oral or otherwise, between the parties not
embodied herein shall be of any force or effect. No failure of Landlord to
exercise any power given Landlord hereunder, or to insist upon strict compliance
by Tenant of any obligation hereunder, and no custom or practice of the parties
at variance with the terms hereof, shall constitute a waiver of Landlord's right
to demand exact compliance with the terms hereof. Submission of this Lease shall
not be deemed to be a
-20-
<PAGE> 21
reservation of the Premises. Landlord shall not be bound by this Lease until it
has received a copy of this Lease duly executed by Tenant and has delivered to
Tenant a copy of this Lease duly executed by Landlord, and until such delivery
Landlord reserves the right to exhibit and lease the Premises to other
prospective tenants. Notwithstanding anything contained in this Lease to the
contrary, Landlord may withhold delivery of possession of the Premises from
Tenant until such time as Tenant has paid to Landlord any security deposit
required by Paragraph 24, the first month's rent as set forth in Paragraph 3 and
any sum owed pursuant to this Lease.
This Lease may be executed in one or more counterparts, each
of which shall be deemed an original, and all of which shall constitute one and
the same instrument. This Lease shall be governed by the laws of the State of
Georgia. Tenant shall not record this Lease or any memorandum hereof. The terms
of this Lease are to be given their meaning under Georgia law without any
presumption or construction for or against any party over the other as to the
author of said terms, because all parties hereto jointly claim said terms as
their own for purposes of this Lease.
DEFINED TERMS AND HEADINGS
32. The Paragraph headings shown in this Lease are for convenience
of reference and shall in no way define, increase, limit or describe the scope
or intent of any provision of this Lease. Any indemnification or insurance of
Landlord shall apply to and inure to the benefit of all of the following
"Landlord Entities", being Landlord, Landlord's investment manager, and the
trustees, boards of directors, officers, general partners, beneficiaries,
stockholders, employees and agents of each of them. Any option granted to
Landlord shall also include or be exercisable by Landlord's trustee,
beneficiary, agents and employees, as the case may be. In any case where this
Lease is signed by more than one person or entity, the obligations under this
Lease shall be joint and several. The terms "Tenant" and "Landlord" or any
pronoun used in place thereof shall indicate and include the masculine or
feminine, the singular or plural number, individuals, firms or corporations, and
each of their respective successors, executors, administrators and permitted
assigns, according to the context hereof. The term "rentable area" shall mean
the rentable area of the Premises or the Building as calculated by the Landlord
on the basis of the plans and specifications of the Building including a
proportionate share of any common areas. Tenant hereby accepts and agrees to be
bound by the figures for the rentable space footage of the Premises and Tenant's
Share as defined in Paragraph 3.
TIME OF ESSENCE
33. Time is of the essence of this Lease.
BROKERS
34. Tenant represents and warrants to Landlord that, except for
William Leonard & Co. ("Broker"), Tenant has not engaged or had any
conversations or negotiations with any broker, finder or other third party
concerning the leasing of the Premises to Tenant who would be entitled to any
commission or fee based on the execution of this Lease. Tenant hereby further
represents and warrants to Landlord that Tenant is not receiving and is not
entitled to receive any rebate, payment or other remuneration, either directly
or indirectly, from Broker, and that it is
-21-
<PAGE> 22
not otherwise sharing in or entitled to share in any commission or fee paid to
Broker by Landlord or any other party in connection with the execution of this
Lease, either directly or indirectly. Tenant hereby indemnifies Landlord against
and from any claims for any brokerage commissions (except those payable to
Broker, all of which are payable by Landlord pursuant to a separate agreement)
and all costs, expenses and liabilities in connection therewith, including,
without limitation, reasonable attorneys' fees and expenses, for any breach of
the foregoing. The foregoing indemnification shall survive the termination or
expiration of this Lease.
TENANT'S BANKRUPTCY OR INSOLVENCY
35. If at any time and for so long as Tenant shall be subjected to
the provisions of the United States Bankruptcy Code or other law of the United
States or any state thereof for the protection of debtors as in effect at such
time (each a "Debtor's Law"): Tenant, Tenant as debtor-in-possession, and any
trustee or receiver of Tenant's assets (each a "Tenant's Representative") shall
have no greater right to assume or assign this Lease or any interest in this
Lease, or to sublease any of the Premises than accorded to Tenant in Paragraph
12 hereof, except to the extent Landlord shall be required to permit such
assumption, assignment or sublease by the provisions of such Debtor's Law.
Without limitation of the generality of the foregoing, any right of any Tenant's
Representative to assume or assign this Lease or to sublease any of the Premises
shall be subject to the conditions that:
(a) Such Debtor's Law shall provide to Tenant's
Representative a right of assumption of this Lease which Tenant's Representative
shall have timely exercised and Tenant's Representative shall have fully cured
any default of Tenant under this Lease.
(b) Tenant's Representative or the proposed assignee, as
the case shall be, shall have deposited with Landlord as security for the timely
payment of Rent an amount equal to the larger of: (a) three months' Base Rental
and other monetary charges accruing under this Lease; and (b) any sum specified
in Paragraph 24 hereof; and shall have provided Landlord with adequate other
assurance of the future performance of the obligations of Tenant under this
Lease. Without limitation, such assurances shall include, at least, in the case
of assumption of this Lease, demonstration to the satisfaction of Landlord that
Tenant's Representative has and will continue to have sufficient unencumbered
assets after the payment of all secured obligations and administrative expenses
to assure Landlord that Tenant's Representative will have sufficient funds to
fulfill the obligations of Tenant under this Lease; and, in the case of
assignment, submission of current financial statements of the proposed assignee,
audited by an independent certified public accountant reasonably acceptable to
Landlord and showing a net worth and working capital in amounts determined by
Landlord to be sufficient to assure the future performance by such assignee of
all of the Tenant's obligations under this Lease.
(c) The assumption or any contemplated assignment of this
Lease or subleasing any part of the Premises, as shall be the case, will not
breach any provision in any other lease, mortgage, financing agreement or other
agreement by which Landlord is bound.
(d) Landlord shall have or would have had absent the
Debtor's Law, no right under Paragraph 12 hereof to refuse consent to the
proposed assignment or sublease by reason of
-22-
<PAGE> 23
the identity or nature of the proposed assignee or sublessee or the proposed use
of the Premises concerned.
EXHIBITS
36. The exhibits referred to in this Lease and identified below
are attached to this Lease and by reference made a part hereof;
Exhibit "A" - Premises
Exhibit "B" - Rules and Regulations
Exhibit "C" - Special Stipulations
Exhibit "D" - Leasehold Improvements
TENANT'S AUTHORITY
37. If Tenant signs as a corporation each of the persons executing
this Lease on behalf of Tenant represents and warrants that Tenant has been and
is qualified to do business in the state in which the Premises is located, that
the corporation has full right and authority to enter into this Lease, and that
all persons signing on behalf of the corporation were authorized to do so by
appropriate actions. If Tenant signs as a partnership, trust or other legal
entity, each of the persons executing this Lease on behalf of Tenant represents
and warrants that Tenant has complied with all applicable laws, rules and
governmental regulations relative to its right to do business in the state in
which the Premises is located and that such entity on behalf of the Tenant was
authorized to do so by any and all appropriate partnership, trust or other
actions. Tenant agrees to furnish promptly upon request a corporate resolution,
proof of due authorization by partners, or other appropriate documentation
evidencing the due authorization of Tenant to enter into this Lease.
SPECIAL STIPULATIONS
38. Insofar as the Special Stipulations, if any, set forth on
Exhibit "C" conflict with any of the provisions of this Lease, said Special
Stipulations shall control.
IN WITNESS WHEREOF, the parties herein have hereunto set their hands
and seals, the day and year first above written.
TENANT:
NOVIENT, INC., a Georgia corporation
By: /s/ Lori N. Siegel
-----------------------------------------
Name: Lori N. Siegel
Title: CFO
-23-
<PAGE> 24
LANDLORD:
PIEDMONT OFFICE CENTER, INC., a
Delaware corporation
By: RREEF Management Company, a
Delaware corporation
By: /s/ Faye Z. Phillips
-------------------------------------
Faye Z. Phillips
Vice President
-24-
<PAGE> 25
EXHIBIT A
[Architectural Floor Plan of Fifth Floor - Building Seven]
[Piedmont Center, Atlanta, GA]
[A development of P.C. Associates, Atlanta, GA]
<PAGE> 26
EXHIBIT A-1
[Architectural Floor Plan of Sixth & Seventh Floor - Building 7 -
1st Right of Refusal]
[Piedmont Center, Atlanta, GA]
[A development of P.C. Associates, Atlanta, GA]
<PAGE> 27
EXHIBIT A-2
[Architectural Floor Plan of Fourth Floor - Building 7 -
2nd Right of Refusal]
[Piedmont Center, Atlanta, GA]
[A development of P.C. Associates, Atlanta, GA]
<PAGE> 28
EXHIBIT B
BUILDING REGULATIONS
To insure minimization of inconvenience to tenants and to maintain the
Complex in the best possible condition, Tenant shall comply with the following
Building Regulations:
1. The sidewalks, entry passages, corridors, halls, elevators and
stairways shall not be obstructed by Tenant (including Tenant's agents,
contractors and visitors), nor used by them for any purpose other than those of
ingress and egress. The floors, skylights and windows that reflect or admit
light into any place in the Building shall not be covered or obstructed by
Tenant. The water closets and other water apparatus shall not be used for any
purpose other than those for which they were constructed, and no sweepings,
rubbish, or other obstructing substances shall be thrown therein.
2. No advertisement, sign, or other notice shall be inscribed,
painted or affixed by Tenant on any part of the outside or inside of the
Premises or any portion of the Building and related improvements, except where
permitted by Landlord in writing. All such advertisements, signs or other
notices shall be of such order, size and style, and at such places as shall be
designated by Landlord. Exterior signs at or near exterior doors will be
provided for Tenant by Landlord, the cost of signs to be charged to and paid for
by Tenant. Tenant will not distribute, display or place any handbills, bumper
stickers or other advertisements or notice in any area of the Building and
related improvements or throughout Piedmont Center or on vehicles at Piedmont
Center.
3. Nothing shall be thrown by Tenant out of the windows or doors,
or down the passages or skylights of the Building. No rooms shall be occupied or
used as sleeping or lodging apartments at any time.
4. Tenant shall not employ any persons other than the janitors of
Landlord (who will be provided with pass-keys into the Premises) for the purpose
of cleaning or taking charge of said Premises. Tenant shall not change or
install any additional locks or security systems in the Premises without
Landlord's written consent. It is understood and agreed that Landlord shall not
be responsible to Tenant for any loss of property from the Premises, however
occurring, or for any damage done to the furniture or other effects of Tenant by
the janitor or any of its employees.
5. No animals, birds, bicycles or other vehicles shall be allowed
in the offices, halls, corridors, elevators or elsewhere in the Complex or on
the grounds of Piedmont Center.
6. No painting shall be done, nor shall any alterations be made,
to any part of the Building or Premises by putting up or changing any
partitions, doors or windows, nor shall there be any nailing, boring or screwing
into the woodwork or plastering, nor shall either any cabling be installed in or
about the Premises or any connection be made to the electric wires or electric
fixtures, without the consent in writing on each occasion of Landlord. All
glass, locks and trimmings in or upon the doors and windows of the Building and
the Premises shall be kept
<PAGE> 29
whole and, when any part thereof shall b broken, the same shall be immediately
replaced or repaired and put in order under the direction and to the
satisfaction of Landlord, and shall be left whole and in good repair. Tenant
shall not injure, overload or deface the Building, the Premises, or any
improvements included in either, nor allow upon the Premises any noxious, noisy,
or offensive business. Tenant shall not change or remove blinds or other window
coverings without Landlord's consent.
7. Tenant shall not (without Landlord's written consent) put up
or operate any steam engine, boiler, machinery or store upon the Premises, or
carry on any mechanical business therein, nor do any cooking therein (except
microwave cooking), nor use or allow to be used upon the Premises oil, burning
fluids, camphene, gasoline or kerosene for heating, warming or lighting. No
article deemed extra hazardous on account of fire and no explosives, firearms or
weapons shall be brought into said Premises or Building. No offensive gases or
liquids will be permitted. Tenant shall not generate, store, handle or otherwise
deal with any hazardous or toxic waste, substance or material, or any oil or
pesticide, upon any portion of the Building and related property. Tenant shall
comply with all "no smoking" and similar ordinances applicable to the Building,
including, without limitation, the Fulton County Clean Indoor Act Ordinance.
8. If tenants require electric wiring for any electrical device,
such wiring shall be done by Landlord's approved electrician only, and no
outside electricians shall be allowed to do work of this kind unless by written
permission of Landlord. Tenant shall obtain installation of all telephonic
wiring in compliance with applicable codes. No boring or cutting into concrete
for wiring shall be done unless approved by Landlord.
9. Landlord will post on the directory of its Building one name
to be designated by Tenant at no charge. All additional names which Tenant shall
desire put upon said directory must be first consented to by Landlord and, if so
approved, a charge will be made for such additional listing as prescribed by
Landlord to be paid to Landlord by Tenant.
10. Landlord and its agents and contractors shall have the right
to enter the Premises at all reasonable hours for the purpose of making any
repairs, alterations, or additions which it shall deem necessary for the safety,
preservation, or improvement of the Building, and Landlord shall be allowed to
take all material into and upon such Premises that may be required to make such
repairs, improvements, and additions, or any alterations for the benefit of
Tenant without in any way being deemed or held guilty of an eviction of Tenant
or otherwise liable to Tenant; and the rent reserved shall in no way abate while
said repairs, alterations, or additions are being made; and Tenant shall not be
entitled to maintain a set-off or counterclaim for damage against Landlord by
reason of loss or interruption to the business of Tenant because of the
prosecution of any such work. All repairs, decorations, additions and
improvements shall be done during ordinary business hours, at Landlord's option,
or, if any such work is at the request of Tenant to be done during any other
hours, Tenant shall pay for all overtime costs. In cases of emergency, Landlord,
its agents and contractors, shall have the right to enter the Premises at any
time, with force if necessary.
11. Landlord reserves all vending rights. Tenant's request for
such service shall be made by Tenant to Landlord's management office.
<PAGE> 30
12. All moves (whether moving into or out of the Premises) and
deliveries of furniture or equipment shall be coordinated through Landlord's
management offices, and Tenant shall advise Landlord at least two (2) working
days prior to truck arrival. Tenant shall provide Landlord such information
(including the completion of Landlord's standard moving questionnaires) as
Landlord requires to coordinate such moves or deliveries, and Tenant (together
with Tenant's agents and contractors) will comply with Landlord's guidelines and
instructions in the work associated with such moves or deliveries. All moving
and delivery companies shall provide Landlord certificates of insurance
evidencing the existence of property damage and liability insurance in amounts
acceptable to Landlord. All moves shall be made at 5:30 P.M. Friday and prior to
8:00 A.M. Monday. Tenant shall be responsible for any damages to the Premises,
Building and related improvements occurring from such move or delivery, and
shall ensure that proper precautions are undertaken to avoid any such damage.
Tenant shall provide Landlord the forwarding address of Tenant prior to any
move-out. A representative of Landlord shall have the right to be at and to
supervise all moves and deliveries.
13. No load shall be placed on the floor of the Premises which
exceeds Landlord's prescribed load limits. All equipment of Tenant will be kept
and operated by Tenant free of abnormal noise and vibrations which may transmit
to any part of the Building or beyond the confines of the Premises. No odors or
vapors will be permitted or caused to emanate from the Premises.
14. Landlord reserves the right to require all persons entering
the Building to sign a register, to be announced to Tenant that such person is
visiting and to be accepted as a visitor by Tenant or to be otherwise properly
identified (and, if not so accepted or identified, reserves the right to exclude
such persons from the Building) and to require persons leaving the Building to
sign a register or to surrender any pass given to such person. Tenant shall be
responsible for all persons for whom it requests any such pass or any person who
Tenant so accepts. Any person whose presence in the Building at any time shall,
in the judgment of Landlord, be prejudicial to the safety, character, security,
reputation or interest of the Building or the tenants of the Building may be
denied access to the Building or may be ejected from the Building.
15. Tenant agrees to comply with, and to compel its visitors,
agents, employees, customers, and guests to comply with, all parking rules and
regulations within Piedmont Center. Tenant agrees that Landlord shall have no
liability or responsibility for any vehicles that are damaged at or towed from
Piedmont Center. No long-term storage of vehicles at Piedmont Center is
permitted; any vehicles so stored may be towed by Landlord or its
representatives at Tenant's expense.
<PAGE> 31
EXHIBIT C
SPECIAL STIPULATIONS
This Exhibit "C" is a part of the Lease between PIEDMONT CENTER, INC.,
a Delaware corporation, as Landlord, and NOVIENT, INC., a Georgia corporation,
as Tenant, for Suite 500, Seven Piedmont Center.
1. Effective on the commencement of the seventh month of Lease
Term, Tenant's Premises shall be expanded to 12,500 rentable square feet.
Further, on the commencement of the second year of Lease Term, the Premises
shall be expanded to 21,285 rentable square feet.
2. Notwithstanding anything to the contrary contained herein, the
base rent schedule for the Premises shall be as follows:
<TABLE>
<CAPTION>
<S> <C>
Months 1 - 6: $17,326.83 per month
Months 7 - 12: $22,916.67 per month
Months 13 - 24: $41,346.11 per month
Months 25 - 36: $41,683.13 per month
Months 37 - 48: $43,279.50 per month
Months 49 - 60: $44,343.75 per month
</TABLE>
The above said base rental shall be subject to adjustment as provided
for in the Lease.
3. Beginning on January 1, 2001, Tenant's base rental figures
shown in paragraph 2 herein shall be adjusted annually by two and one-quarter
percent (2.25%). The adjusted figures shall establish the new base rental
figure.
4. Tenant shall provide to Landlord either a Letter of Credit
(LOC) or Certificate of Deposit (CD) issued by a bank with a branch in Metro
Atlanta equal to the sum of $100,000.00. This sum shall be increased by fifty
percent (50%) of any increase over the $10.00 per rentable square foot Tenant
Improvement Allowance provided for in the Lease. Tenant shall provide such LOC
or CD within thirty (30) days of execution of the Lease or prior to the
commencement of construction of the improvements in the Premises, whichever is
sooner. Should Tenant fail to provide an acceptable LOC or CD to Landlord within
said time frame given herein, this Lease shall become null and void, and Tenant
shall reimburse Landlord for any costs it has expended on construction drawings
and associated costs for the Premises. Said LOC or CD shall be payable to
Landlord in the event Tenant defaults under the terms and conditions of this
Lease. Said LOC or CD shall have an initial term of not less than one (1) year
and shall be renewed for two (2) additional twelve (12) month periods not less
than thirty (30) days prior to each expiration until said LOC or CD is no longer
required. Notwithstanding anything to the contrary in Paragraph 8 of the Lease,
should Tenant fail to provide Landlord with proof of said renewal of the LOC or
CD thirty days prior to the expiration of the LOC or CD, an event of default
shall have immediately occurred and Landlord shall be entitled to call the LOC
or CD immediately with no required period to cure. Landlord may only draw on LOC
or CD if such request is
<PAGE> 32
accompanied by an affidavit stating that an event of default has occurred on the
part of the Tenant and remains uncured, provided a cure period is applicable.
Provided no event of default has occurred and remains uncured after the
appropriate cure period during the first three (3) years of Lease Term, the
requirement of this LOC or CD shall be waived. Should Tenant become a publicly
traded company, provided Tenant is not in default under the terms of this Lease,
then ninety (90) days after the date upon which the Tenant became a publicly
traded company, the LOC or CD shall be waived. Similarly, should Tenant receive
another round of capital funding of at least $5,000,000.00, the LOC or CD shall
be waived ninety (90) days after the date the abovesaid sum is deposited in
Tenant's account.
5. Provided Tenant is not in default under the terms and
conditions of this Lease and has not sublet its entire Premises, Tenant shall
have the option to lease approximately 4,265 rentable square feet as shown
outlined in green on Exhibit "A" attached hereto on August 1, 2000 provided
Tenant has given Landlord written notice of its intent to exercise said option
not later than March 1, 2000. Should Tenant exercise said option the rental rate
shall be that rate Tenant is paying at that time. Further, Landlord shall
provide a prorated amount of the original Tenant Improvement Allowance set forth
in Exhibit "D". The proration shall be based on the total months of occupancy
for the option space.
6. Landlord hereby provides Tenant with a Right of First Refusal
on approximately 13,640 rentable square feet or any portion thereof on the sixth
floor of Building Seven, should the tenant who presently occupies said space not
renew its lease or should such space become available for lease. Tenant shall
have five (5) days to exercise its right in writing after notification from
Landlord that Landlord has a bona fide third party offer for said space. Absence
of notice by Tenant shall be deemed to be a waiver of the rights provided
herein. The terms and conditions for such space shall be the same as those
agreed upon between the Landlord and the third party for the space.
7. Landlord hereby provides Tenant with a Second Right of Refusal
on approximately 16,000 rentable square feet on the fourth floor of Building
Seven, subject to existing tenants' rights. Tenant shall have five (5) days to
exercise its right in writing after notification from Landlord that Landlord has
a bona fide third party offer for said space. Absence of notice by Tenant shall
be deemed to be a waiver of the rights provided herein. The terms and conditions
for such space shall be the same as those agreed upon between the Landlord and
the third party for the space.
8. Seasonal air conditioning and heating on Saturdays shall be
from 8:00 A.M. to 12:00 P.M.
9. PERMITTED USE OF SPACE. The permitted use set forth in Section
4 of the Lease shall also allow use of Premises for storage, duplication,
circuit board assemblage and other preparation of computer hardware products and
computer software products and all related support and maintenance of computers,
equipment and software, provided that such assemblage does not materially
disturb the quiet enjoyment of another tenant and so long as any associated
electrical usage does not exceed the normal Building standards for office usage.
<PAGE> 33
10. AUTHORITY OF LANDLORD. Landlord represents and warrants that:
(i) Landlord owns fee simple title to the Building and Landlord is fully
authorized to execute the Lease and grant the rights to Tenant pursuant to the
terms of the Lease.
11. LANDLORD'S INSURANCE. Landlord shall maintain general
liability and casualty insurance coverage on the Building and its contents and
improvements as necessary to fully insure and protect such interest, provided
however the Landlord shall not be obligated to insure any of the furniture,
equipment and other property placed in the Premises.
12. SUBLETTING AND ASSIGNMENTS. Notwithstanding anything in
Section 12 to the contrary, Landlord shall not unreasonably withhold or delay
its consent to an assignment, subletting or transfer of the Lease. The Tenant
shall be entitled to assign the Lease to: (i) Tenant's parent corporation; (ii)
a wholly-owned subsidiary of Tenant; (iii) any corporation in which Tenant or
its parent owns fifty percent (50%) or more of the outstanding stock; (iv) a
consolidation or merger of Tenant with its parent or subsidiary corporations; or
(v) a corporation to which substantially all of the assets of the Tenant may be
transferred. If an assignee of Tenant's rights and obligations hereunder is as
creditworthy as Tenant or more creditworthy, then Tenant shall be released from
further obligations hereunder, otherwise, Tenant shall remain obligated
hereunder after any such assignment.
13. CONDEMNATION PROCEEDS. Notwithstanding anything in Section 14
to the contrary, Tenant shall be entitled to retain all condemnation proceeds
and other sums which are separately awarded to Tenant in the event of a
condemnation of the Premises and the Building, provided such award does not
diminish the award due to Landlord by the condemning party.
14. REMOVAL OF EQUIPMENT. Notwithstanding anything in Section 15
to the contrary, Tenant shall be entitled to remove all telephone, computer and
other equipment from the Premises even if it is affixed to the Premises.
However, Tenant must restore the premises to the condition existing prior to
installation of said telephone, computer or other equipment, normal wear and
tear excepted. Tenant shall not remove fixtures or improvements which are a part
of the Premises.
15. RULES AND REGULATIONS. Notwithstanding anything herein to the
contrary in Section 17, Landlord shall use commercially reasonable best efforts
to uniformly enforce the Rules and Regulations.
16. EQUIPMENT. Notwithstanding anything in Section 29 to the
contrary, Tenant shall be entitled to bring into the Premises any normal office
and business equipment and other materials that are commonly used in offices in
Atlanta.
17. Both Landlord and Tenant agree that time is of the essence and
shall work in good faith towards completing all tasks necessary to provide for
Tenant's occupancy as soon as is possible.
18. Landlord hereby agrees to provide Tenant the option to extend
the term of the Lease one (1) year provided Tenant gives such notice of such
election prior to construction of the Premises. Should said option be executed,
Tenants rental shall be as outlined below. Should
<PAGE> 34
Tenant exercise said option Landlord shall provide an additional $2.00 per
rentable square foot for improvements to the Premises:
<TABLE>
<CAPTION>
<S> <C>
Months 1 - 6: $17,326.83 per month
Months 7 - 12: $22,916.67 per month
Months 13 - 24: $41,346.11 per month
Months 25 - 36: $41,683.13 per month
Months 37 - 48: $41,683.13 per month
Months 49 - 60: $43,279.50 per month
Months 61 - 72: $44,343.75 per month
</TABLE>
The above said base rental shall be subject to adjustment as
provided for in the Lease.
19. Landlord hereby agrees that should Tenant so request, it will
apply to the necessary governmental agencies for approval of a monument sign
location near the entrance to Building Five through Eight, Piedmont Center.
Should Landlord receive such approval, Tenant shall be responsible for all costs
associated with the installation of said signage. Said sign shall be similar in
design to those signs for Buildings One through Four and Fifteen Piedmont
Center. Landlord shall have the right to place other companies names on said
sign; however, Tenant shall have the right to have the upper most location on
said sign. Tenant shall not owe an annual fee for its position on the sign.
Further, Tenant's obligation for payment of said signage shall be limited to
$10,000.00.
<PAGE> 35
EXHIBIT D
LEASEHOLD IMPROVEMENTS
This Exhibit "D" is a part of the Lease between PIEDMONT OFFICE CENTER,
INC., a Delaware corporation, as Landlord, and NOVIENT, INC., a Georgia
corporation, as Tenant, for Suite 500, Seven Piedmont Center.
1. Tenant accepts the Premises in its present "as-is" condition.
Landlord will contribute up to $10.00 per rentable square foot towards leasehold
improvements, including cable and telephone work to the Premises.
2. Landlord's Work. Landlord shall provide design and
construction of the work to the Premises described on Schedule 1 attached hereto
("Landlord's Work"). Tenant may not use or occupy the Premises with a number of
personnel greater than is contemplated in the approved space plans. As further
provided herein, Tenant shall be responsible for the incremental cost of
Landlord's Work in excess of the Maximum TI Allowance (as defined below).
3. Cost and Allowance.
(a) This Lease and the rental rates provided for herein
are premises on a total cost of Landlord's Work not to exceed $212,850.00
($10.00 per RSF) (the "Maximum TI Allowance"). The "cost of Landlord's Work"
includes, without limitation:
(i) All costs and expenses actually incurred by
Landlord pertaining to Landlord's Work, including, but not limited to, costs
charged by contractors, subcontractors and general and other conditions costs
and expenses in connection with preparation of the Premises for occupancy;
(ii) All costs and expenses of preparation of the
plans for such construction, and site inspection and contract administration by
Landlord's consulting architects and/or engineers;
(iii) All costs of permits, licenses and other
approvals required for the performance of Landlord's Work; and
(iv) A construction management fee to Landlord,
or Landlord's agent, of five percent (5%) of the total of all such costs under
the foregoing subsections (i), (ii) and (iii).
(b) If the total cost of Landlord's Work exceeds the
Maximum TI Allowance, the entire amount of such excess (the "Excess TI Cost")
shall be borne by Tenant and shall be paid to Landlord by Tenant upon demand as
additional rent under the Lease. Prior to commencing any of Landlord's Work,
Landlord shall submit to Tenant for Tenant's reasonable approval a written
estimate of the cost of Landlord's Work (the "Estimate"). If Tenant fails to
either approve or reasonably object to the Estimate within five (5) business
days after Tenant's receipt thereof, then Tenant shall be deemed to have
approved the Estimate. Landlord will require Tenant to deposit with Landlord
within five (5) days after Landlord's written request
<PAGE> 36
therefore the amount of the agreed-upon Estimate which exceeds the Maximum TI
Allowance (the "Excess TI Deposit"). The Excess TI Deposit shall be held as
security for the payment of and shall be credited, without interest, against the
sums payable by Tenant under this Lease. Landlord shall not be required to
commence the Landlord's Work until payment of the Excess TI Deposit is received.
Any delay in completing Landlord's Work by the Commencement Date that results
from a delay by Tenant to deposit the Excess TI Deposit with Landlord within
said five (5) day period shall be deemed a delay caused by Tenant under Section
2(c) of the Lease.
(c) Notwithstanding anything to the contrary contained
herein, Tenant may notify Landlord prior to the Commencement Date of Tenant's
election to reimburse Landlord for the Excess TI Cost by payments to Landlord of
monthly additional rent (in the same manner and on the same terms as Base
Rental) in an amount that would fully amortize the Excess TI Cost with interest
at twelve percent (12%) over the initial Term of the Lease. Notwithstanding
anything to the contrary contained herein, the maximum amount of the Excess TI
Cost which Tenant may elect to amortize hereunder is $42,570.00 ($2.00 per
rentable square foot), and any amount of the Excess TI Cost which exceeds said
maximum amount shall be paid by Tenant to Landlord upon demand.
4. Miscellaneous.
(a) Except as set forth in this Exhibit D, Landlord has
no other agreement with Tenant and has no obligation to do any work with respect
to the Premises. Any other work in the Premises which may be permitted by
Landlord pursuant to the terms and conditions of the Lease shall be done at
Tenant's sole cost and expense and in accordance with the terms and provisions
of the Lease.
(b) All rights and remedies of Landlord herein created or
otherwise existing at law or equity are cumulative, and the exercise of one or
more such rights or remedies shall not be deemed to exclude or waive the right
to the exercise of any other rights or remedies. All such rights and remedies
may be exercised and enforced concurrently and whenever and as often as deemed
desirable.
(c) This Exhibit D shall not be deemed applicable to any
additional space added to the original Premises at any time or from time to
time, whether by any options under the Lease or otherwise, or to any portion of
the original Premises or any additions thereto in the event of a renewal or
extension of the original term of the Lease, whether by any options under the
Lease or otherwise.
5. Recapture of Concessions. Tenant understands and agrees that
in entering into this Lease, Landlord is relying upon receipt of all the Base
Rental to become due with respect to all of the Premises over the full Term of
this Lease for amortization, including an interest factor of ten percent (10%)
per annum (the "Interest Rate") of the Concession Amount. For purposes hereof,
the "Concession Amount" shall be defined as the aggregate of the Maximum TI
Allowance, any amount of the Excess TI Cost which Tenant has elected to amortize
hereunder and the brokers' commissions becoming due by reason of this Lease.
<PAGE> 37
Accordingly, Tenant agrees that if this Lease or Tenant's
right to possession of the Premises leased hereunder shall be terminated as of
any date ("Termination Date") prior to the expiration of the full Term hereof by
any reason other than a Landlord default, there shall be due and owing to
Landlord as of the day prior to the Termination Date, as rent in addition to all
other amounts owed by Tenant as of such Termination Date, the amount
("Unamortized Amount") of the Concession Amount determined as set forth below,
provided, however, that in the event that the Unamortized Amount is recovered by
Landlord pursuant to any other provision of this Lease, Landlord agrees that it
shall not attempt to recover the Unamortized Amount pursuant to this paragraph.
For the purposes hereof, the Unamortized Amount shall be
determined in the same manner as the remaining principal balance of a mortgage
with the Interest Rate payable in level payments over the same length of time as
the current Term of the Lease would be determined; to illustrate, according to a
standard mortgage amortization table, the principal amount outstanding (i.e. the
unamortized amount) at the end of the fifth year of a loan of $1,000.00 payable
in level payments with interest at 8% over ten years will be $598.00 assuming
all payments to that point are made as due.
<PAGE> 38
SCHEDULE 1
LANDLORD'S WORK
Construction per plans and specifications dated (not available)
(accepted by Tenant on (not available) prepared by (not available).
Upon completion, Construction Drawings to be attached hereto and made a
part hereof.
