LEASE AGREEMENT
by and between
The Equitable Life Assurance
Society of the United States
("Landlord")
and
Tenera, Inc.
("Tenant")
dated
May 3, 2000
for
Suite Number D-150
containing
12,786 square feet of Rentable Floor Area
9111 Cross Park Drive, Knoxville, Tennessee
Term: 43 months
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TABLE OF CONTENTS
Page
1. Certain Definitions 1
2. Lease of Premises 1
3. Term 1
4. Possession 2
5. Rental Payments 2
6. Base Rental 2
7. Rental Adjustment 2
8. Additional Rental 2
9. Operating Expenses 3
10. Tenant Taxes 4
11. Payments 4
12. Late Charges 5
13. Use Rules 5
14. Alterations 5
15. Repairs 5
16. Landlord's Right of Entry 5
17. Insurance 5
18. Waiver of Subrogation 6
19. Default 6
20. Waiver of Breach 6
21. Assignment and Subletting 7
22. Destruction 7
23. Landlord's Lien 7
24. Services by Landlord 7
25. Attorneys' Fees and Homestead 8
26. Time 8
27. Subordination and Attornment 8
28. Estoppel Certificates 8
29. No Estate 8
30. Cumulative Rights 8
31. Holding Over 8
32. Surrender of Premises 8
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33. Notices 9
34. Damage or Theft of Personal Property___________________________9
35. Eminent Domain 9
36. Parties 9
37. Liability of Tenant 9
38. Relocation of the Premises 9
39. Force Majeure 10
40. Landlord's Liability 10
41. Landlord's Covenant of Quiet Enjoyment________________________10
42. Security Deposits 10
43. Hazardous Substances 10
44. Submission of Lease 11
45. Severability 11
46. Entire Agreement 11
47. Headings 11
48. Broker 11
49. Governing Law 11
50. Authority 11
51. Joint and Several Liability 11
52. Special Stipulations 12
Rules and Regulations
Exhibit "A" - Legal Description
Exhibit "B" - Floor Plan
Exhibit "C" - Supplemental Notice
Exhibit "D" - Landlord's Construction
Exhibit "E" - Building Standard Services
Exhibit "F" - Guaranty
Exhibit "G" - Special Stipulations
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LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made and entered into this ____ day of
_______________, 2000 by and between Landlord and Tenant.
W I T N E S S E T H:
1. Certain Definitions. For purposes of this Lease, the following terms
shall have the meanings hereinafter ascribed thereto:
(a)Landlord: The Equitable Life Assurance Society of the United States
(bi)Landlord's Correspondence Address:
Equitable Life Assurance Society of the US
3424 Peachtree Road, Suite 800
Atlanta, GA 30326-1102
(bii)Landlord's Address for Rent::
3751465535 ELAS AAF
General Account
Cross Park II/CB Richard Ellis
Atlanta, GA 30384-2081
(c)Tenant: Tenera, Inc.
PO Box 402081
(di)Tenant's Correspondence Address:
One Market, Spear Tower
Suite 1850
San Francisco, CA 94105-1018
(dii)Tenant's Billing Address:
Same
(e)Building Address:
9111 Cross Park Drive
Knoxville, TN 37923
(f)Suite Number: D-150
(g)Rentable Floor Area of Demised Premises:
12,786 square feet 13.03%
(h)Rentable Floor Area of Building:
________________ square feet.
(i)Lease Term: 43 months.
(j)Base Rental Rate: 6/1/00-12/31/01 $12.50 RSF
1/1/02-12/31/02 $12.75 RSF
1/1/03-12/31/03 $13.00 RSF
(k)Rental Commencement Date: June 1, 2000
(l)Tenant Improvement Allowance: $31,965.00
(m)Security Deposits:
(i) $13,318.75 [Article 42(a)].
(ii) $13,318.75 [Article 42(b)].
(n)Broker(s): NAI Collins, Sharp & Koella, Inc
(o)
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2.Lease of Premises. Landlord, in consideration of the covenants and
agreements to be performed by Tenant, and upon the terms and conditions
hereinafter stated, does hereby rent and lease unto Tenant, and Tenant does
hereby rent and lease from Landlord, certain premises (the "Demised Premises")
in the building (the "Building") located on that certain tract of land (the
"Land") more particularly described on Exhibit "A" attached hereto and by this
reference made a part hereof, which Demised Premises are outlined in red or
cross-hatched on the floor plan attached hereto as Exhibit "B" and by this
reference made a part hereof, with no easement for light, view or air included
in the Demised Premises or being granted hereunder. The "Project" is comprised
of the Building, the Land, the Building's parking facilities, any walkways,
covered walkways, tunnels or other means of access to the Building and the
Building's parking facilities, all common areas, including any lobbies or
plazas, and any other improvements or landscaping on the Land.
3.Term. The term of this Lease (the "Lease Term") shall commence on the
date first hereinabove set forth (the "Term Commencement Date"), and,
unless sooner terminated as provided in this Lease, shall end on the expiration
of the period designated in Article 1(i) above, which period shall commence on
the Rental Commencement Date, unless the Rental Commencement Date shall be other
than the first day of a calendar month, in which event such period shall
commence on the first day of the calendar month following the month in which the
Rental Commencement Date occurs. Promptly after the Rental Commencement Date,
Landlord shall send to Tenant a Supplemental Notice in the form of Exhibit "C"
attached hereto by this reference made a part hereof and executed by Landlord's
authorized agent, specifying the Rental Commencement Date, the date of
expiration of the Lease Term in accordance with Article 1(i) above and certain
other matters as therein set forth. The date set forth in said Notice shall be
determinative of the Rental Commencement Date of this Lease.
4.Possession. The obligations of Landlord and Tenant with respect to the
initial leasehold improvements to the Demised Premises are set forth
in Exhibit "D" attached hereto and by this reference made a part hereof. Taking
of possession by Tenant shall be deemed conclusively to establish that
Landlord's construction obligations with respect to the Demised Premises have
been completed in accordance with the plans and specifications approved by
Landlord and Tenant and that the Demised Premises, to the extent of Landlord's
construction obligations with respect thereto, are in good and satisfactory
condition.
5.Rental Payments.
_______________________(a) Commencing on the Rental Commencement Date, and
continuing thereafter throughout the Lease Term, Tenant hereby agrees to pay all
Rent due and payable under this Lease. As used in this Lease, the term "Rent"
shall mean the Base Rental, Rental Adjustment, Tenant's Forecast Additional
Rental, Tenant's Additional Rental, and any other amounts that Tenant assumes or
agrees to pay under the provisions of this Lease that are owed to Landlord,
including, without limitation, any and all other sums that may become due by
reason of any default of Tenant or failure on Tenant's part to comply with the
agreements, terms, covenants and conditions of this Lease to be performed by
Tenant. Base Rental, together with Tenant's Forecast Additional Rental, shall be
due and payable in twelve (12) equal installments on the first day of each
calendar month, commencing on the Rental Commencement Date and continuing
thereafter throughout the Lease Term and any extensions or renewals thereof.
Tenant hereby agrees to pay such Rent to Landlord at Landlord's address as
provided herein (or such other address as may be designated by Landlord from
time to time) monthly in advance. Tenant shall pay all Rent and other sums of
money as shall become due from and payable by Tenant to Landlord under this
Lease at the times and in the manner provided in this Lease, without demand,
set-off or counterclaim.
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__________________________(b) If the Rental Commencement Date is other than the
first day of a calendar month or if this Lease terminates on a day other than
the last day of a calendar month, then the installments of Base Rental and
Tenant's Forecast Additional Rental for such month or months shall be prorated
on a daily basis and the installment or installments so prorated shall be paid
in advance. Also, if the Rental Commencement Date occurs on a day other than the
first day of a calendar year, or if this Lease expires or is terminated on a day
other than the last day of a calendar year, Tenant's Additional Rental shall be
prorated for such commencement or termination year, as the case may be, by
multiplying such Tenant's Additional Rental by a fraction, the numerator of
which shall be the number of days of the Lease Term (from and after the Rental
Commencement Date) during the commencement or expiration or termination year, as
the case may be, and the denominator of which shall be 365, and the calculation
described in Article 8 hereof shall be made as soon as possible after the
expiration or termination of this Lease, Landlord and Tenant hereby agreeing
that the provisions relating to said calculation shall survive the expiration or
termination of this Lease.
6.Base Rental. From and after the Rental Commencement Date, Tenant shall
pay to Landlord a base annual rental (herein called "Base Rental") equal to the
Base Rental Rate set forth in Article 1(j) above multiplied by the Rentable
Floor Area of the Demised Premises as set forth in Article 1(g) above.
7.Rental Adjustment.
__________________________(a)Tenant shall pay to Landlord as additional rental a
rental adjustment (the "Rental Adjustment") which shall be determined as of the
first anniversary of the Rental Commencement Date and as of each January 1
thereafter during the Lease Term in the manner hereinafter provided (each such
date being hereinafter in this Article 7 called an "Adjustment Date", and each
period of time from any given Adjustment Date through the day before the next
succeeding Adjustment Date being herein called an "Adjustment Period"). Each
such Rental Adjustment shall be payable in monthly installments in advance on
the first day of every such calendar month during the Adjustment Period for
which such Rental Adjustment was determined. A prorated monthly installment,
based on the number of days in the partial month, shall be paid for any fraction
of a month if the Rental Commencement Date falls on any day other than the first
day of a calendar month, or if the Lease Term is terminated or expires on any
other day than the last day of a calendar month. Landlord shall use reasonable
efforts to notify Tenant in writing of the monthly amount of the Rental
Adjustment for each Adjustment Period at least ten (10) days prior to the date
on which the first installment of such Rental Adjustment is due and payable, or
as soon thereafter as is practicable. Failure by Landlord to notify Tenant of
the monthly amount of such Rental Adjustment shall not prejudice Landlord's
right to collect the full amount of such Rental Adjustment, nor shall Landlord
be deemed to have forfeited or surrendered its rights to collect such Rental
Adjustment which may have become due pursuant to this Article 7, and Tenant
agrees to pay upon demand all accrued but unpaid Rental Adjustment.
_________________________(b)For each Adjustment Period, each monthly installment
of the Rental Adjustment shall be an amount equal to one-twelfth (1/12th) of the
product of: (i) the annual Base Rental set forth in Article 6 hereof, multiplied
by (ii) the "percentage increase" (as hereinafter defined), if any, in the
"Index" (as hereinafter defined), as such percentage increase is determined with
respect to the Adjustment Date beginning such Adjustment Period.
__________________________(c) For purposes of Articles 7(a) and (b) above, the
"percentage increase," if any, in the Index for each Adjustment Date shall mean
and equal the quotient (expressed as a decimal) determined by dividing (i) the
difference obtained by subtracting the Index for the calendar month in which the
Rent Commencement Date falls from the Index for the calendar month of October
immediately preceding the Adjustment Date in question [if the difference so
obtained is negative, then this factor (i) shall be deemed to be zero], by (ii)
the Index for the calendar month in which the Rental Commencement Date falls.
__________________________(d) The term "Index" as used in Articles 7(b) and (c)
above shall mean the Consumer Price Index for All Urban Consumers, U.S. City
Average, All Items (1982-84 = 100), published by the Bureau of Labor Statistics
of the United States Department of Labor. If the Bureau of Labor Statistics
should discontinue the publication of the Index, or publish the same less
frequently, or alter the same in some manner, then Landlord shall adopt a
substitute Index or substitute procedure which reasonably reflects and monitors
consumer prices.
_______________________(e)Nothing contained in this Article 7 shall be construed
at any time so to reduce the monthly installments of Base Rental payable
hereunder below the amount set forth in Article 6 of this Lease. Notwithstanding
anything contained in this Lease to the contrary, it is agreed that (i) the
Rental Adjustment for any given Adjustment Period shall not be less than the
Rental Adjustment for the immediately preceding Adjustment Period, and (ii)
Tenant's payments pursuant to this Article 7 shall not be deemed payments of
rent as that term is construed relative to governmental wage and price controls
or analogous governmental actions affecting the amount of rent which Landlord
may charge Tenant.
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8._________Additional Rental.
________________________(a) For purposes of this Lease, "Tenant's Forecast
Additional Rental" shall mean Landlord's reasonable estimate of Tenant's
Additional Rental for each calendar year or portion thereof during the Lease
Term. If at any time it appears to Landlord that Tenant's Additional Rental for
the current calendar year then at hand will vary from Landlord's estimate,
Landlord shall have the right to revise, by notice to Tenant, its estimate for
such year, and subsequent payments by Tenant for such year shall be based upon
such revised estimate of Tenant's Additional Rental. Failure to make a revision
contemplated by the immediately preceding sentence shall not prejudice
Landlord's right to collect the full amount of Tenant's Additional Rental. Prior
to the first day of January immediately following the expiration of the Base
Year, and thereafter prior to the beginning of each calendar year during the
Lease Term, including any extensions or renewals thereof, Landlord shall present
to Tenant a statement of Tenant's Forecast Additional Rental for such calendar
year; provided, however, that if such statement is not given prior to the
beginning of any calendar year as aforesaid, Tenant shall continue to pay during
the next ensuing calendar year on the basis of the amount of Tenant's Forecast
Additional Rental payable during the calendar year just ended until the month
after such statement is delivered to Tenant.
__________________________(b) For purposes of this Lease, "Tenant's Additional
Rental" shall mean for each calendar year (or portion thereof) during the Lease
Term the excess of (x) the Operating Expense Amount (defined below) multiplied
by the number of square feet of Rentable Floor Area of the Demised Premises,
over (y) the Base Operating Expenses (defined below) multiplied by the number of
square feet of Rentable Floor Area of the Demised Premises. As used herein,
"Operating Expense Amount" shall mean the amount of Operating Expenses (as
defined below) for such calendar year divided by the greater of (i) ninety-five
percent (95%) of the number of square feet of Rentable Floor Area of the
Building, or (ii) the total number of square feet of Rentable Floor Area
occupied in the Building for such calendar year on an average annualized basis;
provided, however, if the amount is calculated under (i) above, the Operating
Expenses actually incurred with respect to such calendar year shall be adjusted
to reflect the amount of Operating Expenses which would have been incurred if
the Building were ninety-five percent (95%) occupied throughout such calendar
year. As used herein, the term "Base Operating Expenses" shall mean the
Operating Expenses paid or incurred by Landlord in the Base Year (as hereinafter
defined) as if the Building was ninety-five percent (95%) occupied throughout
the Base Year, divided by ninety-five percent (95%) of the number of square feet
of Rentable Floor Area of the Building. If the Building was not ninety-five
percent (95%) occupied throughout the Base Year, then the Base Operating
Expenses shall be an amount which fairly reflects what the Operating Expenses
would have been in the Base Year had the Building been ninety-five percent (95%)
occupied throughout the Base Year, as determined by Landlord in its reasonable
opinion. As used herein, "Base Year" shall mean calendar year 2000 [the calendar
year in which the Rental Commencement Date occurs, if no year is inserted].
_________________________(c)Within one hundred fifty (150) days after the end of
the calendar year in which the Rental Commencement Date occurs and of each
calendar year thereafter during the Lease Term, or as soon thereafter as
practicable, Landlord shall provide Tenant a statement showing the Operating
Expenses for said calendar year, as prepared by an authorized representative of
Landlord, and a statement prepared by Landlord comparing Tenant's Forecast
Additional Rental with Tenant's Additional Rental. In the event Tenant's
Forecast Additional Rental exceeds Tenant's Additional Rental for said calendar
year, Landlord shall credit such amount against the Forecast Additional Rental
next due hereunder or, if the Lease Term has expired or is about to expire,
refund such excess to Tenant if Tenant is not in default under this Lease (in
the instance of a default, such excess shall be held as additional security for
Tenant's performance, may be applied by Landlord to cure any such default, and
shall not be refunded until any such default is cured). In the event that the
Tenant's Additional Rental exceeds Tenant's Forecast Additional Rental for said
calendar year, Tenant shall pay Landlord, within thirty (30) days of receipt of
the statement, an amount equal to such difference. The provisions of this Lease
concerning the payment of Tenant's Additional Rental shall survive the
expiration or earlier termination of this Lease.
__________________________(d) Landlord's books and records pertaining to the
calculation of Operating Expenses for any calendar year within the Lease Term
may be audited by Tenant or its representatives at Landlord's office where
Operating Expense records are kept, at Tenant's expense, at any time within
ninety (90) days after Landlord's annual statement is delivered to Tenant for
such calendar year; provided that Tenant shall give Landlord not less than
thirty (30) days' prior written notice of any such audit. If Landlord's
calculations of Tenant's Additional Rental for the audited calendar year was
incorrect, then Tenant shall be entitled to a prompt refund of any overpayment
or Tenant shall promptly pay to Landlord the amount of any underpayment, as the
case may be.
<PAGE>
9.________Operating Expenses.
_________________________(a)For the purposes of this Lease, "Operating Expenses"
shall mean all expenses, costs and disbursements (but not specific costs billed
to specific tenants of the Building) of every kind and nature, computed on an
accrual basis, relating to or incurred or paid in connection with the ownership,
management, operation, repair and maintenance of the Project, including but not
limited to, the following:
_____________________________ (1) wages, salaries and other costs of all on-site
and off-site employees engaged either full or part time in the operation,
management, maintenance or access control of the Project, including taxes,
insurance and benefits relating to such employees, allocated based upon the time
such employees are engaged directly in providing such services;
_____________________________ (2) the cost of all supplies, tools, equipment and
materials used in the operation, management, maintenance and access control of
the Project;
_____________________________ (3) the cost of all utilities for the Project,
including but not limited to the cost of electricity, gas, water, sewer services
and power for heating, lighting, air conditioning and ventilating;
_____________________________ (4) the cost of all maintenance and service
agreements for the Project and the equipment therein, including, but not limited
to, security service, garage operators, window cleaning, elevator maintenance,
HVAC maintenance, janitorial service, landscaping maintenance and customary
landscaping replacement;
_____________________________ (5) the cost of inspections, repairs and general
maintenance of the Project;
_____________________________ (6) amortization (together with reasonable
financing charges, whether or not actually incurred) of the cost of acquisition
and/or installation of capital investment items (including security equipment),
amortized over their respective useful lives, which are installed for the
purpose of reducing operating expenses, promoting safety, complying with
governmental requirements, or maintaining the nature of the Project;
_____________________________ (7) the cost of casualty, rental loss, liability
and other insurance applicable to the Project and Landlord's personal property
used in connection therewith;
_____________________________ (8) the cost of trash and garbage removal, vermin
extermination, and snow, ice and debris removal;
_____________________________ (9) the cost of legal and accounting services
incurred by Landlord in connection with the management, maintenance, operation
and repair of the Project, excluding the owner's or Landlord's general
accounting, such as partnership statements and tax returns, and excluding
services described in Article 9(b)(14) below;
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_____________________________ (10) all taxes, assessments and governmental
charges, whether or not directly paid by Landlord, whether federal, state,
county or municipal and whether they be by taxing districts or authorities
presently taxing the Project or by others subsequently created or otherwise, and
any other taxes and assessments attributable to the Project or its operation
(and the costs of monitoring and contesting any of the same), including business
license taxes and fees (all of the foregoing are herein sometimes collectively
referred to as "Taxes"), excluding, however, taxes and assessments imposed on
the personal property of the tenants of the Project, federal and state taxes on
income, death taxes, franchise taxes, and any taxes (other than business license
taxes and fees) imposed or measured on or by the income of Landlord from the
operation of the Project; provided, however, that if at any time during the
Lease Term, the present method of taxation or assessment shall be so changed
that the whole or any part of the taxes, assessments, levies, impositions or
charges now levied, assessed or imposed on real estate and the improvements
thereon shall be discontinued and as a substitute therefor, or in lieu of or in
addition thereto, taxes, assessments, levies, impositions or charges shall be
levied, assessed and/or imposed wholly or partially as a capita levy or
otherwise on the rents received from the Project or the rents reserved herein or
any part thereof, then such substitute or additional taxes, assessments, levies,
impositions or charges, to the extent so levied, assessed or imposed, shall be
deemed to be included within the Operating Expenses to the extent that such
substitute or additional tax would be payable if the Project were the only
property of the Landlord subject to such tax; and it is agreed that Tenant will
be responsible for ad valorem taxes on its personal property and on the value of
the leasehold improvements in the Demised Premises to the extent that the same
exceed building standard allowances, if said taxes are based upon an assessment
which includes the cost of such leasehold improvements in excess of building
standard allowances (and if the taxing authorities do not separately assess
Tenant's leasehold improvements, Landlord may make an appropriate allocation of
the ad valorem taxes allocated to the Project to give effect to this sentence);
_____________________________ (11) the cost of operating the management office
for the Project, including cost of office supplies, telephone expenses and
non-capital investment equipment and amortization (together with reasonable
financing charges) of the cost of capital investment equipment; and
_____________________________ (12) Tenant acknowledges that the Project is part
of a development, which will or may include other improvements and that certain
of the costs of management, operation and maintenance of the development shall,
from time to time, be allocated among and shared by two or more of the
improvements in the development (including the Project). The determination of
such costs and their allocation shall be made by Landlord in its sole but
reasonable discretion. In addition, Landlord reserves the right to recompute and
adjust the base year of any component of Operating Expenses at any time during
the Lease Term as a result of any reallocation within the Project. Accordingly,
the term "Operating Expenses" as used in this Lease shall, from time to time,
include some costs, expenses and taxes enumerated above which were incurred with
respect to other improvements in the development but which were allocated to and
shared by the Project in accordance with the foregoing. Notwithstanding the
foregoing, Tenant understands and agrees that its rights to use other portions
of the development of which the Project is a part are those available to the
general public and that this Lease does not grant to Tenant additional rights of
use.
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__________________________(b) For purposes of this Lease, and notwithstanding
anything in any other provision of this Lease to the contrary, "Operating
Expenses" shall not include the following:
_____________________________ (1) the cost of any special work or service
performed for any tenant (including Tenant) at such tenant's cost;
_____________________________ (2) the cost of installing, operating and
maintaining any specialty service, such as an observatory, broadcasting
facility, luncheon club, restaurant, cafeteria, retail store, sundry shop,
newsstand, or concession, but only to the extent such costs exceed those which
would normally be expected to be incurred had such space been general office
space;
_____________________________ (3) the cost of correcting defects in
construction;
_____________________________ (4) compensation paid to officers and executives
of Landlord (but it is understood that the on-site building manager and other
on-site employees below the grade of building manager may carry a title such as
vice president and the salaries and related benefits of these officers/employees
of Landlord would be allowable Operating Expenses under Article 9[a][ 1] above);
_____________________________ (5) the cost of any items for which Landlord is
reimbursed by insurance, condemnation or otherwise, except for costs reimbursed
pursuant to provisions similar to Articles 8 and 9 hereof;
_____________________________ (6) the cost of any additions, changes,
replacements and other items which are made in order to prepare for a new
tenant's occupancy;
_____________________________ (7) the cost of repairs incurred by reason of fire
or other casualty;
_____________________________ (8) insurance premiums to the extent Landlord may
be directly reimbursed therefor, except for premiums reimbursed pursuant to
provisions similar to Articles 8 and 9 hereof;
_____________________________ (9) interest on debt or amortization payments on
any mortgage or deed to secure debt (except to the extent specifically permitted
by Article 9[a]) and rental under any ground lease or other underlying lease;
_____________________________ (10) any real estate brokerage commissions or
other costs incurred in procuring tenants or any fee in lieu of such commission;
_____________________________ (11) any advertising expenses incurred in
connection with the marketing of any rentable space;
(12) rental payments for base building equipment such as HVAC equipment and
elevators;
_____________________________ (13) any expenses for repairs or maintenance which
are covered by warranties and service contracts, to the extent such maintenance
and repairs are made at no cost to Landlord; and
_____________________________ (14) legal expenses arising out of the
construction of the improvements on the Land or the enforcement of the
provisions of any lease affecting the Land or Building, including without
limitation this Lease.
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10.Tenant Taxes. Tenant shall pay promptly when due all taxes directly or
indirectly imposed or assessed upon Tenant's gross sales, business operations,
machinery, equipment, trade fixtures and other personal property or assets,
whether such taxes are assessed against Tenant, Landlord or the Building. In the
event that such taxes are imposed or assessed against Landlord or the Building,
Landlord shall furnish Tenant with all applicable tax bills, public charges and
other assessments or impositions and Tenant shall forthwith pay the same either
directly to the taxing authority or, at Landlord's option, to Landlord.
11.Payments. All payments of Rent and other payments to be made to Landlord
shall be made on a timely basis and shall be payable to Landlord or as Landlord
may otherwise designate. All such payments shall be mailed or delivered to
Landlord's Address designated in Article 1(b) above or at such other place as
Landlord may designate from time to time in writing. If mailed, all payments
shall be mailed in sufficient time and with adequate postage thereon to be
received in Landlord's account by no later than the due date for such payment.
Tenant agrees to pay to Landlord Fifty Dollars ($50.00) for each check presented
to Landlord in payment of any obligation of Tenant which is not paid by the bank
on which it is drawn, together with interest from and after the due date for
such payment at the rate of ten percent (10%) per annum on the amount due.
12.Late Charges. Any Rent or other amounts payable to Landlord under this
Lease, if not paid by the fifth day of the month for which such Rent is due, or
by the due date specified on any invoices from Landlord for any other amounts
payable hereunder, shall incur a late charge of Fifty Dollars ($50.00) for
Landlord's administrative expense in processing such delinquent payment and in
addition thereto shall bear interest at the rate of ten percent (10%) per annum
from and after the due date for such payment. Notwithstanding anything to the
contrary contained in this Lease, in no event shall the rate of interest payable
on any amount due under this Lease exceed the legal limits for such interest
enforceable under applicable law.
13.Use Rules. The Demised Premises shall be used for executive, general
administrative and office space purposes and no other purposes and in accordance
with all applicable laws, ordinances, rules and regulations of governmental
authorities and the Rules and Regulations attached hereto and made a part
hereof. Tenant covenants and agrees that it will, at its expense, comply with
all laws, ordinances, orders, directions, requirements, rules and regulations of
all governmental authorities (including federal, state, county and municipal
authorities), now in force or which may hereafter be in force, which shall
impose any duty upon Landlord or Tenant with respect to the use, occupancy or
alteration of the Demised Premises, and of all insurance bodies applicable to
the Demised Premises or to the Tenant's use or occupancy thereof. Tenant
covenants and agrees to abide by the Rules and Regulations in all respects as
now set forth and attached hereto or as hereafter promulgated by Landlord.
Landlord shall have the right at all times during the Lease Term to publish and
promulgate and thereafter enforce such rules and regulations or changes in the
existing Rules and Regulations as it may reasonably deem necessary in its sole
discretion to protect the tenantability, safety, operation, and welfare of the
Demised Premises and the Project.
14.Alterations. Except for any initial improvement of the Demised Premises
pursuant to Exhibit "D", which shall be governed by the provisions of said
Exhibit "D", Tenant shall not make, suffer or permit to be made any alterations,
additions or improvements to or of the Demised Premises or any part thereof, or
attach any fixtures or equipment thereto, without first obtaining Landlord's
written consent. With respect to any alteration, addition or improvement which
does not affect the structure of the Building, does not affect any of the
Building's systems (e.g., mechanical, electrical or plumbing), does not diminish
the capacity of such Building systems available to other portions of the
Building, is not visible from the common areas or exterior of the Building, and
is in full compliance with all laws, orders, ordinances, directions,
requirements, rules and regulations of all governmental authorities, Landlord's
consent shall not be unreasonably withheld. Any such alterations, additions or
improvements to the Demised Premises consented to by Landlord shall be made by
Landlord or under Landlord's supervision for Tenant's account and Tenant shall
reimburse Landlord for all costs thereof (including a reasonable charge for
Landlord's overhead), as Rent, within ten (10) days after receipt of a
statement. All such alterations, additions and improvements shall become
Landlord's property at the expiration or earlier termination of the Lease Term
and shall remain on the Demised Premises without compensation to Tenant unless
Landlord elects by notice to Tenant to have Tenant remove such alterations,
additions and improvements, in which event, notwithstanding any contrary
provisions respecting such alterations, additions and improvements contained in
Article 32 hereof, Tenant shall promptly restore, at its sole cost and expense,
the Demised Premises to its condition prior to the installation of such
alterations, additions and improvements, normal wear and tear excepted.
<PAGE>
15.Repairs.
__________________________(a) Landlord shall maintain in good order and repair,
subject to normal wear and tear and subject to casualty and condemnation, the
Building (excluding the Demised Premises and other portions of the Building
leased to other tenants), the Building parking facilities, the public areas and
the landscaped areas. Notwithstanding the foregoing obligation, the cost of any
repairs or maintenance to the foregoing necessitated by the intentional acts or
negligence of Tenant or its agents, contractors, employees, invitees, licensees,
tenants or assigns, shall be borne solely by Tenant and shall be deemed Rent
hereunder and shall be reimbursed by Tenant to Landlord upon demand. Landlord
shall not be required to make any repairs or improvements to the Demised
Premises except structural repairs necessary for safety and tenant ability.
__________________________(b) Tenant covenants and agrees that it will take good
care of the Demised Premises and all alterations, additions and improvements
thereto and will keep and maintain the same in good condition and repair, except
for normal wear and tear. Tenant shall at once report, in writing, to Landlord
any defective or dangerous condition known to Tenant. To the fullest extent
permitted by law, Tenant hereby waives all rights to make repairs at the expense
of Landlord or in lieu thereof to vacate the Demised Premises as may be provided
by any law, statute or ordinance now or hereafter in effect. Landlord has no
obligation and has made no promise to alter, remodel, improve, repair, decorate
or paint the Demised Premises or any part thereof, except as specifically and
expressly herein set forth.
16.Landlord's Right of Entry. Landlord shall retain duplicate keys to all
doors of the Demised Premises and Landlord and its agents, employees and
independent contractors shall have the right to enter the Demised Premises at
reasonable hours to inspect and examine same, to make repairs, additions,
alterations and improvements, to exhibit the Demised Premises to mortgagees,
prospective mortgagees, purchasers or tenants, and to inspect the Demised
Premises to ascertain that Tenant is complying with all of its covenants and
obligations hereunder, all without being liable to Tenant in any manner
whatsoever for any damages arising therefrom; provided, however, that Landlord
shall, except in case of emergency, afford Tenant such prior notification of an
entry into the Demised Premises as shall be reasonably practicable under the
circumstances. Landlord shall be allowed to take into and through the Demised
Premises any and all materials that may be required to make such repairs,
additions, alterations or improvements. During such time as such work is being
carried on, in or about the Demised Premises, the Rent provided herein shall not
abate, and Tenant waives any claim or cause of action against Landlord for
damages by reason of interruption of Tenant's business or loss of profits
therefrom because of the prosecution of any such work or any part thereof.
17.Insurance. Tenant shall procure at its expense and maintain throughout
the Lease Term a policy or policies of commercial property insurance, issued on
an "all risks" basis insuring the full replacement cost of its furniture,
equipment, supplies and other property owned, leased, held or possessed by it
and contained in the Demised Premises, together with the excess value of the
improvements to the Demised Premises over the Tenant Improvement Allowance (with
a replacement cost endorsement sufficient to prevent Tenant from becoming a
co-insurer), and workmen's compensation insurance as required by applicable law.
Tenant shall also procure at its expense and maintain throughout the Lease Term
a policy or policies of commercial general liability insurance, including but
not limited to, insurance assumed or contractual liability under this Lease,
written on an occurrence basis and insuring Tenant, Landlord and any other
person designated by Landlord, against any and all liability for injury to or
death of a person or persons and for damage to property occasioned by or arising
out of any construction work being done on the Demised Premises, or arising out
of the condition, use or occupancy of the Demised Premises, or in any way
occasioned by or arising out of the activities of Tenant, its agents,
contractors, employees, guests or licensees in the Demised Premises, or other
portions of the Building or the Project, the limits of such policy or policies
to be in combined single limits for both damage to property and personal injury
and in amounts not less than Three Million Dollars ($3,000,000.00) for each
occurrence. Such insurance shall, in addition, extend to any liability of Tenant
arising out of the indemnities provided for in this Lease. Tenant shall require
any contractor performing work on the Demised Premises to carry and maintain, at
no expense to Landlord, non-deductible comprehensive general liability
insurance, including but not limited to, contractor's liability coverage,
contractual liability coverage, completed operations coverage, broad form
property damage endorsement and contractor's protection liability coverage in
such amounts and with such companies as Landlord shall approve. Tenant shall
also carry such other types of insurance in form and amount which Landlord shall
reasonably deem to be prudent for Tenant to carry, should the circumstances or
conditions so merit Tenant carrying such type of insurance. All insurance
policies procured and maintained by Tenant pursuant to this Article 17 shall
name Landlord and any additional parties designated by Landlord as additional
insured, shall be carried with companies licensed to do business in the State of
Tennessee reasonably satisfactory to Landlord and shall be non-cancellable and
not subject to material change except after thirty (30) days' written notice to
Landlord. Such policies or duly executed certificates of insurance with respect
thereto, accompanied by proof of payment of the premium therefor, shall be
delivered to Landlord prior to the Rental Commencement Date, and renewals of
such policies shall be delivered to Landlord at least thirty (30) days prior to
the expiration of each respective policy term.
<PAGE>
18.Waiver of Subrogation. Landlord and Tenant shall each have included in
all policies of commercial property insurance, commercial general liability
insurance, and business interruption and other insurance respectively obtained
by them covering the Demised Premises, the Building and contents therein, a
waiver by the insurer of all right of subrogation against the other in
connection with any loss or damage thereby insured against. Any additional
premium for such waiver shall be paid by the primary insured. To the full extent
permitted by law, Landlord and Tenant each waives all right of recovery against
the other for, and agrees to release the other from liability for, loss or
damage to the extent such loss or damage is covered by valid and collectible
insurance in effect at the time of such loss or damage or would be covered by
the insurance required to be maintained under this Lease by the party seeking
recovery.
19.Default.
__________________________(a) The following events shall be deemed to be events
of default by Tenant under this Lease: (i) Tenant shall fail to pay any
installment of Rent or any other charge or assessment against Tenant pursuant to
the terms hereof within five (5) days after the due date thereof; (ii) Tenant
shall fail to comply with any term, provision, covenant or warranty made under
this Lease by Tenant, other than the payment of the Rent or any other charge or
assessment payable by Tenant, and shall not cure such failure within fifteen
(15) days after notice thereof to Tenant; (iii) Tenant or any guarantor of this
Lease shall make a general assignment for the benefit of creditors, or shall
admit in writing its inability to pay its debts as they become due, or shall
file a petition in bankruptcy, or shall be adjudicated as bankrupt or insolvent,
or shall file a petition in any proceeding seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, or shall file an
answer admitting or fail timely to contest the material allegations of a
petition filed against it in any such proceeding; (iv) a proceeding is commenced
against Tenant or any guarantor of this Lease seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, and such
proceeding shall not have been dismissed within forty-five (45) days after the
commencement thereof; (v) a receiver or trustee shall be appointed for the
Demised Premises or for all or substantially all of the assets of Tenant or of
any guarantor of this Lease; (vi) Tenant shall abandon or vacate all or any
portion of the Demised Premises or fail to take possession thereof as provided
in this Lease; (vii) Tenant shall do or permit to be done anything which creates
a lien upon the Demised Premises or the Project and such lien is not removed or
discharged within fifteen (15) days after the filing thereof; (viii) Tenant
shall fail to return a properly executed instrument to Landlord in accordance
with the provisions of Article 27 hereof within the time period provided for
such return following Landlord's request for same as provided in Article 27; or
(ix) Tenant shall fail to return a properly executed estoppel certificate to
Landlord in accordance with the provisions of Article 28 hereof within the time
period provided for such return following Landlord's request for same as
provided in Article 28.
<PAGE>
__________________________(b) Upon the occurrence of any of the aforesaid events
of default, Landlord shall have the option to pursue any one or more of the
following remedies without any notice or demand whatsoever: (i) terminate this
Lease, in which event Tenant shall immediately surrender the Demised Premises to
Landlord and if Tenant fails to do so, Landlord may without prejudice to any
other remedy which it may have for possession or arrearages in Rent, enter upon
and take possession of the Demised Premises and expel or remove Tenant and any
other person who may be occupying said Demised Premises or any part thereof, by
force, if necessary, without being liable for prosecution or any claim of
damages therefor; Tenant hereby agreeing to pay to Landlord on demand the amount
of all loss and damage which Landlord may suffer by reason of such termination,
whether through inability to relet the Demised Premises on satisfactory terms or
otherwise; (ii) terminate Tenant's right of possession (but not this Lease) and
enter upon and take possession of the Demised Premises and expel or remove
Tenant and any other person who may be occupying said Demised Premises or any
part thereof, by entry (including the use of force, if necessary), dispossessory
suit or otherwise, without thereby releasing Tenant from any liability
hereunder, without terminating this Lease, and without being liable for
prosecution or any claim of damages therefor and, if Landlord so elects, make
such alterations, redecorations and repairs as, in Landlord's judgment, may be
necessary to relet the Demised Premises, and Landlord may, but shall be under no
obligation to do so, relet the Demised Premises or any portion thereof in
Landlord's or Tenant's name, but for the account of Tenant, for such term or
terms (which may be for a term extending beyond the Lease Term) and at such
rental or rentals and upon such other terms as Landlord may deem advisable, with
or without advertisement, and by private negotiations, and receive the rent
therefor, Tenant hereby agreeing to pay to Landlord the deficiency, if any,
between all Rent reserved hereunder and the total rental applicable to the Lease
Term hereof obtained by Landlord re-letting, and Tenant shall be liable for
Landlord's expenses in redecorating and restoring the Demised Premises and all
costs incident to such re-letting, including broker's commissions and lease
assumptions, and in no event shall Tenant be entitled to any rentals received by
Landlord in excess of the amounts due by Tenant hereunder; or (iii) enter upon
the Demised Premises by force, if necessary, without being liable for
prosecution or any claim of damages therefor, and do whatever Tenant is
obligated to do under the terms of this Lease; and Tenant agrees to reimburse
Landlord on demand for any expenses including, without limitation, reasonable
attorneys' fees which Landlord may incur in thus effecting compliance with
Tenant's obligations under this Lease and Tenant further agrees that Landlord
shall not be liable for any damages resulting to Tenant from such action,
whether caused by negligence of Landlord or otherwise. If this Lease is
terminated by Landlord as a result of the occurrence of an event of default,
Landlord may declare the entire amount of Rent and other charges and assessments
which in Landlord's reasonable determination would become due and payable during
the remainder of the Lease Term (including, but not limited to, increases in
Rent pursuant to Article 7 hereof), discounted to present value by using a
discount factor of eight percent (8%) per annum, to be due and payable
immediately. Upon the acceleration of such amounts, Tenant agrees to pay the
same at once, together with all Rent and other charges and assessments
theretofore due, at Landlord's address as provided herein; provided, however,
that such payment shall not constitute a penalty or forfeiture but shall
constitute liquidated damages for Tenant's failure to comply with the terms and
provisions of this Lease (Landlord and Tenant agreeing that Landlord's actual
damages in such event arc impossible to ascertain and that the amount set forth
above is a reasonable estimate thereof). Upon making the entire such payment,
Tenant shall receive from Landlord all rents received by Landlord from other
tenants renting the Demised Premises or any portion thereof during the Lease
Term (with appropriate allocations of such rents in the event such other tenants
lease space in addition to the Demised Premises), provided that the monies to
which Tenant shall so become entitled shall in no event exceed the entire amount
actually paid by Tenant to Landlord pursuant to the preceding sentence, less all
of Landlord's costs and expenses (including, without limitation, Landlord's
expenses in redecorating and restoring the Demised Premises and all costs
incident to such reletting, including broker's commissions and lease
assumptions) incurred in connection with or in any way related to the reletting
of the Demised Premises.
<PAGE>
__________________________(c) Pursuit of any of the foregoing remedies shall not
preclude pursuit of any other remedy herein provided or any other remedy
provided by law or at equity, nor shall pursuit of any remedy herein provided
constitute an election of remedies thereby excluding the later election of an
alternate remedy, or a forfeiture or waiver of any Rent or other charges and
assessments payable by Tenant and due to Landlord hereunder or of any damages
accruing to Landlord by reason of violation of any of the terms, covenants,
warranties and provisions herein contained. No reentry or taking possession of
the Demised Premises by Landlord or any other action taken by or on behalf of
Landlord shall be construed to be an acceptance of a surrender of this Lease or
an election by Landlord to terminate this Lease unless written notice of such
intention is given to Tenant. Forbearance by Landlord to enforce one or more of
the remedies herein provided upon an event of default shall not be deemed or
construed to constitute a waiver of such default. In determining the amount of
loss or damage which Landlord may suffer by reason of termination of this Lease
or the deficiency arising by reason of any reletting of the Demised Premises by
Landlord as above provided, allowance shall be made for the expense of
repossession. Tenant agrees to pay to Landlord all costs and expenses incurred
by Landlord in the enforcement of this Lease, including without limitation, the
fees of Landlord's attorneys as provided in Article 25 hereof.
20.Waiver of Breach. No waiver of any breach of the covenants, warranties,
agreements, provisions, or conditions contained in this Lease shall be construed
as a waiver of said covenant, warranty, provision, agreement or condition or of
any subsequent breach thereof, and if any breach shall occur and afterwards be
compromised, settled or adjusted, this Lease shall continue in full force and
effect as if no breach had occurred.
<PAGE>
21.Assignment and Subletting. Tenant shall not, without the prior written
consent of Landlord, assign this Lease or any interest herein or in the Demised
Premises, or mortgage, pledge, encumber, hypothecate or otherwise transfer or
sublet the Demised Premises or any part thereof or permit the use of the Demised
Premises by any party other than Tenant. Consent to one or more such transfers
or subleases shall not destroy or waive this provision, and all subsequent
transfers and subleases shall likewise be made only upon obtaining the prior
written consent of Landlord. Without limiting the foregoing prohibition, in no
event shall Tenant assign this Lease or any interest herein, whether directly,
indirectly or by operation of law, or sublet the Demised Premises or any part
thereof or permit the use of the Demised Premises or any part thereof by any
party if such proposed assignment, subletting or use would contravene any
restrictive covenant (including any exclusive use) granted to any other tenant
of the Building or would contravene the provisions of Article 13 of this Lease.
Sublessees or transferees of the Demised Premises for the balance of the Lease
Term shall become directly liable to Landlord for all obligations of Tenant
hereunder, without relieving Tenant (or any guarantor of Tenant's obligations
hereunder) of any liability therefor, and Tenant shall remain obligated for all
liability to Landlord arising under this Lease during the entire remaining Lease
Term including any extensions thereof, whether or not authorized herein. If
Tenant is a partnership, a withdrawal or change, whether voluntary, involuntary
or by operation of law, of partners owning a controlling interest in the Tenant
shall be deemed a voluntary assignment of this Lease and subject to the
foregoing provisions. If Tenant is a corporation, any dissolution, merger,
consolidation or other reorganization of Tenant, or the sale or transfer of a
controlling interest in the capital stock of Tenant, whether in a single
transaction or in a series of transactions, shall be deemed a voluntary
assignment of this Lease and subject to the foregoing provisions. Landlord may,
as a prior condition to considering any request for consent to an assignment or
sublease, require Tenant to obtain and submit current financial statements of
any proposed subtenant or assignee and such other financial documentation
relative to the proposed subtenant or assignee as Landlord may reasonably
require. In the event Landlord consents to an assignment or sublease, Tenant
shall pay to Landlord a fee to cover Landlord's accounting costs plus any legal
fees incurred by Landlord as a result of the assignment or sublease. The consent
of Landlord to any proposed assignment or sublease may be withheld by Landlord
in its sole and absolute discretion. Landlord may require an additional security
deposit from the assignee or subtenant as a condition of its consent. Any
consideration, in excess of the Rent and other charges and sums due and payable
by Tenant under this Lease, paid to Tenant by any assignee of this Lease for its
assignment, or by any sublessee under or in connection with its sublease, or
otherwise paid to Tenant by another party for use and occupancy of the Demised
Premises or any portion thereof, shall be promptly remitted by Tenant to
Landlord as additional rent hereunder and Tenant shall have no right or claim
thereto as against Landlord. No assignment of this Lease consented to by
Landlord shall be effective unless and until Landlord shall receive an original
assignment and assumption agreement, in form and substance satisfactory to
Landlord, signed by Tenant and Tenant's proposed assignee, whereby the assignee
assumes due performance of this Lease to be done and performed for the balance
of the then remaining Lease Term of this Lease. No subletting of the Demised
Premises, or any part thereof, shall be effective unless and until there shall
have been delivered to Landlord an agreement, in form and substance satisfactory
to Landlord, signed by Tenant and the proposed sublessee, whereby the sublessee
acknowledges the right of Landlord to continue or terminate any sublease, in
Landlord's sole discretion, upon termination of this Lease, and such sublessee
agrees to recognize and to attorn to Landlord in the event that Landlord under
such circumstances agrees to continue such sublease. Upon Landlord's receipt of
a request by Tenant to assign this Lease or any interest herein or in the
Demised Premises or to transfer or sublet the Demised Premises or any part
thereof or permit the use of the Demised Premises by any party other than
Tenant, Landlord shall have the right, at Landlord's option, to exercise in
writing any of the following options: (a) To terminate this Lease as to the
portion of the Demised Premises proposed to be assigned or sublet; (b) to
consent to the proposed assignment or sublease, subject to the other terms and
conditions set forth in this Article 21; or (c) to refuse to consent to the
proposed assignment or sublease, which refusal shall be deemed to have been
exercised unless Landlord gives Tenant written notice providing otherwise.
<PAGE>
22.Destruction.
__________________________(a) If the Demised Premises are damaged by fire or
other casualty, the same shall be repaired or rebuilt as speedily as practical
under the circumstances at the expense of Landlord, unless this Lease is
terminated as provided in this Article 22, and during the period required for
restoration, a just and proportionate part of Base Rental shall be abated until
the Demised Premises are repaired or rebuilt.
__________________________(b) If the Demised Premises are (i) damaged to such an
extent that repairs cannot, in Landlord's judgment, be completed within one
hundred eighty (180) days after the date of the commencement of repair of the
casualty, or (ii) damaged or destroyed as a result of a risk which is not
insured under the insurance policies required hereunder, or (iii) damaged or
destroyed during the last eighteen (18) months of the Lease Term, or (iv) if the
Building is damaged in whole or in part (whether or not the Demised Premises are
damaged) to such an extent that the Building cannot, in Landlord's judgment, be
operated economically as an integral unit, then and in any such event Landlord
may at its option terminate this Lease by notice in writing to Tenant within
sixty (60) days after the day of such occurrence. If the Demised Premises are
damaged to such an extent that repairs cannot, in Landlord's judgment, be
completed within one hundred eighty (180) days after the date of the
commencement of repair of the casualty or if the Demised Premises are
substantially damaged during the last eighteen (18) months of the Lease Term,
then in either such event Tenant may elect to terminate this Lease by notice in
writing to Landlord within fifteen (15) days after the date of such occurrence.
Unless Landlord or Tenant elects to terminate this Lease as hereinabove
provided, this Lease will remain in full force and effect and Landlord shall
repair such damage at its expense to the extent required under subparagraph (c)
below as expeditiously as possible under the circumstances.
(c) If Landlord should elect or be obligated pursuant to subparagraph (a) above
to repair or rebuild because of any damage or destruction, Landlord's obligation
shall be limited to the original Building and any other work or improvements
which were originally performed or installed at Landlord's expense as described
in Exhibit "D" hereto or with the proceeds of the Tenant Improvement Allowance.
If the cost of performing such repairs exceeds the actual proceeds of insurance
paid or payable to Landlord on account of such casualty, or if Landlord's
mortgagee or the lessor under a ground or underlying lease shall require that
any insurance proceeds from a casualty loss be paid to it, Landlord may
terminate this Lease unless Tenant, within fifteen (15) days after demand
therefor, deposits with Landlord a sum of money sufficient to pay the difference
between the cost of repair and the proceeds of the insurance available to
Landlord for such purpose.
__________________________(d) In no event shall Landlord be liable for any loss
or damage sustained by Tenant by reason of casualties mentioned hereinabove or
any other accidental casualty.
23.Landlord's Lien. Landlord shall at all times have a valid first lien
upon all of the personal property of Tenant situated in the Demised Premises to
secure payment of Rent and other sums and charges due hereunder from Tenant to
Landlord and to secure the performance by Tenant of each and all of the
covenants, warranties, agreements and conditions hereof. Said personal property
shall not be removed from the Demised Premises without the consent of Landlord
until all arrearage in Rent and other charges as well as any and all other sums
of money due hereunder shall first have been paid and discharged and until this
Lease and all of the covenants, conditions, agreements and provisions hereof
have been fully performed by Tenant. Tenant shall from time to time execute any
financing statements and other instruments necessary to perfect the security
interest granted herein. The lien herein granted may be foreclosed in the manner
and form provided by law for the foreclosure of security instruments or chattel
mortgages, or in any other manner provided by law. This Lease is intended as and
constitutes a security agreement within the meaning of the Uniform Commercial
Code of the State of Tennessee.
<PAGE>
24.Services by Landlord. Landlord shall provide the Building Standard
Services described on Exhibit "E" attached hereto and by this reference made a
part hereof.
25.Attorneys' Fees and Homestead. If any Rent or other debt owing by Tenant
to Landlord hereunder is collected by or through an attorney-at-law, Tenant
agrees to pay an additional amount equal to fifteen percent (15%) of such sum as
attorneys' fees. If Landlord uses the services of any attorney in order to
secure compliance with any other provisions of this Lease, to recover damages
for any breach or default of any other provisions of this Lease, or to terminate
this Lease or evict Tenant, Tenant shall reimburse Landlord upon demand for any
and all attorneys' fees and expenses so incurred by Landlord. Tenant waives all
homestead rights and exemptions which it may have under any law against any
obligation owing under this Lease, and assigns to Landlord its homestead and
exemptions to the extent necessary to secure payment and performance of its
covenants and agreements hereunder.
26.Time. Time is of the essence of this Lease and whenever a certain day is
stated for payment or performance of any obligation of Tenant or Landlord, the
same enters into and becomes a part of the consideration hereof.
27.Subordination and Attornment.
__________________________(a) Tenant agrees that this Lease and all rights of
Tenant hereunder are and shall be subject and subordinate to any ground or
underlying lease which may now or hereafter be in effect regarding the Project
or any component thereof, to any mortgage now or hereafter encumbering the
Demised Premises or the Project or any component thereof, to all advances made
or hereafter to be made upon the security of such mortgage, to all amendments,
modifications, renewals, consolidations, extensions and restatements of such
mortgage, and to any replacements and substitutions for such mortgage. The terms
of this provision shall be self-operative and no further instrument of
subordination shall be required. Tenant, however, upon request of any party in
interest, shall execute promptly such instrument or certificates as may be
reasonably required to carry out the intent of this provision.
__________________________(b) If any mortgagee or lessee under a ground or
underlying lease elects to have this Lease superior to its mortgage or lease and
signifies its election in the instrument creating its lien or lease or by
separate recorded instrument, then this Lease shall be superior to such mortgage
or lease, as the case may be. The term "mortgage", as used in this Lease,
includes any deed to secure debt, deed of trust or security deed and any other
instrument creating a lien in connection with any other method of financing or
refinancing. The term "mortgagee", as used in this Lease, refers to the
holder(s) of the indebtedness secured by a mortgage.
<PAGE>
__________________________(c) In the event any proceedings are brought for the
foreclosure of, or in the event of exercise of the power of sale under, any
mortgage covering the Demised Premises or the Project, or in the event the
interests of Landlord under this Lease shall be transferred by reason of deed in
lieu of foreclosure or other legal proceedings, or in the event of termination
of any Lease under which Landlord may hold title, Tenant shall, at the option of
the transferee or purchaser at foreclosure or under power of sale, or the lessor
of the Landlord upon such Lease termination, as the case may be (sometimes
hereinafter called "such person"), attorn to such person and shall recognize and
be bound and obligated hereunder to such person as the Landlord under this
Lease; provided, however, that no such person shall be (i) bound by any payment
of Rent for more than one (1) month in advance, accept prepayments, in the
nature of security for the performance by Tenant of its obligation under this
Lease (and then only if such prepayments have been deposited with and are under
the control of such person); (ii) bound by any amendment or modification of this
Lease made without the express written consent of the mortgagee or lessor of the
Landlord, as the case may be; (iii) obligated to cure any defaults under this
Lease of any prior landlord (including Landlord); (iv) liable for any act or
omission of any prior landlord (including Landlord); (v) subject to any offsets
or defenses which Tenant might have against any prior landlord (including
Landlord); or (vi) bound by any warranty or representation of any prior landlord
(including Landlord) relating to work performed by any prior landlord (including
Landlord) under this Lease. Tenant agrees to execute any attornment agreement
not in conflict herewith requested by Landlord, the mortgagee or such person.
Tenant's obligation to attorn to such person shall survive the exercise of any
such power of sale, foreclosure or other proceeding. Tenant agrees that the
institution of any suit, action or other proceeding by any mortgagee to realize
on Landlord's interest in the Demised Premises or the Building pursuant to the
powers granted to a mortgagee under its mortgage, shall not, by operation of law
or otherwise, result in the cancellation or termination of the obligations of
Tenant hereunder. Landlord and Tenant agree that notwithstanding that this Lease
is expressly subject and subordinate to any mortgages, any mortgagee, its
successors and assigns, or other holder of a mortgage or of a note secured
thereby, may sell the Demised Premises or the Building, in the manner provided
in the mortgage and may, at the option of such mortgagee, its successors and
assigns, or other holder of the mortgage or note secured thereby, make such sale
of the Demised Premises or Building subject to this Lease.
28.Estoppel Certificates. Within ten (10) days after request therefor by
Landlord, Tenant agrees to execute and deliver to Landlord in recordable form an
estoppel certificate addressed to Landlord, any mortgagee or assignee of
Landlord's interest in, or purchaser of, the Demised Premises or the Building or
any part thereof, certifying (if such be the case) that this Lease is unmodified
and is in full force and effect (and if there have been modifications, that the
same is in full force and effect as modified and stating said modifications);
that there are no defenses or offsets against the enforcement thereof or stating
those claimed by Tenant; and stating the date to which Rent and other charges
have been paid. Such certificate shall also include such other information as
may reasonably be required by such mortgagee, proposed mortgagee, assignee,
purchaser or Landlord. Any such certificate may be relied upon by Landlord, any
mortgagee, proposed mortgagee, assignee, purchaser and any other party to whom
such certificate is addressed.
29.No Estate. This Lease shall create the relationship of landlord and
tenant only between Landlord and Tenant and no estate shall pass out of
Landlord. Tenant shall have only an usufruct, not subject to levy and sale and
not assignable in whole or in part by Tenant accept as herein provided.
30.Cumulative Rights. All rights, powers and privileges conferred hereunder
upon the parties hereto shall be cumulative to, but not restrictive of, or in
lieu of those conferred by law.
<PAGE>
31.Holding Over. If Tenant remains in possession after expiration or
termination of the Lease Term with or without Landlord's written consent, Tenant
shall become a tenant at sufferance, and there shall be no renewal of this Lease
by operation of law. During the period of any such holding over, all provisions
of this Lease shall be and remain in effect accept that the monthly rental shall
be double the amount of Rent (including any adjustments provided herein) payable
for the last full calendar month of the Lease Term including renewals or
extensions. The inclusion of the preceding sentence in this Lease shall not be
construed as Landlord's consent for Tenant to hold over.
32.Surrender of Premises. Upon the expiration or other termination of this
Lease, Tenant shall quit and surrender to Landlord the Demised Premises and
every part thereof and all alterations, additions and improvements thereto,
broom clean and in good condition and state of repair, reasonable wear and tear
only accepted. If Tenant is not then in default, Tenant shall remove all
personalty and equipment not attached to the Demised Premises which it has
placed upon the Demised Premises, and Tenant shall restore the Demised Premises
to the condition immediately preceding the time of placement thereof. If Tenant
shall fail or refuse to remove all of Tenant's effects, personalty and equipment
from the Demised Premises upon the expiration and termination of this Lease for
any cause whatsoever or upon Tenant being dispossessed by process of law or
otherwise, such effects, personalty and equipment shall be deemed conclusively
to be abandoned and may be appropriated, sold, stored, destroyed or otherwise
disposed of by Landlord without written notice to Tenant or any other party and
without obligation to account for them. Tenant shall pay Landlord on demand any
and all expenses incurred by Landlord in the removal of such property,
including, without limitation, the cost of repairing any damage to the Building
or Project caused by the removal of such property and storage charges (if
Landlord elects to store such property). The covenants and conditions of this
Article 32 shall survive any expiration of termination of this Lease.
33.Notices. All notices required or permitted to be given hereunder shall
be in writing and shall be deemed to have been fully given, whether actually
received or not, when deposited, postage prepaid, in the United States Mail,
certified, return receipt requested, and addressed to Landlord or Tenant at
their respective address set forth hereinabove or at such other address as
either party shall have theretofore given to the other by notice herein
provided. Tenant hereby designates and appoints as its agent to receive notice
of all distraint proceedings and all other notices required under this Lease,
the person in charge of the Demised Premises at the time said notice is given or
occupying said Demised Premises at said time; and, if no person is in charge of
or occupying the said Demised Premises, then such services or notice may be made
by attaching the same, in lieu of mailing, on the main entrance to the Demised
Premises.
34.Damage or Theft of Personal Property. All personal property brought into
the Demised Premises by Tenant, or Tenant's employees, agent, or business
visitors, shall be at the risk of Tenant only, and Landlord shall not be liable
for theft thereof or any damage thereto occasioned by any act of co-tenants,
occupants, invitees or other users of the Building or any other person. Landlord
shall not be at any time be liable for damage to any property.
<PAGE>
35.Eminent Domain.
__________________________(a) If all or part of the Demised Premises shall be
taken for any public or quasi-public use by virtue of the exercise of the power
of eminent domain or by private purchase in lieu thereof, this Lease shall
terminate as to the part so taken as of the date of taking, and, in the case of
a partial taking, either Landlord or Tenant shall have the right to terminate
this Lease as to the balance of the Demised Premises by written notice to the
other within thirty (30) days after such date; provided, however, that a
condition to the exercise by Tenant of such right to terminate shall be that the
portion of the Demised Premises taken shall be of such extent and nature as
substantially to handicap, impede or impair Tenant's use of the balance of the
Demised Premises. If title to so much of the Project is taken that a reasonable
amount of reconstruction thereof will not in Landlord's sole discretion result
in the Building being a practical improvement and reasonably suitable for use
for the purpose for which it is designed, then this Lease shall terminate on the
date that the condemning authority actually takes possession of the part so
condemned or purchased.
__________________________(b) If this Lease is terminated under the provisions
of this Article 35, Rent shall be apportioned and adjusted as of the date of
termination. Tenant shall have no claim against Landlord or against the
condemning authority for the value of any leasehold estate or for the value of
the unexpired Lease Term provided that the foregoing shall not preclude any
claim that Tenant may have against the condemning authority for the unamortized
cost of leasehold improvements, to the extent the same were installed at
Tenant's expense (and not with the proceeds of the Tenant Improvement
Allowance), or for loss of business, moving expenses or other consequential
damages, in accordance with subparagraph (d) below.
__________________________(c) If there is a partial taking of the Project and
this Lease is not thereupon terminated under the provisions of this Article 35,
then this Lease shall remain in full force and effect, and Landlord shall,
within a reasonable time thereafter, repair or reconstruct the remaining portion
of the Building to the extent necessary to make the same a complete
architectural unit; provided, that in complying with its obligations hereunder,
Landlord shall not be required to expend more than the net proceeds of the
condemnation award which are paid to Landlord. Upon any such partial taking,
Landlord shall have the right to reduce the figure described in Article 8(b)(y)
hereof by an amount equal to the product of (x) the amount of tax savings
arising from such partial taking, as determined by Landlord in its sole but
reasonable discretion, divided by the number of square feet of Rentable Floor
Area of the Building, multiplied by (y) the number of square feet of Rentable
Floor Area of the Demised Premises.
__________________________(d) All compensation awarded or paid to Landlord upon
a total or partial taking of the Demised Premises or the Project shall belong to
and be the property of Landlord without any participation by Tenant. Nothing
herein shall be construed to preclude Tenant from prosecuting any claim directly
against the condemning authority for loss of business, for damage to, and cost
of removal of, trade fixtures, furniture and other personal property belonging
to Tenant, and for the unamortized cost of leasehold improvements to the extent
the same were installed at Tenant's expense (and not with the proceeds of the
Tenant Improvement Allowance); provided, however, that no such claim shall
diminish or adversely affect Landlord's award.
__________________________(e) Notwithstanding anything to the contrary contained
in this Article 35, if, during the Lease Term, the use or occupancy of any part
of the Project or the Demised Premises shall be taken or appropriated
temporarily for any public or quasi-public purpose under any governmental law,
ordinance or regulation, or by right of eminent domain, this Lease shall be and
remain unaffected by such taking or appropriation and Tenant shall continue to
pay in full all Rent payable hereunder by Tenant during the Lease Term. In the
event of any such temporary appropriation or taking, Tenant shall be entitled to
receive that portion of any award which represents compensation for the loss of
use or occupancy of the Demised Premises during the Lease Term, and Landlord
shall be entitled to receive that portion of any award which represents the cost
of restoration and compensation for the loss of use or occupancy of the Demised
Premises after the end of the Lease Term.
<PAGE>
36.Parties. The term "Landlord", as used in this Lease, shall include
Landlord and its successors and assigns. It is hereby covenanted and agreed by
Tenant that should Landlord's interest in the Demised Premises cease to exist
for any reason during the Lease Term, then notwithstanding the happening of such
event, this Lease nevertheless shall remain in full force and effect, and Tenant
hereby agrees to attorn to the then owner of the Demised Premises. The term
"Tenant" shall include Tenant and its heirs, legal representatives and
successors, and shall also include Tenant's assignees and sublessees, if this
Lease shall be validly assigned or the Demised Premises sublet for the balance
of the Lease Term or any renewals or extensions thereof. In addition, Landlord
and Tenant covenant and agree that Landlord's right to transfer or assign
Landlord's interest in and to the Demised Premises, or any part or parts
thereof, shall be unrestricted, and that in the event of any such transfer or
assignment by Landlord which includes the Demised Premises, Landlord's
obligations to Tenant hereunder shall cease and terminate, and Tenant shall look
only and solely to Landlord's assignee or transferee for performance thereof.
37. Liability of Tenant. Tenant hereby indemnifies Landlord from and agrees to
hold Landlord harmless against, any and all liability, loss, cost, damage or
expense, including, without limitation, court costs and reasonably attorneys'
fees, imposed on Landlord by any person whomsoever, caused in whole or in part
by any act or omission of Tenant, or any of its employees, contractors,
servants, agents, subtenants, assignees, representatives or invitees, or
otherwise occurring in connection with any default of Tenant hereunder. The
provisions of this Article 37 shall survive any termination of this Lease.
38.Relocation of the Premises.
__________________________(a) In the event the Demised Premises leased to Tenant
contain less than one-half (1/2) of the total square feet of Rentable Floor Area
on the floor on which the Demised Premises are located, Landlord reserves the
right as any time or from time to time, at its option and upon giving not less
than thirty (30) days' prior written notice to Tenant, to transfer and remove
Tenant from the Demised Premises herein specified to any other available rooms
and offices of substantially equal size and area in the Building (or other
building in the development of which the Building is a part) and at an
equivalent Base Rental. Landlord shall bear the expense of said removal together
with the reasonable expense of replacement business cards and stationery and the
expense of any renovation or alterations to said substituted space necessary to
make the same substantially conform in arrangement and layout to the original
space described in this Lease. If Landlord exercises such option, then the
substituted space shall for all purposes hereof be deemed to be and to
constitute the Demised Premises under this Lease and all terms, conditions,
covenants, warranties, agreements and provisions of this Lease including but not
limited to the same Base Rental Rate per square foot of Rentable Floor Area
shall continue in full force and effect and shall apply to the substituted
space. Tenant agrees to vacate the Demised Premises herein specified and
relocate to said substituted space promptly after the substituted space is ready
for Tenant's occupancy as provided herein, and Tenant's failure to do so shall
constitute an event of default by Tenant under this Lease.
__________________________(b) In the event the Demised Premises leased to Tenant
contain less than one-half (1/2) of the total square feet of Rentable Floor Area
on the floor on which the Demised Premises are located, Landlord shall have the
right to terminate this Lease effective at any time during the final twelve (12)
months of the Lease Term upon giving written notice of such election to Tenant
at least ninety (90) days prior to the effective date of such termination. In
the event Landlord shall exercise such option to terminate this Lease, Landlord
shall bear the cost of moving Tenant's furniture, files and other personal
property from the Demised Premises to other office space in the Metropolitan
Knoxville, Tennessee area selected by Tenant, and in addition, the Base Rental
for the last month of Tenant's occupancy of the Demised Premises shall be
waived.
<PAGE>
39.Force Majeure. In the event of strike, lockout, labor trouble, civil
commotion, Act of God, or any other cause beyond a party's control (collectively
"force majeure") resulting in Landlord's inability to supply the services or
perform the other obligations required of Landlord hereunder, this Lease shall
not terminate and Tenant's obligation to pay Rent and all other charges and sums
due and payable by Tenant shall not be affected or excused and Landlord shall
not be considered to be in default under this Lease. If, as a result of force
majeure, Tenant is delayed in performing any of its obligations under this
Lease, other than Tenant's obligation to take possession of the Demised Premises
on or before the Rental Commencement Date and to pay Rent and all other charges
and sums payable by Tenant hereunder, Tenant's performance shall be excused for
a period equal to such delay and Tenant shall not during such period be
considered to be in default under this Lease with respect to the obligation,
performance of which has thus been delayed.
40.Landlord's Liability. Landlord shall have no personal liability with
respect to any of the provisions of this Lease. If Landlord is in default with
respect to its obligations under this Lease, Tenant shall look solely to the
equity of Landlord in and to the Building and the Land for satisfaction of
Tenant's remedies, if any. It is expressly understood and agreed that Landlord's
liability under the terms of this Lease shall in no event exceed the amount of
its interest in and to said Land and Building. In no event shall any partner of
Landlord nor any joint venturer in Landlord, nor any officer, director or
shareholder of Landlord or any such partner or joint venturer of Landlord be
personally liable with respect to any of the provisions of this Lease.
41.Landlord's Covenant of Quiet Enjoyment. Provided Tenant performs the
terms, conditions and covenants of this Lease, and subject to the terms and
provisions hereof, Landlord covenants and agrees to take all necessary steps to
secure and to maintain for the benefit of Tenant the quiet and peaceful
possession of the Demised Premises, for the Lease Term, without hindrance, claim
or molestation by Landlord or any other person lawfully claiming under Landlord.
42.Security Deposits.
__________________________(a) As security for Tenant's obligations to take
possession of the Demised Premises in accordance with the terms of this Lease
and to comply with all of Tenant's covenants, warranties and agreements
hereunder, Tenant shall deposit with Landlord the sum set forth in Article
1(m)(i) above on the date Tenant executes and delivers this Lease to Landlord.
Such amount shall be applied by Landlord, without interest, to the first monthly
installment(s) of Base Rental as they become due hereunder. In the event Tenant
fails to take possession of the Demised Premises as aforesaid, said sum shall be
retained by Landlord for application in reduction, but not in satisfaction, of
damages suffered by Landlord as a result of such breach by Tenant.
__________________________(b) As additional security for the faithful
performance by Tenant throughout the Lease Term, and any extensions or renewals
thereof, of all the terms and conditions of the Lease on the part of Tenant to
be performed, Tenant shall deposit with COMPASS Management & Leasing, Inc., as
agent for Landlord, the sum set forth in Article 1(m)(ii) above on the date
Tenant executes and delivers this Lease to Landlord. Such amount shall be
returned to Tenant, without interest, within twenty (20) days after the day set
for the expiration of the Lease Term, or any extension or renewal thereof,
provided Tenant has fully and faithfully observed and performed all of the
terms, covenants, agreements, warranties and conditions hereof on its part to be
observed and performed. Landlord shall have the right to apply all or any part
of said deposit toward the cure of any default of Tenant. If all or any part of
said security deposit is so applied by Landlord, then Tenant shall immediately
pay to Landlord an amount sufficient to return said security deposit to the
balance on deposit with Landlord prior to said application.
<PAGE>
__________________________(c) In the event of a sale or transfer of Landlord's
interest in the Demised Premises or the Building or a lease by Landlord of the
Building, Landlord shall have the right to transfer the within described
security deposits to the purchaser or lessor, as the case may be, and Landlord
shall be relieved of all liability to Tenant for the return of such security
deposits. Tenant shall look solely to the new owner or lessor for the return of
said security deposits. The security deposits shall not be mortgaged, assigned
or encumbered by Tenant. In the event of a permitted assignment under this Lease
by Tenant, the security deposits shall be held by Landlord as a deposit made by
the permitted assignee and Landlord shall have no further liability with respect
to the return of said security deposits to the original Tenant.
__________________________(d) Neither Landlord nor its agents shall be required
to keep the security deposits separate from their general accounts, it being
agreed that the security deposits may be commingled with other funds of Landlord
or of its agents. It is further agreed and acknowledged by Tenant that Landlord
or its agents shall have the right to deposit the security deposits in an
interest-bearing account, and all interest accrued on the security deposits
shall belong to Landlord and will be retained by Landlord as its property.
43.Hazardous Substances. Tenant hereby covenants and agrees that Tenant
shall not cause or permit any "Hazardous Substances" (as hereinafter defined) to
be generated, placed, held, stored, used, located or disposed of at the Project
or any part thereof, except for Hazardous Substances as are commonly and legally
used or stored as a consequence of using the Demised Premises for general office
and administrative purposes, but only so long as the quantities thereof do not
pose a threat to public health or to the environment or would necessitate a
"response action", as that term is defined in CERCLA (as hereinafter defined),
and so long as Tenant strictly complies or causes compliance with all applicable
governmental rules and regulations concerning the use or production of such
Hazardous Substances. For purposes of this Article 43, "Hazardous Substances"
shall mean and include those elements or compounds which are contained in the
list of Hazardous Substances adopted by the United States Environmental
Protection Agency (EPA) or the list of toxic pollutants designated by Congress
or the EPA which are defined as hazardous, toxic, pollutant, infectious or
radioactive by any other federal, state or local statute, law, ordinance, code,
rule, regulation, order or decree regulating, relating to or imposing liability
(including, without limitation, strict liability) or standards of conduct
concerning, any hazardous, toxic or dangerous waste, substance or material, as
now or at any time hereinafter in effect (collectively "Environmental Laws").
Tenant hereby agrees to indemnify Landlord and hold Landlord harmless from and
against any and all losses, liabilities, including strict liability, damages,
injuries, expenses, including reasonable attorneys' fees, costs of settlement or
judgment and claims of any and every kind whatsoever paid, incurred or suffered
by, or asserted against, Landlord by any person, entity or governmental agency
for, with respect to, or as a direct or indirect result of, the presence in, or
the escape, leakage, spillage, discharge, emission or release from, the Demised
Premises of any Hazardous Substances (including, without limitation, any losses,
liabilities, including strict liability, damages, injuries, expenses, including
reasonable attorneys' fees, costs of any settlement or judgment or claims
asserted or arising under the Comprehensive Environmental Response, Compensation
and Liability Act ["CERCLA"], any so-called federal, state or local "Superfund"
or "Superlien" laws or any other Environmental Law); provided, however, that the
foregoing indemnity is limited to matters arising solely from Tenant's violation
of the covenant contained in this Article. The obligations of Tenant under this
Article shall survive any expiration or termination of this Lease.
<PAGE>
44.Submission of Lease. The submission of this Lease for examination does
not constitute an offer to lease and this Lease shall be effective only upon
execution hereof by Landlord and Tenant and upon execution of any required
Guaranty Agreement annexed hereto and incorporated herein as Exhibit "F".
45.Severability. If any clause or provision of the Lease is illegal,
invalid or unenforceable under present or future laws, the remainder of this
Lease shall not be affected thereby, and in lieu of each clause or provision of
this Lease which is illegal, invalid or unenforceable, there shall be added as a
part of this Lease a clause or provision as nearly identical to the said clause
or provision as may be legal, valid and enforceable.
46.Entire Agreement. This Lease contains the entire agreement of the
parties and no representations, inducements, promises 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 with any obligation of Tenant
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. This Lease may not be altered, waived, amended or
extended except by an instrument in writing signed by Landlord and Tenant. This
Lease is not in recordable form, and Tenant agrees not to record or cause to be
recorded this Lease or any short form or memorandum thereof.
47.Headings. The use of headings herein is solely for the convenience of
indexing the various paragraphs hereof and shall in no event be considered in
construing or interpreting any provision of this Lease.
48.Broker. Broker(s) [as defined in Article 1(n)] is(are) entitled to a
leasing commission from Landlord by virtue of this Lease, which leasing
commission shall be paid by Landlord to Broker(s) in accordance with the terms
of a separate agreement between Landlord and Broker(s). Tenant hereby authorizes
Broker(s) and Landlord to identify Tenant as a tenant of the Building and to
state the amount of space leased by Tenant in advertisements and promotional
materials relating to the Building. Tenant represents and warrants to Landlord
that [except with respect to any Broker(s) identified in Article 1(n)
hereinabove, which has(have) acted as agent for Tenant (and not for Landlord) in
this transaction] no broker, agent, commission salesperson, or other person has
represented Tenant in the negotiations for and procurement of this Lease and of
the Demised Premises and that except with respect to any Broker(s) identified in
Article 1(n) hereinabove] no commissions, fees or compensation of any kind are
due and payable in connection herewith to any broker, agent, commission
salesperson or other person as a result of any act or agreement of Tenant.
Tenant agrees to indemnify and hold Landlord harmless from all loss, liability,
damage, claim, judgment, cost or expense (including reasonable attorneys' fees
and court costs) suffered or incurred by Landlord as a result of a breach by
Tenant of the representation and warranty contained in the immediately preceding
sentence or as a result of Tenant's failure to pay commissions, fees or
compensation due to any broker who represented Tenant, whether or not disclosed,
or as a result of any claim for any fee, commission or similar compensation with
respect to this Lease made by any broker, agent or finder [other than the
Broker(s) identified in Article 1(n) hereinabove] claiming to have dealt with
Tenant, whether or not such claim is meritorious. The parties hereto do hereby
acknowledge and agree that COMPASS Management & Leasing, Inc., a subsidiary of
Equitable Real Estate Investment Management, Inc., has acted as agent for
Landlord in this transaction and shall be paid a commission by Landlord in
connection with this transaction pursuant to the terms of a separate written
commission agreement. COMPASS Management & Leasing, Inc. has not acted as agent
for Tenant in this transaction. Landlord hereby warrants and represents to
Tenant that Landlord has not dealt with any broker, agent or finder other than
COMPASS Management & Leasing, Inc. in connection with this Lease, and, Landlord
hereby agrees to indemnity and hold Tenant harmless from and against any and all
loss, damage, liability, claim, judgment, cost or expense (including, but not
limited to, reasonable attorneys' fees and court costs) that may be incurred or
suffered by Tenant because of any claim for any fee, commission or similar
compensation with respect to this Lease made by any broker, agent or finder
claiming to have represented Landlord.
<PAGE>
49.Governing Law. The laws of the State of Tennessee shall govern the
performance and enforcement of this Lease.
50.Authority. If Tenant executes this Lease as a corporation, each of the
persons executing this Lease on behalf of Tenant does hereby personally
represent and warrant that Tenant is a duly incorporated or a duly qualified (if
a foreign corporation) corporation and is fully authorized and qualified to do
business in the State in which the Demised Premises are located, that the
corporation has full right and authority to enter into this Lease, and that each
person signing on behalf of the corporation is an officer of the corporation and
is authorized to sign on behalf of the corporation. If Tenant signs as a
partnership, joint venture or sole proprietorship or other business entity (each
being herein called "Entity"), each of the persons executing on behalf of Tenant
does hereby covenant and warrant that Tenant is a duly authorized and existing
Entity, that Tenant has full right and authority to enter into this Lease, that
all persons executing this Lease on behalf of the Entity are authorized to do so
on behalf of the Entity, and that such execution is fully binding upon the
Entity and its partners, joint venturers or principal, as the case may be. Upon
the request of Landlord, Tenant shall deliver to Landlord documentation
satisfactory to Landlord evidencing Tenant's compliance with this Article, and
Tenant agrees to promptly execute all necessary and reasonable applications or
documents as reasonably requested by Landlord, required by the jurisdiction in
which the Demised Premises is located, to permit the issuance of necessary
permits and certificates for Tenant's use and occupancy of the Demised Premises.
51.Joint and Several Liability. If Tenant comprises more than one person,
corporation, partnership or other entity, the liability hereunder of all such
persons, corporations, partnerships or other entities shall be joint and
several.
52.Special Stipulations. The special stipulations attached hereto as
Exhibit "G" are hereby incorporated herein by this reference as though fully set
forth (if none, so state). To the extent the special stipulations conflict with
or are inconsistent with the foregoing provisions of this Lease or any exhibit
to this Lease, the special stipulations shall control.
<PAGE>
IN WITNESS WHEREOF, the parties have
hereunto set their hands and seals as of the day, month and year first above
written.
_____________________________
"LANDLORD":
The Equitable Life Assurance Society of the
United States, a New York corporation
By/s/ Terrell E. Daffer
_____________________________
Date _May 3, 2000
Title:Investment Officer
_____________________________
"TENANT":
By:/s/ Jeffrey R. Hazarian
_____________________________
Date
Title:__CFO_________________
Witness:__/s/ James A.Robison
_____________________________
Title:___Treasurer__________
<PAGE>
RULES AND REGULATIONS
1. No sign, picture, advertisement or notice visible from the exterior of
the Demised Premises shall be installed, affixed, inscribed, painted or
otherwise displayed by Tenant on any part of the Demised Premises or the
Building unless the same is first approved by Landlord. Any such sign, picture,
advertisement or notice approved by Landlord shall be painted or installed for
Tenant at Tenant's cost by Landlord or by a party approved by Landlord. No
awnings, curtains, blinds, shades or screens shall be attached to or hung in, or
used in connection with any window or door of the Demised Premises without the
prior consent of Landlord, including approval by Landlord of the quality, type,
design, color and manner of attachment.
2. Tenant agrees that its use of electrical current shall never exceed the
capacity of existing feeders, risers or wiring installation.
3. The Demised Premises shall not be used for storage of merchandise held
for sale to the general public. Tenant shall not do or permit to be done in or
about the Demised Premises or Building anything which shall increase the rate of
insurance on said Building or obstruct or interfere with the rights of other
lessees of Landlord or annoy them in any way, including, but not limited to,
using any musical instrument, making loud or unseemly noises, or singing, etc.
The Demised Premises shall not be used for sleeping or lodging. No cooking or
related activities shall be done or permitted by Tenant in the Demised Premises
except with permission of Landlord. Tenant will be permitted to use for its own
employees within the Demised Premises a small microwave oven and Underwriters'
Laboratory approved equipment for brewing coffee, tea, hot chocolate and similar
beverages, provided that such use is in accordance with all applicable federal,
state, county and city laws, codes, ordinances, rules and regulations. No
vending machines of any kind will be installed, permitted or used on any part of
the Demised Premises without the prior consent of Landlord. No part of said
Building or Demised Premises shall be used for gambling, immoral or other
unlawful purposes. No intoxicating beverage shall be sold in said Building or
Demised Premises without the prior written consent of Landlord. No area outside
of the Demised Premises shall be used for storage purposes at any time.
4. No birds or animals of any kind shall be brought into the Building
(other than trained seeing-eye dogs required to be used by the visually
impaired). No bicycles, motorcycles or other motorized vehicles shall be brought
into the Building.
5. The sidewalks, entrances, passages, corridors, halls, elevators and
stairways in the Building shall not be obstructed by Tenant or used for any
purposes other than those for which same were intended as ingress and egress. No
windows, floors or skylights that reflect or admit light into the Building shall
be covered or obstructed by Tenant. Toilets, wash basins and sinks shall not be
used for any purpose other than those for which they were constructed, and no
sweeping, rubbish or other obstructing or improper substances shall be thrown
therein. Any damage resulting to them, or to heating apparatus, from misuse by
Tenant or its employees, shall be borne by Tenant.
6. Only one (I) key for the Demised Premises will be furnished to Tenant
without charge. Landlord may make a reasonable charge for any additional keys.
Only one (I) access card for the Building will be furnished to Tenant without
charge. Landlord may make a reasonable charge for any additional access cards.
No additional lock, latch or bolt of any kind shall be placed upon any door nor
shall any changes be made in existing locks without written consent of Landlord
and Tenant shall in each such case furnish Landlord with a key for any such
lock. At the termination of the Lease, Tenant shall return to Landlord all keys
and access cards furnished to Tenant by Landlord, or other vise procured by
Tenant, and in the event of loss of any keys or access cards so furnished,
Tenant shall pay to Landlord the cost thereof.
7. Landlord shall have the right to prescribe the weight, position and
manner of installation of heavy articles such as safes, machines and other
equipment brought into the Building. No safes, furniture, boxes, large parcels
or other kind of freight shall be taken to or from the Demised Premises or
allowed in any elevator, hall or corridor except at times allowed by Landlord.
No deliveries shall be made in passenger elevators. Tenant shall make prior
arrangements with Landlord for use of freight elevator for the purpose of
transporting such articles and such articles may be taken in or out of said
Building only between or during such hours as may be arranged with and
designated by Landlord. The persons employed to move the same must be approved
by Landlord. No hand trucks, except those equipped with rubber tires and side
guards, shall be permitted in the Building. No hand trucks shall be permitted in
any passenger elevator. In no event shall any weight be placed upon any floor by
Tenant so as to exceed the design conditions of the floors at the applicable
locations.
8. Tenant shall not cause or permit any gases, liquids or odors to be
produced upon or permeate from the Demised Premises, and no flammable,
combustible or explosive fluid, chemical, substance or item (including, without
limitation, natural Christmas trees) shall be brought into the Building.
<PAGE>
9. Every person, including Tenant, its employees and visitors, entering
and leaving the Building may be questioned by a watchman as to that person's
business therein and may be required to sign such person's name on a form
provided by Landlord for registering such person; provided that, except for
emergencies or other extraordinary circumstances, such procedures shall not be
required between the hours of 7:00 a.m. and 6:00 p.m., on all days except
Saturdays, Sundays and Holidays. Landlord may also implement a card access
security system to control access during such other times. Landlord shall not be
liable for excluding any person from the Building during such other times, or
for admission of any person to the Building at any time, or for damages or loss
for theft resulting therefrom to any person, including Tenant.
10. Unless agreed to in writing by Landlord, Tenant shall not employ any
person other than Landlord's contractors for the purpose of cleaning and taking
care of the Demised Premises. Cleaning service will not be furnished on nights
when rooms are occupied after 6:30 p.m., unless, by agreement in writing,
service is extended to a later hour for specifically designated rooms. Landlord
shall not be responsible for any loss, theft.
11. No connection shall be made to the electric wires or gas 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 Demised Premises
shall be kept whole and in good repair. Tenant shall not injure, overload or
deface the Building, the woodwork or the walls of the Demised Premises, nor
permit any noisome, noxious, noisy or offensive business.
12. If Tenant requires wiring for a bell or buzzer system, such wiring
shall be done by the electrician of Landlord only, and no outside wiring persons
shall be allowed to do work of this kind unless by the written permission of
Landlord or its representatives. If telegraph or telephonic service is desired,
the wiring for same shall be approved by Landlord, and no boring or cutting for
wiring shall be done unless approved by Landlord or its representatives, as
stated. The electric current shall not be used for power or heating unless
written permission to do so shall first have been obtained from Landlord or its
representatives in writing, and at an agreed cost to Tenant.
13. Tenant and its employees and invitees shall observe and obey all
parking and traffic regulations imposed by Landlord. All vehicles shall be
parked only in areas designated therefor by Landlord.
14. Canvassing, peddling, soliciting and distribution of handbills or any
other written materials in the Building are prohibited, and Tenant shall
cooperate to prevent the same.
15. Landlord shall have the right to change the name of the Building and
to change the street address of the Building, provided that in the case of a
change in the street address, Landlord shall give Tenant not less than 180 days'
prior notice of the change, unless the change is required by governmental
authority.
16. The directory of the Building will be provided for the display of the
name and location of the tenants. Any additional name which Tenant shall desire
to place upon said directory must first be approved by landlord, and if so
approved, a reasonable charge will be made therefor.
17. Tenant, in order to obtain minimum effectiveness of the cooling
system, shall lower and close the blinds (at not less than a 450 angle) or
drapes when the sun's rays are directly in windows of the Demised Premises.
Tenant shall not remove the standard blinds installed in the Demised Premises.
Tenant shall not place items on window sills in the Demised Premises.
18. Smoking is prohibited in the main building lobby, public corridors,
elevator lobbies, service elevator vestibules, stairwells, restrooms and other
common areas within the Building.
<PAGE>
19. Landlord may waive any one or more of these Rules and Regulations for
the benefit of any particular Lessee, but no such waiver by Landlord shall be
construed as a waiver of such Rules and Regulations in favor of any other
Lessee, nor prevent Landlord from thereafter enforcing any such Rules and
Regulations against any or all of the other lessees of the Building.
20. These Rules and Regulations are supplemental to, and shall not be
construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of any premise in the
Building.
21. Landlord reserves the right to make such other and reasonable Rules
and Regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Building and the Land, and for the
preservation of good order therein.
<PAGE>
Exhibit "A"
Page 1 of 1
EXHIBIT "A"
LEGAL DESCRIPTION CROSS PARK I
-----------------------------
The property subject to the attached Leasehold Agreement is described as
follows:
SITUATED in District 6 of Knox County, Tennessee, without the corporate
limits of the City of Knoxville, and being more particularly bounded and
described as follows:
Beginning on an iron pin in the north line of Cross Park drive located
493.80 feet in the westerly direction from the western line of Park Village
Road; thence with said northern line of Cross Park Drive, South 67 deg. 10 min.
West, 220.23 feet to an iron pin; thence leaving Cross Park Drive and with the
severance line, North 23 deg. 08 min. West, 571.82 feet to a pipe in the Rankin
line; thence with Rankin, North 65 deg. 46 min. East, 82.28 feet to an iron pin;
thence North 23 deg. 09 min. West, 22.03 feet to an iron pin corner to Rankin
and Gray; thence with Gray, North 77 deg. 46 min. East, 302.24 feet to an iron
pin; thence South 12 deg. 14 min. East, 18.40 feet to an iron pin; thence South
47 deg. 00 min. East, 53.18 feet to an iron pin; thence South 34 deg. 25 min.
West, 216.23 feet to an iron pin; thence South 57 deg. 25 min. East, 160.29 feet
to an iron pin; thence South 15 deg. 43 min. East, 162.37 feet to an iron pin;
thence South 65 deg. 42 min. West, 69.39 feet to an iron pin; thence South 28
deg. 38 min. East, 61.92 feet to the point of BEGINNING, containing 3.85 acres
LEGAL DESCRIPTON CROSS PARK II
TRACT NO. 1
The property subject to the attached Leasehold Agreement is described as
follows:
SITUATED in the Sixth (6th) Civil District of Knox county, Tennessee, and
lying on the western side of Park Village Road and the northern line of Cross
Park Drive and being more fully described as follows:
BEGINNING AT AN IRON PIN, said pin standing at the point of intersection of
the western line of Park Village Road with the northern line of Cross Park
Drive; thence with a curve to the right, the radius of which is 948.87 feet,
through a central angle of 18 deg. 26 min., the chord bearing being South 79
deg. 23 min. West, for a distance of 173.87 feet to an iron pin, a point of
reverse curve; thence with a curve to the left, the radius of which is 998.87
feet, through a central angle of 18 deg. 26 min., the chord bearing being south
76 deg. 43 min. West for a distance of 319.97 feet to an iron pin; thence
leaving Cross Park Drive and running North 28 deg. 38 min. West, 61.92 feet to
an iron pin; thence North 65 deg. 42 min. East, 69.39 feet to an iron pin;
thence North 15 deg. 43 min. West, 162.37 feet to an iron pin; thence North 57
deg. 25 min. West, 160.25 feet to an iron pin; thence North 34 deg. 25 min.
East, 216.23 feet to an iron pin; thence North 47 deg. 00 min. West, 53.18 feet
to an iron pin; thence North 12 deg. 14 min. West, 18.40 feet to an iron pin;
thence North 77 deg. 46 min. East, 326.74 feet to an iron pin in the western
line of Park Village Road; thence with the western line of said road to the
following courses and distances; South 19 deg. 30 min. East, 112.78 feet to an
iron pin; thence South 24 deg. 52 min. East, 456.99 feet to the point of
beginning. Containing 5.29 acres as shown on survey of T.J. Hatmaker, bearing
date of November 22, 1978.
TRACT NO. 2
SITUATED in the Sixth (6th) Civil District of Knox county, Tennessee, and
lying on the western side of Park Village Road and the northern line of Cross
Park Drive and being more fully described as follows:
BEGINNING AT AN IRON PIN, said pin standing at the extreme northeastern
corner of the above described tract and also standing in a northwesterly
direction 569.77 feet from the point of intersection of the northern line of
Cross Park Drive with the western line of Park Village Road; thence with the
northern line of the above described tract, South 77 deg. 46 min. West, 628.98
feet to an iron pin; thence with a fence line, North 33 deg. 03 min. East,
355.40 feet to an iron pin; thence South 12 deg. 14 min. East, 223.72 feet to an
iron pin; thence North 77 deg. 46 min. East, 370.00 feet to an iron pin in the
western line of Park Village Road; thence with the western line of same, South
19 deg. 30 min. East, 25.75 feet to the point of beginning. As shown on survey
of T.J. Hatmaker bearing date of November 22, 1978.
<PAGE>
Exhibit "B"
Page 1 of 1
EXHIBIT "B"
FLOOR PLAN
<PAGE>
Exhibit "C"
Page 1 of 1
EXHIBIT "C"
SUPPLEMENTAL NOTICE
__________________________RE: Lease dated as of ____________________,
2000 by and between
_____________________________ The Equitable Life Assurance Society
of the United States, as Landlord, and
_____________________________ Tenera, Inc., as Tenant.
Dear Sir:
Pursuant to Article 3 of the captioned Lease, please be advised as follows:
1.The Rental Commencement Date is the ______ day of _______________, 2000,
and the expiration date of the Lease Term is the _____ day of _______________,
_____, subject however to the terms and provisions of the Lease.
2.The Rentable Floor Area of the Demised Premises is _______ square feet.
3.Terms denoted herein by initial capitalization shall have the meanings
ascribed thereto in the Lease.
_____________________________
"LANDLORD"
_____________________________ The Equitable Life Assurance
Society of the United States
-----------------------------
_____________________________ By: CB Richard Ellis
_____________________________ By:________________________________________
Date
_____________________ Title:_________________________
<PAGE>
Exhibit "D"
Page 1 of 1
LANDLORD'S CONSTRUCTION
----------------------------- .
1. Subject to the terms of the above provisions concerning Tenant
Improvement Allowance, Landlord shall provide the Demised Premises to Tenant
consistent with the floor plans and specifications shown on the approved
construction documents, dated
EXHIBIT "D"
2000, (hereinafter shall be referred as "Construction Documents") subject
to the terms of Tenant Improvement Allowance below.
A.The Demised Premises shall be
deemed "ready for occupancy" [as that term is used in Article 1 paragraph (k) in
the Lease] when Landlord's
construction, as provided above, is substantially completed. In the event of any
dispute as to when Landlord's construction has been substantially completed as
aforesaid, the determination by Landlord's architect and/or designer shall be
final and binding upon the parties.
B.Any work or improvements which
exceed the amount of the Tenant Improvement Allowance or any Tenant requests
which deviates from the improvements
provided in the Construction Documents shall be at Tenant's sole cost, and
Landlord shall not be liable for any delays caused by Tenant's deviations.
C.Tenant acknowledges and agrees
that the Demised Premises consist of second generation space, and that, except
for the modifications to the
Demised Premises made pursuant to the Construction Documents Tenant accept the
Demised Premises in its "as is, where is" condition as of the date of the Lease.
2. Landlord shall provide Tenant a Tenant Improvement Allowance for
expenses incurred in the construction of the tenant improvements below a
finished ceiling in the Demised Premises and all Construction Documents in an
amount not to exceed$2.50 per rentable square foot or $31,965.00. If the final
pricing of the final Construction Documents exceeds the Tenant Improvement
Allowance, then before a construction contract is awarded and work begins, for
work to be paid for from the Tenant Improvement Allowance, Tenant shall have the
right to approve all pricing of the Tenant Improvement items for which the
Tenant Improvement Allowance shall be the source of payment. Tenant shall not
unreasonably withhold its approval.
-----------------------------
<PAGE>
Exhibit "E"
Page 1 of 1
EXHIBIT "E"
BUILDING STANDARD SERVICES
Landlord shall furnish the following services to Tenant during the Lease
Term (the "Building Standard Services"):
(a)Hot and cold domestic water and common-use restrooms and toilets at
locations provided for general use and as reasonably deemed by Landlord to be in
keeping with the first-class standards of the Building.
(b)Subject to curtailment as required by governmental laws, rules or
mandatory regulations and subject to the design conditions set forth in
Paragraph 3(a) of Exhibit "D" attached hereto, central heat and air conditioning
in season, as such temperatures and in such amounts as are reasonably deemed by
Landlord to be in keeping with the first-class standards of the Building. Such
heating and air conditioning shall be furnished between 8:00 a.m. and 6:00 p.m.
on weekdays (from Monday through Friday, inclusive) and between 9:00 a.m. and
12:00 p.m. on Saturdays, all exclusive of Holidays, as defined below (the
'Building Operating Hours').
(c)Electric lighting service for all public areas and special service areas
of the Building in the manner and to the extent reasonably deemed by Landlord to
be in keeping with the first-class standards of the Building.
(d)Janitor service shall be provided five (5) days per week, exclusive of
Holidays (as herein below defined), in a manner that Landlord reasonably deems
to be consistent with the first-class standards of the Building.
(e)Security services for the Building comparable as to coverage, control
and responsiveness (but not necessarily as to means for accomplishing same) to
other similarly situated first-class, multi-tenant office buildings in
Knoxville, Tennessee; provided, however, Landlord shall have no responsibility
to prevent, and shall not be liable to Tenant for, any liability or loss to
Tenant, its agents, employees and visitors arising out of losses due to theft,
burglary, or damage or injury to persons or property caused by persons gaining
access to the Demised Premises, and Tenant hereby releases Landlord from all
liability for such losses, damages or injury.
(f)Sufficient electrical capacity to operate (i) incandescent lights,
typewriters, calculating machines, photocopying machines and other machines of
the same low voltage electrical consumption (120/208 volts), provided that the
total rated electrical design load for said lighting and machines of low
electrical voltage shall not exceed 4.0 watts per square foot of rentable area;
and (ii) lighting (277/480 volts), provided that the total electrical design
load for said lighting shall not exceed 1.5 watts per square foot of rentable
area (each such rated electrical design loan to be hereinafter referred to as
the "Building Standard Rated Electrical Design Load").
Should Tenant's total rated electrical design load for the entire Premises
or any portion thereof (including, but not limited to, computer or telephone
rooms) exceed the Building Standard Rated Electrical Design Load for either low
or high voltage electrical consumption, or if Tenant's electrical design
requires low voltage or high voltage circuits in excess of Tenant's share of the
building standard circuits, Landlord will (at Tenant's expense) install such
additional circuits and associated high voltage panels and/or additional low
voltage panels with associated transformers (which additional circuits, panels
and transformers shall be hereinafter referred to as the "Additional Electrical
Equipment"). If the Additional Electrical Equipment is installed because
Tenant's low voltage or high voltage rated electrical design load exceeds the
applicable Building Standard Rated Electrical Design Load, then a meter shall
also be added (at Tenant's expense) to measure the electricity used through the
Additional Electrical Equipment.
<PAGE>
The design and installation of any Additional Electrical Equipment (or any
related meter) required by Tenant shall be subject to the prior approval of
Landlord (which approval shall not be unreasonably withheld). All expenses
incurred by Landlord in connection with the review and approval of any
Additional Electrical Equipment shall also be reimbursed to Landlord by Tenant.
Tenant shall also pay on demand the actual metered cost of electricity consumed
through the Additional Electrical Equipment (if applicable), plus any actual
accounting expenses incurred by Landlord in connection with the metering
thereof.
If any of Tenant's electrical equipment requires conditioned air in excess
of building standard air conditioning, the same shall be installed by Landlord
(on Tenant's behalf), and Tenant shall pay all design, installation, metering,
operating and maintenance costs relating thereto.
If Tenant requires that certain areas within Tenant's Demised Premises must
operate in excess of the normal Building Operating Hours (as hereinabove
defined), the electrical service to such areas shall be separately circuited and
metered (at Tenant's expense) such that Tenant shall be billed the costs
associated with electricity consumed during hours other than Building Operating
Hours.
(g)All building standard fluorescent bulb replacement in all areas and all
incandescent bulb replacement in public areas, toilet and restroom areas, and
stairwells.
(h)Non-exclusive multiple cab passenger service to the Demised Premises
during Building Operating Hours (as hereinabove defined) and at least one (1)
cab passenger service to the floor(s) on which the Demised Premises are located
twenty-four (24) hours per day and non-exclusive freight elevator service during
Building Operating Hours (all subject to temporary cessation for ordinary repair
and maintenance and during times when life safety systems override normal
Building operating systems) with such freight elevator service available at
other times upon reasonable prior notice and the payment by Tenant to Landlord
of any additional expense actually incurred by Landlord in connection therewith.
To the extent the services described above require electricity and water
supplied by public utilities, Landlord's covenants thereunder shall only impose
on Landlord the obligation to use its reasonable efforts to cause the applicable
public utilities to furnish same. Except for deliberate and willful acts of
Landlord, failure by Landlord to furnish the services described herein, or any
cessation thereof, shall not render Landlord liable for damages to either person
or property, nor be construed as an eviction of Tenant, nor work an abatement of
rent, nor relieve Tenant from fulfillment of any covenant or agreement hereof.
In addition to the foregoing, should any of the equipment or machinery, for any
cause, fail to operate or function properly, Tenant shall have no claim for
rebate of rent or damages on account of an interruption in service occasioned
thereby or resulting therefrom; provided, however, Landlord agrees to use
reasonable efforts to promptly repair said equipment or machinery and to restore
said services during normal business hours.
The following dates shall constitute "Holidays", as that term is used in
this Lease: New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Friday following Thanksgiving Day, Christmas, and any other
holiday generally recognized as such by landlords of office space in the
metropolitan Nashville office market, as determined by Landlord in good faith.
If, in the case of any specific holiday mentioned in the preceding sentence, a
different day shall be observed than the respective day mentioned, then that day
which constitutes the day observed by national banks in Knoxville, Tennessee on
account of said holiday shall constitute the Holiday under this Lease.
<PAGE>
Exhibit "F"
Page 3 of 3
EXHIBIT "F"
GUARANTY
(Intentionally left blank)
-----------------------------
-----------------------------
<PAGE>
Exhibit "G"
Page 1 of 1
EXHIBIT "G"
SPECIAL STIPULATIONS
(Intentionally left blank.)
