XXXXX LEASE
===== -----
THIS LEASE AGREEMENT, dated 31 July 96 by and between Centoff Realty Company,
Inc., a Delaware Corporation ("Landlord") with its principal office at 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and PMT Services, Inc., a Corporation
organized and existing under the laws of the State of Tennessee. ("Tenant")
with its principal office at Xxx Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx
00000.
1. BASIC LEASE PROVISIONS
A. DESCRIPTION OF PREMISES E. ADDRESS FOR PAYMENT OF RENT AND
SECURITY DEPOSITS:
Suite Number: 300 Payee: Centoff Realty Co., Inc.
Building Name: Kingsport Building Address: Xxx X000000
Address: 000 Xxxxxxxxxx Xxxxx Xxxx/Xxxxx/Xxx: Xxxxxxx, XX 00000-0000
County: Xxxxxxxxxx Tenant Account #: 3015030504 (note on remittance)
City: Brentwood
Xxxxx/Xxx: Xxxxxxxxx 00000 F. ADDRESSES FOR NOTICES
Center: Nashville Tenant: PMT Services, Inc.
Two Maryland Farms
B. PRINCIPAL LEASE TERMS: Suite 200
Lease Terms (Months) 51 Xxxxxxxxx, XX 00000
Commencement Date: 01 October 96 Tenant Fed I.D./SSN: 62-1215125
Expiration Date: 31 December 00
Landlord: Centoff Realty Co., Inc.
Monthly Base Rent: $24056.00 000 Xxxxx Xxxxxx
Sales or Use Taxes: $ 0.00 Xxx Xxxx, Xxx Xxxx 00000
Total: $24056.00
Security Deposit: $ 0.00 Landlord Fed I.D.: 00-0000000
C. LEASED AREA With a copy to: Xxxxx Equity, Inc.
Approximately 19908 rentable square feet. Attn: President
(Including Tenant's share of common area.) 0000 Xxxx. Xxxxxx Xxxxx
Xxxxxxxxxxxx, XX 00000
D. MANAGER: Xxxxx Equity, Inc. is
the designated agent of Landlord as to all G. GUARANTOR(s): n/a
matters pertaining to this Lease, including its
execution and amendment and granting or
withholding of consents, excluding any
activities prohibited by law.
The provisions contained in Sections 2 through 36, inclusive, which appear
after the signature lines below, are a part of this Lease and are incorporated
in this Lease by reference. The Tenant and the Landlord have executed or caused
to be executed this Lease on the dates shown below their signatures, to be
effective as of the date set forth above.
Tenant: PMT Services Landlord: Centoff Realty Company, Inc.
By: Xxxxx Equity, Inc., as Agent
By: /s/ Xxxx Xxx (SEAL) By: /s/ Xxxxxxxx X. Xxxxxxx (SEAL)
--------------------------------------- ------------------------------------------
Print Name: Xxxx Xxx Print Name: Xxxxxxxx X. Xxxxxxx
-------------------------------
Title: Vice President Operations Title: Vice President
------------------------------------
Attest: Attest: /s/Xxxxxx X. Xxxxxxx
----------------------------------- --------------------------------------
Print Name: Print Name: Xxxxxx X. Xxxxxxx
------------------------------- ----------------------------------
Title: Title:
------------------------------------ ---------------------------------------
(Corporate Seal) (Corporate Seal)
Date: Date: August 27, 1996
------------------------------------- ----------------------------------------
Signed and sealed in the presence of: Signed and sealed in the presence of:
(1) /s/Xxxxxxxxxx X. Xxxxxxx (1)
----------------------------------- ------------------------------------------
Print Name: Xxxxxxxxxx X. Xxxxxxx Print Name:
------------------------------ ----------------------------------
(2) /s/Xxxx Xxxxx (2)
-------------------------------------- ------------------------------------------
Print Name: Xxxx Xxxxx Print Name:
------------------------------ ----------------------------------
As to Tenant As to Landlord
1 of 9
LEASE PROVISIONS INCORPORATED BY REFERENCE
2. LEASE OF PREMISES; The Landlord hereby leases to the Tenant and the Tenant
hereby takes from the Landlord the premises (the "Premises") which include the
Suite(s) shown and described on exhibit "A", together with any other parts of
the Building used exclusively by Tenant, which Premises are or will be contained
in the office building (the "Building") located at the address stated in Section
1A, upon the terms and conditions contained in this Lease. For the purposes of
this lease, "Property" shall mean the property referred to at the street address
in Section 1A which is more specifically described in the legal description
maintained in the Landlord's records. For the purposes of this lease, "Center"
shall mean The Xxxxx Center referred to in Section 1A.
3. TERM: The term of this Lease (the "Term") shall commence on the date (the
"Commencement Date") which is the earlier to occur of: the date stated in
Section 1B, or the date the Tenant first occupies all or part of the Premises.
The Term shall expire on the date (the "Expiration Date") stated in Section 1B
unless sooner terminated as otherwise provided in this Lease or unless extended
pursuant to Section 27 or other extension provisions contained herein.
4. USE AND POSSESSION: The Tenant covenants and agrees that the Premises are to
be used by the Tenant for general office purposes and for no other purposes
without the prior written consent of the Landlord, which shall not be
unreasonably withheld. The Tenant shall not occupy or use the Premises or permit
the use or occupancy of the Premises for any purpose or in any manner which:
(a) is unlawful or is in violation of any applicable legal, governmental or
quasi-governmental requirement, ordinance, rule or code; (b) may be dangerous to
persons or property; (c) may invalidate any insurance policy held by the
Landlord or increase the amount of premiums for any insurance policy affecting
the Building or the Property (if any additional amounts of insurance premiums
are so incurred, the Tenant shall pay the Landlord the additional amounts on
demand as Additional Rent, provided that such payment shall not authorize such
use); (d) may create a nuisance or disturb any other tenant of the Building or
the occupants of neighboring Property or injure the reputation of the Building
or the Center; and (e) violates the "Rules and Regulations" of the Building as
may from time to time be adopted by Landlord, or any restriction of record. The
Tenant agrees that Tenant shall be responsible for any costs incurred by
Landlord by reason of Tenant's misuse of the Premises or the Building and common
areas, including without limitation any damages incurred by Tenant in moving
into or out of the Premises. If any costs are so incurred by Landlord, the
Tenant shall pay the Landlord such costs within 30 days of Landlord's demand as
Additional Rent.
The Landlord agrees to have the Premises substantially completed and ready
for possession on or before the Commencement Date, subject to delays caused or
occasioned by strikes, insurrections, Acts of God, general labor unrest,
shortage of materials, civil disturbances and other casualties or unforeseen
causes or events beyond the control of the Landlord ("Unforeseen Causes").
Notwithstanding the foregoing, however, if Landlord does not have the Premises
substantially complete and ready for possession on or before the Commencement
Date, this Lease shall not terminate, but Tenant's obligation to pay Monthly
Rent and Additional Rent shall not begin to accrue with respect to the Premises
until the date that the Premises are substantially complete and ready for
Tenant's occupancy. The Tenant agrees to accept possession of the Premises
within ten (10) days after the receipt of notice by the Landlord of substantial
completion (if after the date specified in Section 1B).
5. RENT: Tenant agrees to pay to Landlord at the address specified in Section
1D, or at such other place designated in writing by Landlord, the Monthly Rent,
and any Additional Rent, plus any sales or use taxes (collectively called
"Rent"). "Monthly Rent" shall mean the initial monthly base rent stated in
Section 1B for the first twelve months following the Commencement Date of the
Term of this Lease ("First Lease Year"), and the Adjusted Monthly Rent, as
adjusted under Section 7. Rent shall be paid without any prior notice or demand
and without any deduction whatsoever. Monthly Rent shall be due in advance of
the first day of each month of the Term. The first installment of Monthly Rent
shall be paid by Tenant to Landlord upon execution of this Lease. Rent for any
partial lease month shall be prorated. Monthly Rent will be adjusted in the
manner set forth in Section 7. Tenant's obligation to pay Rent to Landlord
shall be independent of every other covenant or obligation of Landlord under
this Lease. All delinquent Rent shall bear interest at the rate of 10% per
annum from the date due until paid. Rent shall be considered delinquent after
the 10th day following the date it is due. If Tenant fails to pay Rent or any
other charge when due under this Lease, then Tenant shall pay and Landlord shall
be entitled to receive a late
2 of 9
payment service charge, in addition to any interest charge due hereunder,
covering administrative and overhead expenses incurred by Landlord caused by
such late payment, which the parties stipulate and agree are hereby liquidated
and shall be equal to five percent of the overdue amount. Tenant shall pay a
charge for any checks written to Landlord which are returned for insufficient
funds equal to $25.00 per returned check or the amount to which Landlord is
entitled under State law, whichever is greater.
6. SALES AND USE TAX: In addition to the Rent and other amounts due to the
Landlord under this Lease, the Tenant shall pay to the Landlord and the Landlord
shall remit to the appropriate governmental authorities any sales, use, or other
tax, excluding Federal or State income taxes, now or hereafter imposed upon
rents and other amounts due to the Landlord under this Lease, notwithstanding
the fact that any statute, ordinance, enactment, or regulation may impose any of
those types of taxes on the Landlord.
7. NOTICES: For the purpose of any notice or demand under this Lease, the
respective parties shall be served by overnight delivery, personal delivery or
certified or registered mail, return receipt requested, addressed to the Tenant
at the address as set forth in Section 1E and to the Landlord at the addresses
set forth in Section 1E or other such addresses designated in writing by
Landlord. Any notice shall be effective when delivered.
8. ORDINANCES AND REGULATIONS: The Tenant shall comply promptly, at the
Tenant's sole cost and expense, with all present and future laws, codes,
ordinances, rules and regulations of any municipal, county, state, federal, or
other governmental authority, including environmental laws, and any bureau or
department thereof, and of the Board of Fire Underwriters or any other body
exercising similar functions which may be applicable to the Premises and
Tenant's use or occupancy of the Premises, and shall comply with the
requirements of all of Landlord's policies of insurance at any time in force
with respect to the Building in which the Premises are located. The Tenant
agrees for itself and for its subtenants, employees, agents, and invitees to
comply with the Rules and Regulations, promulgated from time to time with
respect to the Premises, Building, Property and Center, a copy of which is
available in the management office in the Center.
Notwithstanding any other provision of this Lease to the contrary, Landlord
hereby represents and warrants to Tenant that the Premises, the Building and the
Common Areas comply with the Americans with Disabilities Act ("ADA") as such are
currently used. During the term of this Lease, Tenant shall comply with the ADA
in its use and occupancy of the Premises and shall make any modifications to the
Premises necessary to so comply during the Term. However, Landlord shall be
responsible for any modifications to the Common Areas and the Building (except
the Premises) necessary to comply with ADA and Tenant shall have no
responsibility or liability therefor. Tenant agrees that any and all steps
taken or to be taken by Landlord, in Landlord's judgment, now or hereafter to
comply with the ADA with respect to the Building and its Common Areas are
authorized and permitted under the Lease and shall not constitute an
interruption, disturbance or other breach of Tenant's rights under the Lease
provided, however, that Landlord shall use reasonable efforts to avoid
unreasonably disrupting Tenant's use of the Premises.
Tenant covenants and agrees that Tenant shall not at any time maintain on, or
dispose or discharge from the Property or the Premises any "Hazardous
Materials", as defined below, except Tenant may use and store minor quantities
of Hazardous Materials for cleaning purposes only or in connection with the use
of office equipment so long as the quantities and use are exempt from applicable
governmental regulation and such Hazardous Materials are disposed of in
accordance with all applicable laws. The failure to comply with all applicable
laws regarding Hazardous Materials and this covenant shall constitute an Event
of Default by the Tenant under this Lease and shall entitle the Landlord to all
rights and remedies provided in this Lease, at law or in equity. The term
"Hazardous Materials" as used herein shall mean collectively, any hazardous
waste, any hazardous substances, any pollutant or contaminant, all as defined by
42 USC (S)9601, and any toxic substances, petroleum products, other hazardous
materials, or other chemicals or substances regulated by any environmental laws
of any county, state or federal government or any other governmental entity.
Tenant's obligations as set forth in this paragraph shall survive termination of
this Lease.
9. SIGNS: The Tenant shall not place any signs or other advertising matter or
materials on the exterior or on the interior of the Building or at any other
location on the Property or Center, without the prior written consent from the
Landlord. Any lettering or signs placed on the interior of the Building shall
be for directional purposes only, and such signs and lettering shall be of a
type, kind, character, location and description which have been approved by the
3 of 9
Landlord in writing. Directional and identification signage provided by the
Landlord shall be limited to the tenant directory of the Building.
10. SERVICES: The Landlord shall provide the following: heat and air
conditioning in the Premises, during normal business hours (Monday through
Friday, 8:00 a.m. to 5:00 p.m., excluding national holidays), to the extent
necessary for the comfortable occupancy of the Premises, according to Landlord's
standard, under normal business operations and in the absence of the use of
machines, equipment, or devices which affect the temperature otherwise
maintained in the Premises: automatic elevator service, water from the regular
Building fixtures for drinking, lavatory, and toilet purposes: customary
cleaning and janitorial services in the Premises Monday through Friday,
excluding national holidays: customary cleaning, mowing, grounds keeping, and
trash removal in the Common Areas: Landlord's customary security services for
the Property; and electricity for normal business usage according to Landlord's
standard. Additional capacity or usage shall be provided at the option of the
Landlord (reasonably exercised) and at the sole cost and expense of the Tenant
as Additional Rent. The Landlord shall provide Landlord's standard amount of
free non-exclusive parking for the employees and visitors of the Tenant on the
parking areas adjacent to the Building and appurtenant to the property.
The services to be provided by Landlord at its cost under the terms of this
Lease shall not include any maintenance or replacement of non-standard building
items such as kitchen or break room fixtures and appliances including, but not
limited to sinks, disposals, dishwashers, water heaters, refrigerators, ice
makers, special air conditioning or heating units, and card access systems or
special facilities such as showers. All cost for the maintenance or replacement
of such items shall be the obligation of the Tenant.
The Tenant agrees that the Landlord shall not be liable for damages for
failure to furnish or delay in furnishing any service if attributable to any of
the causes described in Sections 16 and 17 or as a result of unforeseen causes.
No failure or delay resulting from the foregoing reasons shall be considered to
be an eviction or disturbance of the Tenant's quiet enjoyment, use, or
possession of the Premises. If the Tenant shall require electrical current to
operate equipment or machines, including heating, refrigeration, computer(s),
data processing, or other machines or equipment using electrical current or
maintain office hours that will increase the amount of the electricity usually
furnished by the Landlord for use in general office space, the Tenant will
obtain the prior written approval of the Landlord and pay to the Landlord the
additional direct expense incurred, including any installation or maintenance
cost, as Additional Rent. Landlord reserves the right to install a submeter for
such service.
11. ALTERATIONS: The Tenant, by occupancy hereunder, accepts the Premises as
being in good repair and condition and suitable for Tenant's intended use of the
Premises. The Tenant shall maintain the Premises and every part thereof in good
repair and condition, reasonable use, wear and tear and damage from fire or
other casualty excepted. Landlord shall maintain or cause to be maintained in
good repair and condition all of the Building (except the interior of the
premises) and the Common Areas. The Tenant shall not permit any lien or claim
for lien of a mechanic, laborer, or supplier or any other lien to be filed
against the Center, the Property containing the Building, the Premises, or any
part of such property, arising out of work performed, or alleged to have been
performed by, or at the direction of, or on behalf of the Tenant.
The interest of Landlord in the Property or any part thereof shall not be
subject to liens for improvements made by Tenant or by persons claiming by,
through or under Tenant, and Tenant agrees that Tenant shall notify any person
making any improvements on behalf of Tenant of this provision. Upon request of
Landlord, Tenant will execute a short form of this Lease which states that the
terms of this Lease expressly prohibits any liability to Landlord or the
Landlord's property for any improvements made by, through or under Tenant which
may be recorded by Landlord.
12. QUIET ENJOYMENT: Subject to the provisions of this Lease, the Tenant shall
be entitled to peaceful and quiet enjoyment of the Premises, so long as the
Tenant is not in default under this Lease.
13. LANDLORD'S RIGHTS: The Landlord and its agents shall have the right, at
all reasonable times during the Term of this Lease, to enter the Premises for
the purpose of inspecting the Premises and of making any repairs and alterations
as the Landlord shall deem necessary. The Landlord and its agents shall also
have the right to enter the Premises at all reasonable hours for the purpose of
displaying the Premises to prospective tenants during the ninety (90) day period
prior to the Expiration Date of this Lease. Landlord and its agents shall have
the right at all times to
4 of 9
alter, renovate, and repair portions of the Building which do not include the
Premises, notwithstanding any temporary inconvenience or disturbance to Tenant
caused by such repairs, renovations, or alterations.
14. DESTRUCTION OF PREMISES; If the Premises, the Building, or the Property is
rendered substantially untenantable by fire or other casualty, the Landlord may
elect, by giving the Tenant written notice within ninety (90) days after the
date of the fire or casualty, either to: (a) terminate this Lease as of the
date of the fire or other casualty; or (b) proceed to repair or restore the
Premises, the Building, or the Property (other than the leasehold improvements
and personal property installed by the Tenant), to substantially the same
condition as existed immediately prior to fire or other casualty.
If the Landlord elects to proceed pursuant to 16(b) above, the Landlord's
notice shall contain the Landlord's reasonable estimate of the time required to
substantially complete the repair or restoration. If the estimate indicates
that the time so required will exceed ninety (90) days from the date of the
casualty, if any, pursuant to Section 23, then the Tenant shall have the right
to terminate this Lease as of the date of such casualty by giving written notice
to the Landlord not later than twenty (20) days after the date of the Landlord's
notice. If the Landlord's estimate indicates that the repair or restoration can
be substantially completed within one hundred eighty (180) days, or if the
Tenant fails to exercise its right to terminate this Lease, this Lease shall
remain in force and effect.
If the Premises are damaged by fire or other casualty but the Premises are
not rendered substantially untenantable, then the Landlord shall diligently
proceed to repair and restore the damaged portions thereof (other than the
leasehold improvements and personal property installed by the Tenant), to
substantially the same condition as existed immediately prior to such fire or
other casualty, unless such damage occurs during the last twelve (12) months of
the Term, in which event the Landlord shall have the right to terminate this
Lease as of the date of such fire or other casualty by giving written notice to
the Tenant within thirty (30) days after the date of such fire or other
casualty.
If all or any part of the Premises are damaged by fire or other casualty and
this Lease is not terminated, the Rent shall xxxxx for that part of the Premises
which are untenantable on a per diem and proportionate area basis from three (3)
days after the date of the fire or other casualty until the Landlord has
substantially completed the repair and restoration work in the Premises which it
is required to perform, provided, that as a result of such fire or other
casualty, the Tenant does not occupy the portion of the Premises which are
untenantable during such period.
15, CONDEMNATION; If all or part of the Premises, Building or Property is
taken or condemned by any authority for any public use or purpose (including a
deed given in lieu of condemnation), which renders the Premises substantially
untenantable, this Lease shall terminate as of the date title vests in such
authority, and the Rent shall be apportioned as of such date.
If any part of the Premises, Building, or Property is taken or condemned but
the Premises are not rendered substantially untenantable (including a deed given
in lieu of condemnation), this Lease shall not terminate. If the taking reduces
the rentable square feet in the Premises, Rent shall be equitably reduced for
the period of such taking by an amount which bears the same ratio to the Rent
then in effect as the number of square feet so taken or condemned bears to the
Leased Area set forth in Section 1C. The Landlord, upon request and to the
extent of the award in condemnation or proceeds of sale, shall make necessary
repairs and restorations (exclusive of leasehold improvements and personal
property installed by the Tenant) to restore the Premises remaining to as near
its former condition as circumstances will permit, and to the Building and the
Property to the extent necessary to constitute the portion of same not so taken
or condemned as complete.
The Landlord shall be entitled to receive the entire price or award from any
sale, taking or condemnation without any payment to the Tenant and the Tenant
hereby assigns to the Landlord the Tenant's interest, if any, in such award.
However, the Tenant shall have the right separately to pursue against the
condemning authority an award in respect to the loss, if any, to leasehold
improvements paid by the Tenant without any credit or allowance for the Landlord
and for any loss for injury, damage, or destruction of the Tenant's business
resulting from such taking. Under no circumstances shall the Tenant seek or be
entitled to any compensation for the value of its leasehold estate which Tenant
hereby assigns to Landlord.
5 of 9
16. ASSIGNMENT AND SUBLEASE: Tenant shall have the right to sublet all or any
portion of the Leased Premises without the prior written consent of Landlord;
provided that each such sublease shall be subject and subordinate to this Lease
and Tenant shall remain liable for the performance of all of its covenants and
agreements under this Lease. Notwithstanding the foregoing, Tenant shall not
assign this Lease in whole or in part without the consent of Landlord, which
consent shall not be unreasonably withheld, provided that, without the consent
of Landlord; Tenant may assign this Lease to (i) any subsidiary or other entity
owned at least 51%, directly or indirectly, by Tenant (ii) to any person, firm
or corporation who is the purchaser of all or substantially all of the assets of
Tenant or is the successor to substantially all the assets and business of
Tenant by virtue of a corporate merger or consolidation of, with or into Tenant,
or (iii) any general partner of Tenant. No such assignment without the consent
of Landlord, shall be effective unless each such assignee by written instrument
or operation of law, shall assume and become bound to perform and observe all of
the covenants and agreements of Tenant under this Lease, provided that Tenant
shall not be released of liability for the payment of Rent and for the
performance and observance of all of the other covenants and agreements of
Tenant under the Lease after the effective time of such assignment.
17. HOLDING OVER: If the Tenant, or any assignee or sublessee of the Tenant,
shall continue to occupy the Premises after the termination or expiration of
this Lease (including a termination by notice under Section 24 or a termination
or expiration under Section 27), without the prior written consent of the
Landlord, such tenancy shall be a Tenancy at Sufferance. During the period of
any hold over tenancy by the Tenant, or any assignee or sublessee, the Landlord,
by notice to the Tenant, may adjust the Rent to an amount equal to one hundred
and fifty percent of the Rent of the last month of the Term in which Rent was
payable. Acceptance by the Landlord of any Rent after termination shall not
constitute a renewal of this Lease or a consent to such hold over occupancy nor
shall it waive the Landlord's right of re-entry or any other right contained in
this lease or provided by law.
18. SUBORDINATION AND ATTORNMENT: This Lease and the right of the Tenant
hereunder are expressly subject and subordinate to the lien and provisions of
any mortgage, deed of trust, deed to secure debt, ground lease, assignment of
leases, or other security instrument or operating agreement (collectively a
"Security Instrument") now or hereafter encumbering the Premises, the Building,
the Property, or any part thereof, and all amendments, renewals, modifications
and extensions of and to any such Security Instrument and to all advances made
or hereafter to be made upon such Security instrument. The Tenant agrees to
execute and deliver such further instruments, in such form as may be required by
Landlord or any holder of a proposed or existing Security instrument,
subordinating this Lease to the lien of any such Security Instrument as may be
requested in writing by the Landlord or holder from time to time
In the event of the foreclosure of any such Security Instrument by voluntary
agreement or otherwise, or the commencement of any judicial action seeking such
foreclosure, the Tenant, at the request of the then Landlord, shall attorn to
and recognize such mortgagee or purchaser in foreclosure as the Tenant's
landlord under this Lease. The Tenant agrees to execute and deliver at any time
upon request of such mortgagee, purchaser, or their successors, any instrument
to further evidence such attornment.
The Tenant shall from time to time, upon not less than seven (7) days' prior
written request by the Landlord, deliver to the Landlord a statement in writing
certifying that this Lease is unmodified and in full force and effect, or, if
there have been modifications, that this Lease, as modified, is in full force
and effect; providing a true, correct and complete copy of the Lease and any and
all modifications of the Lease: the amount of each item of the Rent then
payable under this Lease and the date to which the Rent has been paid; that the
Landlord is not in default under this Lease or, if in default, a detailed
description of such default; that the Tenant is or is not in possession of the
Premises, as the case may be; and containing such other information and
agreements as may be reasonably requested.
Notwithstanding anything in this Lease (including, without limitation, this
Section 20) to the contrary, however, Landlord shall cause the holder of such
Security interest shall execute and deliver to Tenant a nondisturbance and
attornment agreement which provides that so long as no default has occurred and
is continuing beyond the period of time allowed for the remedy thereof under the
terms of this Lease, the holder of the Security Interest (i) shall not disturb
Tenant's leasehold interest or possession of the Premises in accordance with the
terms hereof, (ii) shall permit application of all proceeds of insurance and all
awards and payments in connection with the exercise or threatened exercise of
the power of eminent domain in accordance with the provisions of this Lease, and
(iii) waives all rights or
6 of 9
interests in any trade fixtures of either Tenant or any of its subtenants. It
shall be a condition to the effectiveness of this Lease and Landlord shall
deliver to Tenant a subordination, nondisturbance and attornment agreement in
accordance with the terms of the preceding sentence, with respect to each
Security Interest which now constitutes a lien against the Building of the
Property.
19. WAIVER AND INDEMNIFICATION: To the full extent permitted by law, the
Tenant hereby releases and waives all claims against the Landlord and its
agents, employees, officers, directors, and independent contractors, for injury
or damage to person, property or business sustained in or about the Property,
the Building, or the Premises by the Tenant, its agents or employees other than
damage proximately caused by the gross negligence or willful misconduct of the
Landlord or its agents or employees.
The Tenant agrees to indemnify and hold harmless the Landlord and its agents
and employees, from and against any and all liabilities, claims, demands, costs,
and expenses of every kind and nature, including those arising from any injury
or damage to any person (including death) or property sustained in the Premises,
or resulting from the failure of the Tenant to perform its obligations under
this Lease; provided, however, the Tenant's obligations under this section shall
not apply to injury or damage resulting from the negligence or willful act of
the Landlord or its agents or employees.
The Landlord agrees to indemnify and hold harmless the Tenant, and its
respective agents and employees, from and against any and all liabilities,
claims, demands, costs and expenses of every kind and nature, arising from any
injury or damage to any person (including death) or property sustained in or
about the Building proximately caused by the gross negligence or willful act or
omission of the Landlord; provided, however, the Landlord's obligations under
this section shall not apply to injury or damage resulting from the negligence
or willful act or omission of the Tenant, or its agents or employees.
Landlord and Tenant on behalf of themselves and all others claiming under
them, including any insurer, waive all claims against each other, including all
rights of subrogation, for loss or damage to their respective property
(including, but not limited to, the Premises) arising from fire, smoke damage,
windstorm, hail, vandalism, theft, malicious mischief and any of the other
perils normally insured against in an "all risk" of physical loss insurance
policy which are normally not insured against in a "named peril" insurance
policy, regardless of whether insurance against those perils is in effect with
respect to such party's property and regardless of the negligence of either
party. If either party so requests, the other party shall obtain from its
insurer a written waiver of all rights of subrogation that it may have against
the other party.
20. SURRENDER OF PREMISES; Upon the expiration or termination of this Lease or
the termination of the Tenant's right of possession of the Premises, the Tenant
shall surrender and vacate the Premises immediately and deliver possession of
the Premises, the Tenant shall surrender and vacate the Premises immediately and
deliver possession thereof to the Landlord in a clean, good, and tenantable
condition, except for a) damages from fire or other casualty; b) reasonable use;
c) ordinary wear and tear. Any movable trade fixtures and personal property
that may be removed from the Premises by the Tenant at the end of the Lease
term, but which are not so removed, shall be conclusively presumed to have been
abandoned by the Tenant and title to such property shall pass to the Landlord
without any payment or credit; or, the Landlord may, at its option, either store
or dispose of such trade fixtures and personal property at the Tenant's expense.
21. EVENTS OF DEFAULT: Each of the following shall constitute an event of
default by the Tenant under this Lease: (1) the Tenant fails to pay any
installment of Rent or Additional Rent within ten (10) days after the date on
which the installment of Rent or Additional Rent first becomes due; (2) the
Tenant fails to observe or perform its obligations under sub-section (d) of
Section 4 above and such violation continues for more than 24 hours after such
notice or Tenant fails to observe or perform any of the other covenants,
conditions or provisions of this Lease other than the payment of any installment
of Rent or Additional Rent, and fails to cure such default within fifteen (15)
days after written notice from the Landlord to the Tenant. In the event that 15
days is an insufficient time during which to cure such failure, Tenant shall
have a longer, reasonable period of time during which to correct such failure,
so long as Tenant commences such correction with 15 days after receipt of
Landlord's notice and thereafter diligently pursues such correction to
completion; (3) the Tenant fails a second time to observe or perform any of the
other
7 of 9
covenants, conditions or provisions of this Lease other than the payment of any
installment of Rent or Additional Rent after prior written notice of the
failure.
Upon the occurrence of an event of default by the Tenant under this Lease,
the Landlord at its option, without further notice or demand to the Tenant, may
in addition to all other rights and remedies provided in this Lease, at law or
in equity:
A. Terminate this Lease and the Tenant's right of possession of the
Premises, and recover all damages to which the Landlord is entitled under this
Lease, at law and in equity, specifically including, without limitation, all the
Landlord's expenses of reletting (including repairs, alterations, improvements,
additions, decorations, legal fees and brokerage commissions).
B. Terminate the Tenant's right of possession of the Premises without
terminating this Lease, in which event the Landlord may relet the Premises or
any part thereof for the account of the Tenant, for such rent and such term and
upon such terms and conditions as are acceptable to the Landlord. For purposes
of any reletting of the Premises, the Landlord is authorized to redecorate,
repair, alter and improve the Premises to the extent necessary or desirable in
the Landlord's judgment. For any period during which the Premises have not been
relet, Tenant shall pay Landlord monthly on the first day of each month during
the period that Tenant's right of possession is terminated, a sum equal to the
amount of Rent due under this Lease for such month. If and when the Premises
are relet and a sufficient sum is not realized from such reletting after payment
of all the Landlord's expenses or reletting (including repairs, alterations,
improvements, additions, decorations, legal fees and brokerage commissions) to
satisfy the payment of Rent due under this Lease for any month, the Tenant shall
pay to the Landlord any such deficiency monthly upon demand. The Tenant agrees
that the Landlord may file suit to recover any sums due to the Landlord under
this section and that such suit or recovery of any amount due the Landlord shall
not be any defense to any subsequent action brought for any amount not
previously reduced by judgment in favor of the Landlord. If the Landlord elects
to terminate the Tenant's right to possession only without terminating this
Lease, the Landlord may, at its option, enter into the Premises, removing the
Tenant's signs and other evidences of tenancy, and take and hold possession
thereof; provided, however, that such entry and possession shall not terminate
this Lease or release the Tenant, in whole or in part, from the Tenant's
obligation to pay the Rent reserved hereunder for the full Term or from any
other obligation of the Tenant under this Lease.
22. SUCCESSOR AND ASSIGNS: This Lease shall bind and insure to the benefit of
the successors, assigns, heirs, executors, administrators, and legal
representatives of the parties hereto. In the event of the sale, assignment, or
transfer by the Landlord of its interest in the Building or in this Lease (other
than a collateral assignment to secure a debt of the Landlord prior to
enforcement) to a successor in interest who expressly assumes the obligations of
the Landlord hereunder, the Landlord shall thereupon be released or discharged
from all of its covenants and obligations hereunder, except such obligations as
the Landlord shall have accrued prior to any such sale, assignment or transfer;
and the Tenant agrees to look solely to such successor of the Landlord for
performance of such obligations. Any securities or funds given by the Tenant to
the Landlord to secure performance by the Tenant of its obligations hereunder
may be assigned by the Landlord to such successor of the Landlord and, upon
acknowledgment by such successor or receipt of such security and its assumption
of the obligation to account for such security in accordance with the terms of
the Lease, the Landlord shall be discharged of any further obligation relating
thereto. The Landlord's assignment of the Lease or of any or all of its rights
herein shall in no manner affect the Tenant's obligations hereunder. The
Landlord shall have the right to freely sell, assign or otherwise transfer its
interest in the Building and/or this Lease.
23. NON-WAIVER: No waiver of any covenant or condition of this Lease by either
party shall be deemed to imply or constitute a further waiver of any other
covenant or condition of this Lease.
24. AUTOMATIC RENEWAL: Following the term, Tenant shall have an option to
extend the term of this Lease for one (1) additional term of three (3) years
each "Extended Term". The Extended Term shall be on and subject to all of the
same terms, covenants and conditions as herein contained, except that Monthly
Rent shall be an amount equal to the fair rental value of the Premises. The
option for this Extended Term shall be exercised only by written notice from
tenant to Landlord given no less than 90 days prior to the expiration of the
immediately preceding term.
8 of 9
25. LIMITATION OF THE LANDLORD'S LIABILITY; As used in this Lease, the term
"Landlord" shall mean the entity herein named as such, and its successors and
assigns. No person holding the Landlord's interest under the Lease (whether or
not such person is named as the "Landlord") shall have any liability hereunder
after such person ceases to hold such interest, except for any liability
accruing hereunder while such person held such interest. No principal, officer,
employee, or partner (general or limited) of the Landlord shall have any
personal liability under any provision of this Lease. If the Landlord defaults
in the performance of any of its obligations under this Lease or otherwise, the
Tenant shall look solely to the Landlord's interest in the Building and not to
the other assets of Landlord or the assets, interest, or rights of any
principal, officer, employee, or partner (general or limited) for satisfaction
of the Tenant's remedies on account thereof.
26. COMMON AREAS: For purposes of this Lease "Common Areas" shall mean all
areas, improvements, space, and equipment (owned or controlled by the Landlord)
in or at the Property, provided by the Landlord for the common or joint use and
benefit of tenants, customers and other invitees.
27. MISCELLANEOUS: This Lease, the Exhibits, the Riders and Addendums
contained herein or attached hereto contain the entire agreement between the
Landlord and the Tenant and there are no other agreements, either oral or
written. This Lease shall not be modified or amended except by a written
document signed by the Landlord and the Tenant which specifically refers to this
Lease. The captions in this Lease are for convenience only and in no way
define, limit, construe or describe the scope or intent of the provisions of
this Lease. This Lease shall be construed in accordance with the Laws of the
state in which the Building is located. If any provision of this Lease or any
amendment hereof is invalid or unenforceable in any instance, such invalidity or
unenforceability shall not affect the validity or enforceability of any other
provision in any circumstance not controlled by such determination.
28. TENANT'S INSURANCE: Tenant shall obtain and keeping force during the terms
of this Lease, including any extension and renewal, comprehensive general
liability insurance, including contractual liability coverage, insuring Landlord
(as an additional insured) and Tenant against any liability arising out of the
ownership, use, occupancy or maintenance of the Premises, and all areas
appurtenant thereto. Such policy shall provide minimum limits of $1,000,000 for
damage to property or for death or injury to any one person in any one accident.
Tenant shall deliver to Landlord, prior to occupancy of the Premises, a
certificate of insurance and evidence of payment of one year's premium, and
shall deliver a new certificate as and when the policy is renewed or replaced.
The policy will not be subject to cancellation, non-renewal, reduction or other
change except after at least thirty (30) days prior written notice to Landlord.
If Tenant fails to comply with such requirements, Landlord may obtain such
insurance and keep the same in effect and tenant shall pay Landlord, as
Additional Rent due hereunder, the premium cost thereof upon demand.
29. NO RECORDING: NEITHER THIS LEASE NOR ANY MEMORANDUM OF THIS LEASE MAY BE
RECORDED OR FILED FOR RECORD IN ANY PUBLIC RECORDS WITHOUT THE SEPARATE EXPRESS
WRITTEN CONSENT, IN RECORDABLE FORM, OF THE LANDLORD.
30. RIDERS & ADDENDUMS: All riders and addendums contained herein or attached
hereto shall be deemed to be a part hereof and hereby incorporated in this Lease
by reference.
9 of 9
XXXXX
=====
LEASE RIDER
This Rider is attached to and made a part of the Lease dated 31 July 96, by and
between Centoff Realty Company, Inc., a Delaware Corporation ("Landlord") with
its principal office at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and PMT
Services, Inc., a Corporation organized and existing under the laws of the State
of Tennessee, ("Tenant") with its principal office at Xxx Xxxxxxxx Xxxxx, Xxxxx
000, Xxxxxxxxx, Xxxxxxxxx 00000.
31. RENT ADJUSTMENT: The monthly rental shall be adjusted as follows:
October 1, 1996 - September 30, 1997: $24,056 per month
October 1, 1997 - September 30, 1998: $25,016 per month
October 1, 1998 - September 30, 1999: $26,016 per month
October 1, 1999 - September 30, 2000: $27,057 per month
October 1, 2000 - December 31, 2000: $28,140 per month
32. FIRST RIGHT OF REFUSAL: The Tenant shall have a first right of refusal on
the remaining square feet (approximately 4754 rentable square feet) on the third
floor of the Kingsport Building. The Tenant must provide written notice prior
to December 31, 1996 of their intent to expand into the entire suite (at their
same rental rate) beginning June 1, 1997 and continuing over the remaining term
of their lease. Tenant shall also have a Right of Refusal on all other space
which becomes available in the Kingsport Building.
