Facilities Agreement - American Software Inc. and Logility Inc.
FACILITIES AGREEMENT
THIS FACILITIES AGREEMENT (this "Agreement"), dated as of the 1st day of
August, 1997 (the "Effective Date"), is made and entered into by and between
AMERICAN SOFTWARE, INC., a Georgia corporation ("ASI"), and LOGILITY, INC., a
Georgia corporation ("Logility"). The terms "Logility" and "ASI" shall include
any subsidiary of Logility and ASI, respectively.
W I T N E S S E T H :
WHEREAS, ASI and Logility have entered into that certain Subsidiary
Formation Agreement, dated of even date herewith, pursuant to which ASI has
agreed to sell to Logility, and Logility has agreed to purchase from ASI,
certain tangible and intangible property and assets of ASI relating to the
business and operations of the Supply Chain Planning products division of ASI;
WHEREAS, ASI desires to provide to Logility, and Logility desires to
accept, the right to use, in some cases in common with ASI, certain office
facilities owned or leased, as applicable, by ASI as identified on Schedule I
hereto (the "Facilities", and together with the non-exclusive right to use
walkways, parking areas, and other common areas appurtenant to the Facilities,
the "Premises") on the terms and conditions set forth in this Agreement; and
WHEREAS, the parties understand that certain of the Facilities are
currently, and will continue to be, occupied and used by ASI for the conduct of
ASI's business and that the joint use of the Facilities as contemplated by this
Agreement will require mutual cooperation and accommodation by ASI and Logility.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements herein contained, the sufficiency of which is hereby acknowledged,
ASI and Logility agree as follows:
1. Premises and Term.
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1.1. Subject to all of the terms and conditions hereof, ASI hereby
provides to Logility, and Logility hereby accepts from ASI, (i) the exclusive
right to use each of the Premises identified in Schedule I as exclusive to
Logility, and (ii) the non-exclusive right to use in common with ASI each of the
Premises identified in Schedule I as non-exclusive. In addition to the Premises
identified in Schedule I, ASI may from time to time, provide Logility the right
to use additional office facilities; provided, that the use of such facilities,
as well as the other terms and conditions applicable to Logility's use thereof,
shall be as mutually agreed in writing by ASI and Logility. Upon such
agreement, all such office facilities shall be included in the term "Premises"
for purposes of this Agreement.
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1.2. The term of this Agreement (the "Initial Term") shall be for a period
of two years commencing on the Effective Date, and ending on midnight of the
date immediately preceding the second anniversary of the Effective Date (the
"Expiration Date"), unless sooner terminated as hereinafter provided; provided,
however, notwithstanding anything to the contrary in this Section 1, this
Agreement may be terminated prior to the Expiration Date, as may be hereinafter
extended, in accordance with Section 8 below.
1.3. Unless this Agreement has been sooner terminated pursuant to Section
8 below, and provided Logility is not then in default under the terms of this
Agreement, the Initial Term shall be automatically extended for additional
successive period(s) of one year each (each such period, a "Renewal Term" and,
together with the Initial Term, the "Term"), beginning on the date immediately
following the Expiration Date of the Initial Term or Renewal Term then in
effect, upon the same terms, conditions, covenants and provisions as are
provided in this Agreement.
2. Right to Use the Premises.
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2.1. As of the Effective Date, Logility's right to use the Premises shall
constitute:
(i) with regard to those Premises identified in Schedule I as exclusive to
Logility, an exclusive right to use each entire Premises as it may exist from
time to time; and
(ii) with regard to those Premises identified in Schedule I as non-exclusive, a
non-exclusive right to use, in common with ASI, each entire Premises as it may
exist from time to time, other those areas identified from time to time by
agreement of ASI and Logility to be restricted for the exclusive use of one of
the parties hereto. The foregoing notwithstanding, upon request by either
party, ASI and Logility shall negotiate in good faith a reconfiguration of any
given Premises in order to restrict access to portions of such Premises for
either party's exclusive use, including, without limitation, building partitions
and establishing separate access, in accordance with Section 4 below. If the
parties are unable to agree upon a mutually satisfactory reconfiguration of a
given Premises, then Logility shall promptly vacate such Premises, and Schedule
I hereto shall be amended to delete the affected Premises from the terms of this
Agreement.
2.2. Notwithstanding anything to the contrary contained this Agreement,
ASI shall in any event be entitled to enter upon any part of any Premises
(including, without limitation, Premises identified as exclusive to Logility or
areas in non-exclusive Premises restricted for the exclusive use of Logility
pursuant to Section 2.1(ii)), at any time and from time to time, without the
prior consent of Logility, (i) as necessary or appropriate for the performance
of ASI's obligations under this Agreement or any underlying lease, (ii) for
purposes of inspecting the Premises for compliance with Logility's obligations
under this Agreement, (iii) to show any Premises to a prospective purchaser or
mortgagor, (iv) to make alterations, additions, repairs, or improvements to any
Premises pursuant to Section 4.3, or (v) in case of an emergency.
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3. Payment for Premises.
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3.1. Logility shall make monthly payments to ASI for each Premises as
follows:
(i) with regard to the office facilities utilized exclusively by Logility
(each, an "Atlanta Premises") in the buildings identified in Schedule II hereto
(each, an "Atlanta Facility"), Logility shall pay to ASI (I) base rent based on
an annual rate of $17.00 per rentable square foot of each Atlanta Premises, plus
(II) Logility's Percentage Share of the increase in Operating Costs with respect
to each Atlanta Facility in which an Atlanta Premises is located during each
fiscal year of ASI throughout the Term above the Operating Costs with respect to
such Atlanta Facility during the 1997 fiscal year of ASI; and
(ii) with regard to each Premises other than the Atlanta Premises, Logility
shall pay to ASI an amount equal to Logility's Percentage Share of the Operating
Costs with respect to the Facility at which such Premises is located during each
fiscal year of ASI throughout the Term. In the event additional Premises are
provided by ASI to Logility pursuant to Section 1.1, then, except as provided in
item (i) above or unless otherwise expressly agreed by the parties, Logility's
monthly payments to ASI for such occupancy shall be determined in accordance
with this item (ii).
3.2 Payments to be made to ASI under Section 3.1 shall be made, in
arrears, and without offset, demand, or defense, on or before the fifth (5th)
day of each month throughout the Term with respect to each Premises, and each
such payment shall be delivered to the location designated by ASI from time to
time for each Premises (or if no location is so designated, to the address for
notices in this Agreement) and in the local currency of the country in which
such Premises is located. In the event any payment due to ASI under this
Agreement is not received by ASI within five (5) days of the date when due,
Logility shall make an additional payment to ASI equal to five percent (5%) of
said overdue payment at the time of and in addition to the payment as a late
payment charge. If the first or last month of the Term is a partial month, the
monthly charge shall be prorated based upon the actual number of days in such
partial month.
3.3 For purposes of this Section 3, the following terms shall have the
meanings herein specified:
(i) "Operating Costs" means any and all costs, expenses, and disbursements of
every kind and character which ASI shall incur, pay, or become obligated to pay
in connection with the ownership (or lease, as appropriate), management,
operation, maintenance, or occupancy of a Facility (including, but not limited
to, depreciation of such Facility if such Facility is owned by ASI), the intent
being that this Agreement shall create a "net, net, net" lease for each
Premises.
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(ii) "Logility's Percentage Share" means:
(A) with regard to each Atlanta Premises, the quotient (expressed as a
percentage) obtained by dividing the rentable square feet of such Atlanta
Premises by the rentable square feet of the Atlanta Facility in which such
Atlanta Premises is located, and multiplying such quotient by 100. In the
event, Logility's Percentage Share is changed during a fiscal year of ASI by
reason of a change in the rentable square feet of an Atlanta Premises (by
agreement of ASI and Logility) or the rentable square feet of an Atlanta
Facility, Logility's Percentage Share shall thereafter mean the result obtained
by using the revised net rentable square feet in the foregoing formula, and
Logility's Percentage Share shall be determined on the basis of the number of
days during such fiscal year at each percentage share and shall take effect
immediately upon written notice thereof from ASI to Logility; and
(B) with regard to each Premises other than an Atlanta Premises, the
quotient (expressed as a percentage) obtained by dividing the number of Logility
employees based at such Premises by the sum of all ASI employees and Logility
employees based at such Premises. In the event, Logility's Percentage Share is
changed during a fiscal year of ASI by reason of a change in the number of
Logility employees based at a Premises or a change in the number of ASI
employees based at such Premises (in each event determined as of the last day of
each fiscal quarter of ASI throughout the Term), Logility's Percentage Share
shall thereafter mean the result obtained by using the revised net number of
Logility employees based at such Premises in the foregoing formula, and
Logility's Percentage Share shall be determined on the basis of the number of
days during such fiscal year at each percentage share and shall take effect
immediately upon written notice thereof from ASI to Logility.
4. Use.
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4.1. Logility specifically agrees that its right to use each of the
Premises is limited to each of the Premises in its existing condition "as-is"
and "where-is" and acknowledges that, in entering into this Agreement, Logility
does not rely on, and ASI does not make, any express or implied representations
or warranties as to any matters including, without limitation, any
characteristics of any of the Premises, the suitability of any of the Premises
for Logility's intended use, or the compliance or noncompliance of the Premises
or any use thereof with any Applicable Laws or underlying leases. As used in
this Agreement, the term "Applicable Laws" means all applicable laws, codes,
ordinances, rules, and regulations of all foreign, federal, state, county,
municipal, or other governmental authorities or instrumentalities. Logility has
inspected each Premises and has found it to be in satisfactory condition.
4.2. Logility shall not make any alterations or improvements to any of the
Premises whatsoever, including without limitation, placing any sign or
identification of any kind whatsoever in or on any of the Premises, without the
prior written consent of ASI, which consent shall not be unreasonably withheld;
provided, however, ASI may withhold its consent in its sole discretion to any
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alteration or improvement which is structural in nature or inconsistent with the
existing interior decor of a Premises. Failure of ASI's landlord to consent to
or approve an alteration or improvement, where required by an underlying lease,
shall be reasonable grounds for ASI to withhold consent under this Section.
4.3. ASI reserves the right, at any time, and from time to time, to make
alterations or improvements to, or to decrease the size or area of all or any
part of, any Premises identified in Schedule I as non-exclusive, provided that
any such alteration or improvement shall not materially and adversely affect
Logility's use of such Premises and provided any alteration or improvement to
any Premises which would materially affect Logility's use of such Premises shall
not be made without reasonable notice to Logility.
4.4. Logility shall use each of the Premises only for general office and
related incidental purposes for which it has historically been used by the
Logility division of ASI and for no other use or purpose whatsoever. In no
event shall Logility use or permit the use of any of the Premises for any
purpose or use that is (i) inconsistent with or interferes in any way with the
conduct of other business operations in any of the Premises, or (ii) in
violation of any provision of an underlying lease.
4.5. Logility shall be responsible for and shall supervise and control
all of its officers, agents, employees, licensees, contractors, customers, and
other invitees (collectively, "Personnel") so as to assure compliance with all
of the terms and conditions of this Agreement. Logility shall comply with all
present and future security measures implemented by ASI (or the Landlord of any
Premises leased by ASI) in each of the Premises, including, without limitation,
prohibitions on access to certain areas in Premises to competitors of ASI.
Without limitation of the foregoing, Logility shall ensure that (i) no Personnel
enter areas within any Premises restricted for the exclusive use by ASI, except
with prior written consent from an authorized representative of ASI, (ii) all
Personnel comply with all Applicable Laws and each underlying lease, and (iii)
no Personnel conduct any illegal activities or activities resulting in any
nuisance or which may constitute harassment of any kind. All Personnel shall be
clearly identified as affiliated with Logility and, if requested, Logility shall
require each person to comply with any applicable dress code and wear
appropriate name badges or other easily visible identification approved by ASI
at all times while on any of the Premises.
5. Maintenance; Compliance with Laws, Rules and Regulations; Hazardous
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Materials.
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5.1. Logility shall not permit or suffer any material injury, waste, or
nuisance in or to any of the Premises, and Logility shall be responsible for
maintaining in a clean, safe, and sanitary condition each of the Premises
identified in Schedule I as exclusive to Logility. Logility shall not make any
repairs to any of the Premises, without the prior written consent of ASI, which
consent may be withheld in ASI's sole discretion. If ASI determines that it is
necessary to repair any damage attributable to Logility or its Personnel,
Logility shall reimburse ASI for the cost of all such repairs within thirty (30)
days of receipt by Logility of an invoice therefor from ASI.
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5.2. Logility, at Logility's sole cost and expense, shall comply in all
material respects with all Applicable Laws relating to Logility's use of each of
the Premises; provided that if structural or capital improvements are required
at any Premises in order to comply with any Applicable Law, either ASI or
Logility may terminate this Agreement with respect to any such Premises.
Notwithstanding the foregoing, Logility shall not make any physical change to
any Premises in order to comply with an Applicable Law without the prior written
consent of ASI, which consent may be withheld in ASI's sole discretion. If ASI
consents to any changes, at ASI's election (but not obligation), ASI may make
such changes, in which event Logility shall, within thirty (30) days of receipt
by Logility of an invoice therefor from ASI, reimburse ASI for all actual costs
and expenses incurred by ASI in making such changes. Failure of ASI's landlord
to consent to or approve any physical change to a Premises, where required by an
underlying lease, shall be reasonable grounds for ASI to withhold consent under
this Section.
5.3. Logility shall comply with the requirements of ASI's property,
liability, and workers compensation insurance carriers and all rules and
regulations of the Premises as are established from time to time by ASI (or
ASI's landlord if the Premises is leased by ASI), including, without limitation,
all security procedures and requirements for each Premises.
5.4. This Agreement is expressly subordinate to, and subject to the terms
of, any underlying lease for any of the Premises, and, accordingly, Logility
shall comply with all provisions of any underlying lease for any of the Premises
that are leased by ASI. Either party may request that the other party enter into
a specific sublease or similar arrangement with respect to any Premises and,
subject to the consent of the primary landlord for any leased Premises, the
parties shall negotiate in good faith such a sublease or other arrangement on
terms customary for the location of the Premises and consistent with the terms
of this Agreement. At the request of ASI, Logility shall use diligent efforts
to satisfy the requirements of any underlying lease with respect to Logility's
use of any Premises, including, but not limited to, executing and delivering
such documents and taking such other actions as reasonably may be required by
the landlord under the terms of any underlying lease (including terminating this
Agreement with respect to the Premises and vacating the Premises, provided that
ASI and Logility will cooperate in good faith to vacate in a manner so as to
minimize any disruption of Logility's business and any cost to Logility) or to
prevent or cure a default under any underlying lease, as well as any other
actions reasonably requested by ASI with respect thereto. With respect to each
Premises which is subject to an underlying lease, this Agreement is expressly
made contingent upon consent by the landlord of such Premises, if required by
the terms of the underlying lease, to the use and occupancy by Logility of such
Premises in accordance with the terms of this Agreement; provided, however, that
a landlord's refusal to consent to this Agreement with regard to a particular
Premises shall in no event affect Logility's or ASI's obligations hereunder with
regard to any other Premises, although Schedule I hereto shall be amended to
delete the affected Premises from the terms of this Agreement.
5.5. Logility shall not cause or permit any Hazardous Material to be used,
stored, discharged, released, or disposed of in, from, under, or about any of
the Premises in violation of any Applicable Law. As used herein, the term
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"Hazardous Material" means any substance or material which has been determined
by any applicable foreign, federal, state, county, municipal, or other
governmental authority to be capable of posing a risk of injury to health or
safety or damage to the environment. Logility shall not undertake any hazardous
or other activity at any of the Premises which could result in an increase in
ASI's or any landlord's insurance premiums.
6. Insurance; Condemnation.
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6.1. At all times during Logility's use of any of the Premises under this
Agreement, Logility shall procure at its cost and expense and keep in effect
comprehensive general liability insurance, including contractual liability with
a combined single limit of liability of not less than one million dollars
($1,000,000), or such greater amount as may be required under any underlying
lease, in accordance with the following requirements:
6.1.1. Such coverage shall be in a commercial or comprehensive general
liability form with at least the following coverages: (i) including employees as
additional insureds, and (ii) providing for blanket contractual coverage, broad
form property damage coverage and products and completed operations coverage.
Such coverage may be provided by a combination of primary and umbrella liability
coverage.
6.1.2. Such insurance shall be issued by financially reputable insurance
companies reasonably acceptable to ASI, shall name ASI and any landlord under
any underlying lease as additional insureds, shall include contractual liability
coverage insuring the liability assumed hereunder by Logility, shall provide
that it is primary insurance and not excess over or contributory with any other
valid, existing, and applicable insurance covering the same loss carried by ASI
or any other party, shall provide for severability of interests, shall further
provide that an act or omission of one of the named insureds which would void or
otherwise reduce coverage shall not reduce or void the coverage as to any
insured, shall afford coverage for all claims based on acts, omissions, injury,
or damage which occurred or arose (or the onset of which occurred or arose) in
whole or in part during the policy period, and shall provide that ASI and any
landlord under an underlying lease will receive at least thirty (30) days'
written notice from the insurer prior to any cancellation or change of coverage.
6.2. Logility shall maintain Workers Compensation Insurance in the amounts
and coverages required under workers compensation, disability, and similar
employee benefit laws applicable to the state or country where each of the
Premises is located and Employer's Liability Insurance, with limits customary to
the state or country where each of the Premises is located.
6.3. Logility shall maintain automobile liability insurance in the amounts
and coverages required by the state or country where each of the Premises is
located, with limits customary to the state or country where each of the
Premises is located, for bodily injury and property damage combined. Coverage
shall include owned (if any), leased (if any), and non-owned, hired automobiles.
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6.4. Logility shall bear all risk to its property at each of the Premises
and may maintain at its sole expense such fire and other property insurance on
the property of Logility in each Premises as it deems desirable for its
protection. If any of the Premises shall be damaged or destroyed by fire or any
other casualty howsoever caused or by any other cause whatsoever, Logility
agrees to give prompt notice thereof to ASI. ASI shall have no obligation to
Logility whatsoever to repair any damage done to any of the Premises or replace
any property of Logility located therein. If a casualty occurs such that the
underlying lease with respect to any Premises is terminated by ASI or the
landlord, or ASI otherwise elects to cease using any of the Premises as a result
of the casualty, the provisions of Section 8.1 below shall apply, and this
Agreement shall terminate with respect to such Premises. If a casualty occurs
such that Logility's use of a Premises is materially adversely affected and the
damage is not repaired within ninety (90) days, Logility shall have the right to
terminate this Agreement with respect to such Premises by written notice to ASI
within thirty (30) days thereafter. If a casualty occurs that results in a
permanent damage or destruction to the Premises which does not rise to the level
described in the preceding sentence, the amount payable by Logility under
Section 3 shall be proportionately reduced for that portion of the Premises
damaged or destroyed.
6.5. If all or any part of any of the Premises or any material portion of
any Premises shall be taken as a result of the exercise of the power of eminent
domain or any transfer in lieu thereof, this Agreement shall terminate as to the
property so taken as of the date of taking, and, in the case of a partial
taking, either ASI or Logility shall have the right to terminate this Agreement
with respect to such Premises by written notice to the other within thirty (30)
days after such date.
6.5.1. In the event of any taking, ASI (subject to the rights of the
landlord under any underlying lease) shall be entitled to any and all
compensation, damages, income, rent, awards, and interest whatsoever which may
be paid or made in connection therewith, and Logility shall have no claim
against ASI for the value of any unexpired term of this Agreement or otherwise;
provided that ASI shall have no claim to any portion of the award that is
specifically allocable to Logility's personal property, relocation expenses, or
the interruption of or damage to Logility's business.
6.5.2. In the event of a partial taking that does not result in a
termination of this Agreement, the amount payable by Logility under Section 3
shall be proportionately reduced for that portion of the Premises taken.
7. Utilities and Services. During the use by Logility of any Premises in
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accordance with this Agreement; (a) if ASI owns the Premises, subject to force
majeure (including any cause beyond ASI's commercially reasonable control), ASI
shall furnish to Logility such services and utilities as are furnished currently
at each such Premises, each in such amounts, on average, as have been
customarily furnished to equivalent space in the respective Premises; and (b) if
ASI leases the Premises, ASI shall use reasonable efforts to cause the landlord
of such leased Premises to furnish to or for the benefit of the Premises the
services and utilities that the landlord is obligated to provide under the
underlying lease, it being understood and agreed that under no circumstances
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shall ASI be required to make any improvements to the respective Premises or the
systems located therein or provide any greater services to the applicable
Premises than the greater of such services as (i) are currently furnished or
(ii) ASI reasonably determines from time to time to be necessary or appropriate
for the conduct of ASI's business in the respective Premises.
8. Termination.
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8.1. Notwithstanding anything in this Agreement to the contrary, the Term
shall in any event terminate with respect to any given Premises (without
affecting the parties' rights and obligations with regard to any other Premises)
on the date of (i) the expiration or termination for any reason of the
underlying lease for such Premises, if such Premises is leased by ASI, or (ii)
the sale, abandonment, or vacation of any such Premises, if such Premises is
owned by ASI. ASI shall give Logility as much advance notice as is reasonably
practicable in connection with any planned early termination of the underlying
lease of any of the leased Premises or the sale, abandonment, or vacation by ASI
of any of the owned Premises. Logility agrees to take all reasonable actions to
accommodate ASI's real estate objectives, including, without limitation,
promptly vacating the Premises where ASI plans to terminate the underlying lease
or operations at a particular Premises. In the event of any such termination of
this Agreement by ASI with respect to any such Premises, (i) Logility's
obligations to make payments to ASI pursuant to Section 3 hereof with respect to
such Premises shall cease as of the effective date of termination, and (ii)
Schedule I hereto shall be amended to delete the affected Premises from the
terms of this Agreement.
8.2. Either party shall have the right to terminate this Agreement with
respect to any given Premises (without affecting the parties' rights and
obligations with regard to any other Premises) for any reason before the end of
the Term, such termination to be effective ninety (90) days after written notice
of termination from the terminating party to the other party. In the event of
any such termination of this Agreement by Logility with respect to any such
Premises, Logility's obligations to make payments to ASI pursuant to Section 3
hereof with respect to such Premises shall cease as the last day of the month in
which the effective date of termination shall occur. In the event of any such
termination of this Agreement by ASI with respect to any such Premises,
Logility's obligations to make payments to ASI pursuant to Section 3 hereof with
respect to such Premises shall cease as of the effective date of termination.
In either event, Schedule I hereto shall be amended to delete the affected
Premises from the terms of this Agreement.
8.3. This Agreement will be subject to early termination by either
Logility or ASI upon one hundred eighty (180) days written notice if ASI ceases
to own shares of Common Stock representing more than 50% of the combined voting
power of the capital stock of Logility.
8.4. If either Logility or ASI shall default in the performance or
observance of any material term, covenant, condition, or agreement contained in
this Agreement, and such condition continues for more than thirty (30) days
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after written notice thereof to the defaulting party (unless a shorter cure
period is provided elsewhere in this Agreement), the other party may terminate
this Agreement immediately upon notice to the defaulting party; provided,
however, if such default by its nature cannot be cured within thirty (30) days,
then the defaulting party shall have such greater period of time to cure such
default as is reasonably necessary, so long as the cure is commenced within the
thirty (30) day period and is thereafter diligently prosecuted to completion.
In no event, however, shall any cure period provided under this Section 8.4
exceed whatever cure period may exist under the underlying lease for ASI to
prevent or cure a default. Upon such termination, Logility shall immediately
vacate and surrender the affected Premises to ASI in accordance with Section
8.6. In addition to the rights of termination under this Section 8.4, ASI shall
be entitled to exercise all other rights and remedies under this Agreement and
under Applicable Laws (which shall he cumulative and not exclusive),
specifically including, without limitation, the right to summary dispossession
of Logility.
8.5. ASI shall be entitled to perform any obligation of Logility under
this Agreement, the performance of which is not commenced within five (5)
business days after notice from ASI or which obligation is not thereafter
diligently prosecuted to completion, and in such event Logility shall reimburse
ASI for all actual costs and expenses incurred by ASI in performing such
obligation.
8.6. Upon the expiration or termination of this Agreement for whatever
reason with respect to any of the Premises, Logility shall surrender to ASI the
applicable Premises, together with all keys for such Premises, in good order and
repair, reasonable wear and tear associated with normal office use excepted, in
broom-clean condition, free and clear of all occupancies, liens, and
encumbrances, and Logility shall remove all of its personal property therefrom.
8.6.1. Any items of Logility's personal property remaining on any Premises
after the expiration or sooner termination of this Agreement with respect to
such Premises, may, at the option of ASI, be deemed abandoned, and, in such
case, may either be retained by ASI as its property or disposed of, without
accountability, at Logility's expense in such manner as ASI may see fit.
8.6.2. Logility shall not hold over beyond the expiration or sooner
termination of this Agreement with respect to any Premises without the express
written consent of ASI.
8.7. The failure of either party hereto to insist on any one or more
circumstances upon the strict performance of any term, covenant, condition, or
agreement under this Agreement, or to exercise any right herein contained, shall
not be construed as a waiver or relinquishment in the future of such term,
covenant, condition, agreement, or right, but the same shall remain in full
force and effect unless the contrary is expressed in writing by the party
waiving or relinquishing same. No payment by Logility or acceptance by ASI of a
lesser amount than shall be due by Logility to ASI hereunder shall be deemed to
be anything but payment on account, and the acceptance by ASI of such lesser
amount, whether by check with an endorsement or statement thereon, or by an
accompanying letter stating that said lesser amount is payment in full, shall
not be deemed an accord and satisfaction, and ASI may accept such payments
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without prejudice to ASI's rights to recover the balance due or pursue any of
ASI's other remedies hereunder.
8.8 Logility's obligations under this Section 8 shall survive the
expiration or termination of this Agreement.
9. Release; Indemnity.
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9.1. Logility acknowledges and agrees that, anything set forth in this
Agreement to the contrary notwithstanding, ASI shall not be responsible for or
liable to Logility, and Logility hereby waives and releases, to the fullest
extent permitted by Applicable Laws, all claims against ASI for any injury,
loss, or damage to any person or property in or about the Premises by or from
any cause whatsoever including, without limitation, acts or omissions of persons
using adjoining premises or any part of the Premises or areas in the vicinity of
the Premises; theft; burst, stopped, or leaking water, gas, sewer or steam
pipes; or interruption or failure of utility or other services for, or existence
of, gas, fire, oil, or electricity in, on or about the Premises. Further
notwithstanding anything to the contrary set forth in this Agreement, in no
event shall ASI be liable for any consequential damages, including without
limitation, lost profits, lost opportunity or interference with Logility's
business, arising out of a breach of this Agreement.
9.2. Logility agrees to indemnify, protect, and defend ASI against and
save and hold ASI harmless from, any and all losses, costs, liabilities, claims,
damages, and expenses, including, without limitation, reasonable attorneys' fees
and expenses, incurred in connection with any injury, loss, or damage to any
person or property arising from the use or occupancy or manner of use or
occupancy of any of the Premises by, or any breach of an underlying lease for
any leased Premises, arising out of the act or omission of, Logility or
Logility's Personnel. This Section 9.2 shall survive expiration or sooner
termination of this Agreement.
10. Miscellaneous.
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10.1. For purposes of this Agreement, the term "subsidiary" means any
corporation, association, partnership, joint venture, or other business entity
of which more than 50% of the voting capital stock or other voting ownership
interests is owned or controlled directly or indirectly by Logility or ASI, as
the case may be, or by one or more of the subsidiaries of Logility or ASI, as
the case may be, or by a combination thereof. A subsidiary, when used with
respect to ASI or Logility, shall also include any other entity affiliated with
ASI or Logility, as the case may be, that ASI and Logility may hereafter agree
in writing shall be treated as a "subsidiary" for purposes of this Agreement.
10.2. This Agreement may not be amended except by an instrument in
writing, executed by ASI and Logility.
10.3. Logility's rights under this Agreement are personal to Logility, and
Logility shall not assign, sublet, or otherwise transfer any right or interest
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under this Agreement to any other party. Subject to the foregoing, this
Agreement and all of the provisions hereof shall be binding upon and inure to
the benefit of, and be enforceable by, the parties hereto and their respective
heirs, administrators, executors, successors, and permitted assigns.
10.4. This Agreement constitutes the entire agreement and understanding
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements, understandings or representations pertaining to
the subject matter hereof.
10.5. Whenever this Agreement requires or permits consent, notice, or
agreement by or on behalf of any party hereto, such consent, notice, or
agreement shall be given in writing. Any consent, notice, or agreement
hereunder by either party shall be given in writing and shall be sufficient in
all respects if (i) delivered personally, (ii) mailed by registered or certified
mail, return receipt requested and postage prepaid, (iii) sent via a nationally
recognized overnight courier service, or (iv) sent via facsimile confined in
writing to the recipient in each case to the other party at its address set
forth below or at such other address designated by notice in the manner provided
in this subparagraph. Such notice shall be deemed to have been received upon
the date of actual delivery if personally delivered or, in the case of mailing,
five (5) business days after deposit in the mail, or, in the case of overnight
courier, one business day after delivered to such courier, or, in the case of
facsimile transmission, when confirmed by the facsimile machine report.
(a) If to ASI to:
American Software, Inc.
470 East Paces Ferry Road
Atlanta, Georgia 30305
Attention: Controller
Fax: 404/264-5813
(b) If to Logility, to:
Logility, Inc.
470 East Paces Ferry Road
Atlanta, Georgia 30305
Attention: Chief Financial Officer
Fax: 404/264-5394
10.6. This Agreement shall be governed by, and construed and enforced in
accordance with the laws of the State of Georgia, without regard for the
conflict of laws provisions thereof
10.7. If a jurisdiction outside the United States in which a Premises is
located requires that this Agreement be registered or filed with any
governmental office in order for this Agreement to be enforceable by or against
either party in that jurisdiction, the parties shall cooperate with such filing
or registration, provided that the registration or filing will not give rise to
a default under an underlying lease or unreasonably increase the likelihood of
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an exercise of remedies for default under an underlying lease or create a cloud
on title to any Premises.
10.8 In the event that any dispute arises between Logility and ASI in
connection with this Agreement, the representatives of each party responsible
for the subject matter of such dispute shall use good faith efforts to resolve
such dispute promptly. In the event that such dispute cannot be resolved by the
parties' representatives, the matter shall be submitted to the parties'
respective Chief Executive Officers ("CEOs") for resolution. In the event that
the CEOs cannot reach resolution of the issue (an "Unresolved Dispute"), then
the Unresolved Dispute shall be settled at the election of either party, by
final and binding independent arbitration. All arbitrations pursuant to this
Agreement shall be conducted before the American Arbitration Association ("AAA")
in Atlanta, Georgia, U.S.A., and shall be carried out in accordance with the
Commercial Arbitration Rules of the AAA then in effect (the "Rules") and the
provisions of this Agreement. Logility and ASI shall each select one arbitrator
and a third arbitrator will be selected unanimously by the arbitrators selected
by Logility and ASI. If the two arbitrators selected by Logility and ASI are
unable to select the third arbitrator within ten (10) days of the appointment of
the two arbitrators, the parties consent to the selection of the third
arbitrator by the AAA administrator. The award of the arbitrators may be
enforced by any court having jurisdiction over the parties.
IN WITNESS WHEREOF, this Facilities Agreement has been duly executed and
delivered by the duly authorized officers of ASI and Logility as of the date and
year first above written.
AMERICAN SOFTWARE, INC. LOGILITY, INC.
By: /s/ James C. Edenfield By: /s/ J. Michael Edenfield
----------------------------- -------------------------------
Name: James C. Edenfield Name: J. Michael Edenfield
Title: President Title: President
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SCHEDULE I
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PREMISES AT WHICH LOGILITY IS ENTITLED TO EXCLUSIVE USE:
5820 Stoneridge Mall Road
Pleasanton, CA 94588
150 Fayetteville Street, Suite 1700
Raleigh, NC 27601
100 West Big Beaver
Troy, MI 48084
25 Corporate Drive
500 Burlington Centre
Burlington, Mass
PREMISES AT WHICH LOGILITY IS ENTITLED TO NON-EXCLUSIVE USE:
470 East Paces Ferry Road
Atlanta, GA 30305
7500 Flying Cloud
Eden Prairie, Minn
5605 North MacArthur Boulevard, Suite 850
Irving, Texas 75038
5000 Birch Street, Suite 5600
Newport Beach, CA 92660
6133 North River Road, Suite 680
Rosemont, ILL
St. George's Business Centre
Brooklands Road
1st Floor, Unit C
Weybridge Surrey, England
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SCHEDULE II
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[ATLANTA FACILITIES]
470 East Paces Ferry Road
Atlanta, GA 30305
443 East Paces Ferry Road
Atlanta, GA 30305
480 East Paces Ferry Road
Atlanta, GA 30305
3110 Maple Drive
Atlanta, GA 30305
3116 Maple Drive
Atlanta, Georgia 30305
3120 Maple Drive
Atlanta, GA 30305
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