1
EXHIBIT 10.13
COVER PAGE
The capitalized terms in this Lease shall have the meanings ascribed
to them below, and each reference to such term in .the Lease shall incorporate
such meaning therein as if fully set forth therein.
LANDLORD: WEEKS REALTY, L.P., a Georgia limited partnership, with its
principal office located at 0000 Xxxx Xxxxx, Xxxxxxxx,
Xxxxxxx 00000
TENANT: LEISURE TIME TECHNOLOGY, INC., a corporation duly organized
and existing under the laws of the State of Georgia.
LEASED
PREMISES: (a) Address: 0000 Xxxxxxxxxxxxxx Xxxxx
(b) Rentable Area: 57,000 square feet
(c) Pro Rata Share: 100%
(d) Project: Gwinnett Park
TERM: Seven (7) years
COMMENCEMENT DATE: February 1, 1998
TERMINATION DATE: January 31, 2005
BASE-RENT
(PER YEAR): $247,950.00
BASE YEAR: 1998
SECURITY DEPOSIT: $22,900.00
TENANT'S AGENT: Xxxxx Xxxxxxxx
Colliers Xxxxxx & Co.
2
LEISURE TIME TECHNOLOGY, INC.
LEASE AGREEMENT
TABLE OF CONTENTS
SECTION PAGE
------- ----
1 LEASED PREMISES...........................................................1
2 TERM......................................................................1
3 RENTAL....................................................................1
4 DELAY IN DELIVERY.........................................................2
5 USE OF LEASED PREMISES....................................................2
6 UTILITIES.................................................................3
7 ACCEPTANCE OF PREMISES....................................................3
8 ALTERATIONS, MECHANICS' LIENS.............................................3
9 QUIET CONDUCT/QUIET ENJOYMENT.............................................4
10 FIRE INSURANCE, HAZARDS...................................................4
11 LIABILITY INSURANCE.......................................................5
12 INDEMNIFICATION...........................................................5
13 WAIVER OF CLAIMS..........................................................5
14 REPAIRS...................................................................6
15 SIGNS, LANDSCAPING........................................................6
16 ENTRY BY LANDLORD.........................................................6
17 TAXES AND INSURANCE INCREASE..............................................7
18 ABANDONMENT...............................................................8
19 DESTRUCTION...............................................................8
20 ASSIGNMENT AND SUBLETTING.................................................9
21 INSOLVENCY OF TENANT......................................................9
22 BREACH BY TENANT..........................................................9
23 ATTORNEYS' FEES/COLLECTION CHARGES.......................................10
24 CONDEMNATION.............................................................10
25 NOTICES..................................................................11
26 WAIVER...................................................................11
27 EFFECT OF HOLDING OVER...................................................11
28 SUBORDINATION............................................................12
3
29 ESTOPPEL CERTIFICATE.....................................................12
30 PARKING..................................................................12
31 MORTGAGEE PROTECTION.....................................................12
32 PROTECTIVE COVENANTS.....................................................13
33 RELOCATION...............................................................13
34 BROKERAGE COMMISSIONS....................................................13
MISCELLANEOUS PROVISIONS....................................................13
EXHIBITS:
EXHIBIT "A": Site Plan
EXHIBIT "B": Floor Plan of the Leased Premises
EXHIBIT "C": Tenant's Acceptance of Premises
EXHIBIT "D": Subordination, Non-disturbance and Attornment Agreement
EXHIBIT "E": Special Stipulations
4
STATE OF GEORGIA
GWINNETT COUNTY
This Lease Agreement is made this 1st day of December, 1997, by and
between WEEKS REALTY, L.P., a Georgia limited partnership, hereinafter referred
to as "Landlord", and LEISURE TIME TECHNOLOGY, INC., hereinafter referred to as
"Tenant".
LEASED PREMISES
1.01 Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the property hereinafter referred to as the LEASED PREMISES, described
as approximately 57,000 rentable square feet of office/warehouse at 0000
Xxxxxxxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxx 00000, Xxxxxxxx Xxxxxx, in Gwinnett
Park, as shown on the plan attached hereto as Exhibit "A" and by reference
incorporated herein. The building in which the Leased Premises are located is
herein referred to as the "Building"; and the real property on which the
building is situated is herein referred to as the "Land".
TERM
2.01 TO HAVE AND TO HOLD said Leased Premises for a term of seven (7)
years, commencing on February 1, 1998 and continuing until midnight on January
31, 2005.
RENTAL
3.01 As rental for the Leased Premises, Xxxxxx agrees to pay to
Landlord, without offset or abatement, the Base Rental as set forth below:
February 1, 1998 - January 31, 2001 $20,662.50/month $247,950.00/year
February 1, 2001 - January 31, 2002 $21,232.50/month $254,790.00/year
February 1, 2002 - January 31, 2003 $21,802.50/month $261,630.00/year
February 1, 2003 - January 31, 2004 $22,372.50/month $268,470.00/year
February 1, 2004 - January 31, 2005 $22,900.00/month $274,800.00/year
due on or before the first day of each calendar month beginning on February 1,
1998 and thereafter for the remainder of the term, together with any other
additional rental as hereinafter set forth Tenant shall pay interest at a rate
of twelve percent (12%) per annum on all payments of rent received after the
fifth (5th) of each month If the Lease shall commence on any date other than
the first day of a calendar month, or end on any date, other than the last day
of a calendar month, rent for such month shall be prorated. Tenant has
deposited with landlord, upon delivery of this Lease Agreement, an amount equal
to Forty-three Thousand Five Hundred Sixty-two and 50/100 Dollars ($43,562.50),
a portion of which, or Twenty Thousand Six Hundred Sixty-two and 50/100 Dollars
($20,662.50), is to be applied as first month's Base Rental, the remaining
portion, or Twenty-two Thousand Nine Hundred and no/100 Dollars ($22,900.00),
shall be held as a refundable security deposit. Landlord may apply all or any
part of the security deposit to cure any default by Tenant hereunder and Tenant
shall promptly restore to the security deposit all amounts so applied upon
invoice therefor. If Tenant shall fully perform each provision of this Lease,
any portion of the security deposit which has not been appropriated by Landlord
in accordance with the provisions hereof shall be returned to Tenant, without
interest, within thirty (30) days after the expiration of the term of this
Lease.
3.02 The rental provided in paragraph 3.01 "Base Rental" above,
includes an allowance ("Allowance") in the amount of $3.00 per square foot,
which is One Hundred Seventy-one Thousand and no/100 Dollars ($171,000.00) for
the construction of tenant improvements on the basis set forth in the plans and
specifications by Catter Enterprises dated September 17, 1997 and revised on
October 30, 1997 attached, or to be attached, hereto in Exhibit "B". In the
event the cost of tenant improvements exceeds the cost of tenant improvement
Allowance, the excess shall be paid by Tenant upon occupancy of the Leased
Premises.
3.03 In addition to the Base Rental, Xxxxxx agrees to pay Landlord as
additional rental, its pro rata share of the amounts described in subparagraph
(a) and (b) below. Each year during the
5
term hereof, Landlord shall give Tenant written notice of its estimate of the
amount of common area maintenance charges and common area utility charges
(collectively "Charges") for the Leased Premises for the calendar year. Tenant
shall, thereafter, during that calendar year, pay to Landlord one-twelfth
(1/12) of the amount set forth in said statement at such time as its monthly
installment of Base Rental hereunder are due and payable. At such time as
Landlord is able to determine the actual Charges for such calendar year,
Landlord shall deliver to Tenant a statement thereof and in the event the
estimated Charges differ from the actual Charges, any adjustment necessary
shall be made to additional rental payments next coming due under this
paragraph
(a) Landlord agrees to maintain those areas around the Building and in
the Project, including parking areas, planted areas, signs and landscaped areas
which are from time to time designated by Landlord. Xxxxxx agrees to pay to
Landlord as additional rental its pro rata share of all ground maintenance
charges and other common area charges and expenses for such maintenance around
Building and the Land ("CAM Charges"). The term "grounds maintenance" shall
include, without limitation all landscaping, planting, lawn and grounds care,
all repairs and maintenance to the grounds, signs and other common areas around
the Building and in the Project and to all sidewalks, driveways, loading areas
and parking areas. CAM Charges shall not include items of a capital nature. In
no event shall any increase in the CAM Charges exceed ten percent (10%) over
CAM Charges for the preceding year.
(b) In the event any utilities furnished to the Building or the Leased
Premises are not separately metered, Tenant shall pay to Landlord, as
additional rental, Tenant's pro rata share of the gas, water, electricity,
fuel, irrigation costs, light and heat, garbage collection services and for all
other sanitary services rendered to the Leased Premises used by Tenant.
Tenant's prorated amount shall be determined on the basis of the size of the
Leased Premises, unless landlord determines that Xxxxxx's use of the Leased
Premises justifies a disproportionate allocation of utility costs to Tenant.
3.04 Xxxxxx agrees to pay as additional rent to Landlord, upon demand,
its pro rata share of any utility surcharges, or any other costs levied,
assessed or imposed by, or at the direction of, or resulting from statutes or
regulations, or interpretations thereof, promulgated by an Federal State
Municipal or local governmental authorities in connection with the use of
occupancy of the Leased Premises.
3.05 Tenant will be entitled from time to time to audit and verify the
operations of the building and the related books and records of Landlord to
assure that the operating expenses from time to time reported by Xxxxxxxx are
in keeping with the provisions of this paragraph. As to any calendar year, any
undertaking by Tenant must be initiated before the end of the following
calendar year; and absent fraud or gross negligence on Landlord's part, the
operating expenses as timely reported by Landlord for the calendar year will be
deemed controlling upon the expiration of Xxxxxx's audit and verification
rights for such calendar year. In the event of any errors, the appropriate
party will make a correcting payment in full to the other party within thirty
(30) days after the determination and communication to all parties of the
amount of such error.
DELAY IN DELIVERY OF POSSESSION
4.01 If Landlord, for any reason whatsoever, cannot deliver possession
of the Leased Premises to Tenant at the commencement of the term of this Lease,
this Lease shall not be void or voidable, nor shall Landlord be liable to
Tenant for any loss or damage resulting therefrom but in that event there shall
be a proportionate reduction of rent covering the period between the
commencement of the term and the time when Landlord can deliver possession. Of
delay is longer than one (1) months, Landlord will provide Tenant such space
(not exceeding in the Leased Premises) as Landlord may have available, until
the Leased Premises can be completed, at no charge to Tenant. The term of this
Lease shall be extended by such delay.
USE OF LEASED PREMISES
5.01 The Leased Premises may be used and occupied only for general
manufacturing and assembly, testing, warehousing and distribution, showroom and
offices and for no other purpose or purposes, without Landlord's prior written
consent. Landlord acknowledges that Xxxxxx's primarily business is
manufacturing of gaming devices. Tenant shall promptly comply at its sole
expense with all laws, ordinances, orders, and regulations affecting the Leased
Premises and their cleanliness, safety, occupation and use. Tenant shall not do
or permit anything to be done in or
6
about the Leased Premises that will in any way increase the fire insurance upon
the building. Tenant will not perform any act or carry on any practices that
may injure the building or be a nuisance or menace to tenants of adjoining
premises. Tenant shall not cause, maintain or permit any outside storage on or
about the Leased Premises, including pallets or other refuse. The rear loading
areas of the Tenant's unit must be clean and unobstructed.
5.02 Tenant shall, at Tenants sole cost and expense, comply fully with
all environmental laws and regulations, and all other legal requirements,
applicable to Tenant's operations at, on or within, or to Tenant's use and
occupancy of, the Leased Premises. Tenant shall not (either with or without
negligence) cause or permit the escape, disposal or release of any biologically
or chemically active or other hazardous substances, or materials. Tenant shall
not allow the storage or use of such substances or materials in any manner not
sanctioned by law or by the highest standards prevailing in the industry for
the storage and use of such substances or materials, nor allow to be brought
into the Project any such materials or substances except to use in the ordinary
course of Tenant's business, and then only after written notice is given to
Landlord of the identity of such substances or materials. Without limitation,
hazardous substances and materials shall include those described in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as amended, 42 U.S.C. Section 9601 et seq.; the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. Section 6901 et seq., any applicable state
or local laws and the regulations adopted under these acts. If any governmental
agency shall ever require testing to ascertain whether or not there has been
any release of hazardous materials by Tenant, then the reasonable costs thereof
shall be reimbursed by Tenant to Landlord upon demand as additional charges if
such requirement applies to the Leased Premises. In addition, Xxxxxx shall
execute affidavits, representations and the like from time to time at
Landlord's request concerning Xxxxxx's knowledge and belief regarding the
presence of hazardous substances or materials on the Leased Premises. In all
events, Tenant shall indemnify Landlord in the manner elsewhere provided in
this lease from any release of hazardous materials on the Leased Premises
occurring while Tenant is in possession, or elsewhere if caused by Tenant or
persons acting under Tenant. The within covenants shall survive the expiration
or earlier termination of the lease term.
5.03 Landlord hereby agrees to indemnify, defend and hold Tenant
harmless from and against any claim, action, damage or liability incurred by,
or filed or asserted against, Tenant, and arising out of the presence of
Hazardous Materials in, on, about, or underneath the Leased Premises and
resulting from the actions or omissions of (i) any parties in possession of the
Leased Premises prior to Tenant's possession, or (ii) Landlord or its servants,
employees, agents, representatives, contractors or invitees. Notwithstanding
anything in the foregoing to the contrary, Tenant shall have no liability to
Landlord or to any other party with respect to the presence of Hazardous
Materials in, on, about or underneath the Leased Premises unless directly
caused by the acts or omissions of Tenant, its servants, employees, agents,
representatives, contractors, or invitees.
UTILITIES
6.01 Landlord shall not be liable in the event of any interruption in
the supply of any utilities. Tenant agrees that it will not install any
equipment which will exceed or overload the capacity of any utility facilities
and that if any equipment installed by Tenant shall require additional utility
facilities, the same shall be installed by Tenant at Tenant's expense in
accordance with plans and specifications approved in writing by Landlord.
Tenant shall be solely responsible for and shall pay all charges for use or
consumption of sanitary sewer, water, gas, electricity and any other utility
services. In the event Landlord determines that it is advisable to separately
meter any utility services provided to the Leased Premises, landlord shall have
the right to install a sub-meter and bill Tenant for the actual cost thereof,
which shall be paid to Landlord within fifteen (15) days following billing.
ACCEPTANCE OF LEASED PREMISES
7.01 By entry hereunder, Xxxxxx acknowledges that it has examined the
Leased Premises and accepts the same as being in the condition called for by
this Lease, and as suited for the uses intended by Xxxxxx, subject to the
completion of tenant improvements as provided in Exhibit "B". Upon delivery of
possession of the Leased Premises to Tenant, Xxxxxx agrees to execute and
deliver to Landlord a Xxxxxx's Acceptance of Premises, in the form attached
hereto as Exhibit "C"
7
ALTERATIONS, MECHANICS' LIENS
8.01 Structural alterations (including moving any interior load
bearing walls) may not be made to the Leased Premises without prior written
consent of Landlord, and any alterations of the Leased Premises excepting
movable furniture and trade fixtures shall at Landlord's option, which option
shall be exercised at the time Landlord grants its consent, become part of the
realty and belong to Landlord.
8.02 Should Tenant desire to alter the Leased Premises and Landlord
gives written consent to such alterations, at Xxxxxxxx's option, Tenant shall
contract with a contractor approved by landlord for the construction of such
alterations.
8.03 Tenant may install trade fixtures, machinery or other trade
equipment in conformance with all applicable laws, statutes, ordinances, rules,
regulations, and the same may be removed upon the termination of this Lease
provided Tenant shall not be in default under any of the terms and conditions
of this Lease, and the Leased Premises are not damaged by such removal. Tenant
shall return the Leased Premises on the termination of this Lease in the same
condition as when rented to Tenant, reasonable wear and tear and casualty only
excepted. Tenant shall keep the Leased Premises, the building and property in
which the Leased Premises are situated free from any liens arising out of any
work performed for, materials furnished to, or obligations incurred by Tenant.
All such work provide for above, shall be done at such times and in such manner
as Landlord may from time to time designate. Tenant shall give Landlord written
notice five (5) days prior to employing any laborer or contractor to perform
work resulting in an alteration of the Leased Premises so that Landlord may
post a notice of non-responsibility.
QUIET CONDUCT/QUIET ENJOYMENT
9.01 Tenant shall not commit, or suffer any waste upon the Leased
Premises, or any nuisance, or other act or thing which may disturb the quiet
enjoyment of any other tenant in the Building or any building in the project in
which the Leased Premises are located.
9.02 So long as Tenant is not in default in the payment of rent, or
other charges or in the performance of any of the other terms, covenants, or
conditions of the Lease, Tenant shall not be disturbed by Landlord or anyone
claiming by, through or under Landlord in Tenant's possession, enjoyment, use
and occupancy of the Leased Premises during the original or any renewal term of
the Lease or any extension or modification thereof.
FIRE INSURANCE, HAZARDS
10.01 No use shall be made or permitted to be made of the Leased
Premises, nor acts done which might increase the existing rate of insurance
upon the building or cause the cancellation of-any insurance policy covering
the building, or any part thereof, nor shall Tenant sell, or permit to be kept,
used or sold, in or about the Leased Premises, any article which may be
prohibited by the Standard form of fire insurance policies. Tenant shall, at
its sole cost and expense, comply with any and all requirements pertaining to
the Leased Premises of any insurance organization or company, necessary for the
maintenance of reasonable fire and public liability insurance, covering the
Leased Premises, building and appurtenances.
10.02 Tenant shall maintain in full force and effect on all of its
inventory, fixtures and equipment in the Leased Premises a policy or policies
of fire and extended coverage insurance with standard coverage endorsement to
the extent of at least eighty percent (80%) of their insurable value. During
the term of this Lease the proceeds from any such policy or policies of
insurance shall be used for the repair or replacement of the fixtures, and
Landlord will sign all documents necessary or proper in connection with the
settlement of any claim or loss by Tenant. Landlord will not carry insurance on
Tenant's possessions. Tenant shall furnish Landlord with a certificate of such
policy within thirty (30) days of the commencement of this Lease, and whenever
required, shall satisfy Landlord that such policy is in full force and effect
8
LIABILITY INSURANCE
11.01 Tenant, at its own expense, shall provide and keep in force with
companies acceptable to Landlord public liability insurance for the benefit of
Landlord and Tenant jointly against liability for bodily injury and property
damage in the amount of not less than Three Million Dollars ($3,000,000.00) in
respect to injuries to or death of more than one person in any one occurrence,
in the amount of not less than One Million Dollars ($1,000,000.00) per
occurrence in respect to damage to property, such limits to be for any greater
amounts as may be reasonably indicated by circumstances from time to time
existing. Tenant shall furnish Landlord with a certificate of such policy
within thirty (30) days of the commencement date of this Lease and whenever
required shall satisfy Landlord that such policy is in full force and effect.
Such policy shall name Landlord as an additional insured and shall be primary
and non-contributing with any insurance carried by Landlord. The policy shall
contain a contractual liability endorsement. The policy shall further provide
that it shall not be canceled or altered without twenty (20) days prior written
notice to Landlord.
INDEMNIFICATION
12.01 Tenant shall indemnify and hold harmless Landlord against and
from any and all claims arising from Tenant's use of the Leased Premises (other
than those arising solely from negligence of Landlord or its agents or
employees), or the conduct of its business or from any activity, work, or thing
done, permitted or suffered by the Tenant in or about the Leased Premises, and
shall further indemnify and hold harmless Landlord against and from any and all
claims arising from any breach or default in the performance of any obligation
on Tenant's part to be performed under the terms of this Lease, or arising from
any act, neglect, fault or omission of the Tenant, or of its agents or
employees and from and against all costs, attorney's fees, expenses and
liabilities incurred in or about such claim or any action or proceeding brought
relative thereto and in case any action or proceeding be brought against
Landlord by reason of any such claim, Tenant upon notice from Landlord shall
defend the same at Tenant's expense by counsel chosen by Xxxxxx and who is
reasonably acceptable to Landlord. Tenant, as a material part of the
consideration to Landlord, hereby assumes all risk of damage to property or
injury to persons in or about the Leased Premises from any cause whatsoever
except that which is caused by the failure of Landlord to observe any of the
terms and conditions of this Lease where such failure, and Tenant hereby waives
all claims in respect thereof against Landlord.
12.02 Landlord shall indemnify Tenant and hold Tenant harmless against
and from all claims arising from the negligence or willful misconduct of
Landlord, its agents, employees or contractors, or breach of Lease by Landlord
with respect to the Leased Premises or the Project that is not insured against
or required to be insured against under the insurance policies Tenant is
required to maintain under this Lease
12.03 The obligations of Landlord and Tenant under this paragraph
arising by reason of any occurrence taking place during the term of his Lease
shall survive the termination or expiration of this Lease.
WAIVER OF CLAIMS
13.01 Tenant, as a material part of the consideration to be rendered
to Landlord, hereby waives all claims against landlord for damages to goods,
wares and merchandise in, upon or about the Leased Premises and for injury to
Tenant, its agents, employees, invitees, or third persons in or about the
Leased Premises from any cause arising at any time unless such damage is due to
Landlord's negligent act or omission and such damage is caused by an occurrence
which is not insured against or required to be insured against by Tenant under
this Lease. The parties acknowledge that it is not their intent to relieve
Landlord from liability to Tenant, but rather Tenant benefit from available
insurance coverage without subjecting Landlord to liability for losses that are
required to be insured against by Tenant under this Lease and without
subjecting Landlord to subrogation claims of any insurer.
REPAIRS
14.01 Tenant shall, at its sole cost, keep and maintain the Leased
Premises and appurtenances and every part thereof (excepting exterior walls and
roofs which Landlord agrees to
9
repair) including by way of illustration and not by way of limitation all
windows, and skylights, doors, any store front and the interior of the Leased
Premises, including all plumbing, heating, air conditioning, sewer, electrical
systems and all fixtures and all other similar equipment serving the Leased
Premises in good and sanitary order, condition, and repair. Tenant shall be
responsible for all pest control within the Leased Premises, including, but not
limited to, the eradication of any ants or termites should infestation be
observed during the term of the Lease. Tenant shall, at its sole cost, keep and
maintain all utilities, fixtures and mechanical equipment used by Tenant in
good order, condition and repair. All windows shall be washed and cleaned as
often as necessary to keep them clean and free from smudges and stains. In the
event Tenant fails to maintain the Leased Premises as required herein or fails
to commence repairs (requested by Landlord in writing) within thirty (30) days
after such request, or fails diligently to proceed thereafter to compete such
repairs, Landlord shall have the right in order to preserve the Leased Premises
or portion thereof, and/or the appearance thereof, to make such repairs or have
a contractor make such repairs and charge Tenant for the cost thereof as
additional rent, together with interest at the rate of twelve percent (12%) per
annum from the date of making such payments.
14.02 Landlord agrees to keep in good repair the roof, foundations,
and exterior walls of the Leased Premises except repairs rendered necessary by
the negligence of Tenant, its agents, employees or invitees. Landlord gives to
Tenant exclusive control of Leased Premises and shall be under no obligations
to inspect said Leased Premises. Tenant shall promptly report in writing to
Landlord any defective condition known to it's Production Manager or officers
which Landlord is required to repair, and Landlord shall move with reasonable
diligence to repair b item. Failure to report such defects shall make Tenant
responsible to Landlord for any additional liability incurred by Landlord by
reason of such defects.
14.03 Tenant shall obtain upon occupancy and keep current during the
lease term a service maintenance contract on the heating, ventilation and air
conditioning (HVAC) equipment serving the Leased Premises. The contract shall
be between Tenant and a dealer authorized company acceptable to Landlord, and
shall at a minimum provide for an equipment check and tune-up service each
spring and fall, and filter and lubrication service every three months. A copy
of said contract shall be provided to Landlord, as well as any modification,
extension, renewal or replacement thereof. Provided however, at Xxxxxxxx's sole
expense, Xxxxxxxx agrees to inspect the HVAC system in the Leased Premises to
insure it is in good working order at lease commencement and at its cost and
expense make any repairs to the HVAC system required during the first two (2)
years of the Lease term except any repairs necessary because of Xxxxxx's
negligent actions, omissions or misconduct.
14.04 After the first two (2) years of the Lease term, Landlord agrees
to repair, replace and correct any defects of any major component of the HVAC
system in excess of $700.00, provided that Landlord shall not have any
obligation to correct, repair or replace any major component caused by the
negligence or misconduct of Tenant, its agents, contractors, employees or
invitees. Upon any such replacement by Xxxxxxxx, Xxxxxx agrees to reimburse
Landlord for a fraction of the replacement cost of any such component equal to
the number of years remaining on the Lease divided by the useful life of the
HVAC component.
SIGNS, LANDSCAPING
15.01 Landlord shall have the right to control landscaping and Tenant
make no alterations or additions to the landscaping. Landlord shall have the
right to approve the placing of signs and the size and quality of the same.
Tenant shall have the right to place one (1) exterior sign on the Leased
Premises with the prior written consent of Landlord. Any signs not in
conformity with the Lease may be immediately removed by Landlord.
ENTRY BY LANDLORD
16.01 Tenant shall permit Landlord and Landlord's agents to enter the
Leased Premises at all reasonable times and upon reasonable notice except in
the case of an emergency for the purpose of inspecting the same or for the
purpose of maintaining the building, or for the purpose of making repairs,
alterations, or additions to any portion of the building, including the
erection and maintenance of such scaffolding, canopies, fences and props as may
be required, or for the purpose of posting notices of non-responsibility for
alterations, additions, or repairs, or for the purpose of showing the Leased
Premises to prospective tenants, or within the last six (6) months of the Lease
10
term placing upon the building any usual or ordinary "for sale" signs which
clearly indicate that it is only the real estate for sale, without any rebate
of rent and without any liability to Tenant for any loss of occupation or quiet
enjoyment of the Leased Premises thereby occasioned; and shall permit Landlord
at any time within six (6) months prior to the expiration of this Lease, to
place upon the Leased Premises any usual or ordinary "to let" or "to lease"
signs. For each of the aforesaid purposes, Landlord shall at all times have and
retain a key with which to unlock all of the exterior doors about the Leased
Premises.
TAXES AND INSURANCE INCREASE
17.01 Tenant shall pay before delinquency and all taxes, assessments,
license fees, and public charges levied, assessed, or imposed and which become
payable during the Lease upon Tenant's fixtures, furniture appliances and
personal property installed or located in the Leased Premises.
17.02 Tenant shall pay, as additional rental during the term of this
Lease and any extension or renewal thereof, the amount by which all taxes (as
herein defined) for each tax year exceeds all taxes for 1998. In the event the
Leased Premises are less than the area of the entire property assessed for such
taxes for any such tax year, then the tax for any such year applicable to the
Leased Premises shall be determined by proration on the basis that the rentable
floor area of the Leased Premises bears to the rentable floor area of the
entire property assessed. The term "taxes" shall include all ad valorem taxes,
special assessments, and governmental charges assessed against the Building or
the Land; and such term shall include any reasonable expenses, including fees
and disbursements of attorneys, tax consultants, arbitrators, appraisers,
experts and other witnesses, incurred by Landlord in contesting any taxes or
the assessed valuation of all or any part of the Building or the Land to the
extent of savings. If the final year of the lease term fails to coincide with
the tax year, then any excess for the tax year during which the term ends shall
be reduced by the pro rata part of such tax year beyond the lease term. The
agent's commission shall not apply to any such additional rental resulting from
the provisions of this paragraph.
17.03 Xxxxxx agrees to pay the amount for all taxes levied upon or
measured by the rent payable hereunder, whether as a so-called sales tax,
transaction privilege tax, excise tax, or otherwise (but no income taxes of
Landlord shall be payable by Xxxxxx). Such taxes shall be due and payable at
the same time as and in addition to each payment of rent.
17.04 Commencing in the year 1999 and during each remaining year of
the lease term or any extension or renewal thereof, in the event that the
insurance premiums payable by the Landlord for insurance coverage on the
property are increased, whether such increase in the valuation of the building,
or in the applicable rate of insurance, then Tenant agrees to pay Landlord as
additional rental, Xxxxxx's pro rata share of the increase in said insurance
premiums over the base amount paid in the year 1998. The term "insurance" shall
include all fire and extended coverage insurance on the Building and all
liability insurance coverage on the common areas of the Building, and the
grounds, sidewalks, driveways and parking areas on the Land together with such
other insurance coverages, including, but not limited to, rent interruption
insurance, as are from time to time obtained by Landlord. Tenant's pro rata
share shall be based on the square footage of the Leased Premises leased to
Tenant (as specified in paragraph 1.01 hereof) compared to the total square
footage of leasable space in the entire building. If during the final year of
the Lease, or any extension or renewal thereof, the term does not coincide with
the year upon which the insurance rate is determined, the increase in premiums
for the: portion of that year; shall be prorated according to the number of
months during which Tenant is in possession of the Leased Premises.
17.05 On or about January 1 of each calendar year during the term of
this Lease, Landlord shall provide Tenant with a good faith estimate of the
amount by which taxes and insurance will exceed the base amounts during such
calendar year. Tenant shall thereafter pay one-twelfth (1/12) of its pro rata
share of such increase at such time as its monthly installments of Base Rental
hereunder are due and payable. When the actual bills have been received by
Landlord, Landlord shall notify Tenant of the actual taxes and insurance for
such calendar year. If Tenant has paid more than it would have paid had the
actual bills been known Landlord shall credit such excess against the next
additional rent payments coming due; if Xxxxxx has not paid enough Tenant shall
pay the remainder to Landlord within fifteen (15) days following receipt of a
statement from Landlord.
11
17.06 Tenant may, within the respective times and in the manner
prescribed by law for such purposes, in its own name and behalf or, if
necessary or appropriate in order to perfect such petition, in the name and on
behalf of Landlord (subject to the provisions of paragraph 17.07 hereof),
petition for reduction of the assessed valuation of the Building and the Land,
claim a refund of real estate taxes or assessments or otherwise challenge the
amount, validity or applicability of any real estate tax or assessment
pertaining to the Leased Premises (a "Tax Protest"); provided that (a) Tenant
shall pay such tax or assessment under protest prior to delinquency, if such
Tax Protest does not suspend the collection thereof from any party, and (b) no
portion of the Leased Premises or any rentals payable hereunder or Landlord's
title or interest herein would be in any danger of being sold, forfeited,
interrupted or lost as a result of such Tax Protest. Tenant shall prosecute any
Tax Protest with due diligence and continuity. Tenant shall provide Landlord
with copies of any application, petition or other pleading filed in connection
with any Tax Protest before filing Landlord may join with Tenant in making any
such application, petition or other pleading, retain co-counsel, attend
hearings, present evidence and arguments, and generally participate in the
conduct of the tax Protest. If and to the extent that Xxxxxxxx is requested to
do so by Xxxxxx, Xxxxxxxx agrees to cooperate with Xxxxxx in good faith in
connection with any Tax Protest undertaken by Xxxxxx, provided Tenant promptly
reimburses Landlord for any expense in connection therewith. Subject to
Landlord's right to reimbursement as set forth below, Tenant shall be entitled
to receive and retain any refund of real estate taxes or assessments obtained
by Tenant, to the extent such tax or assessment was paid by Xxxxxx under this
Article 17. Nothing contained in this paragraph 17.06 shall limit or restrict
Landlord's right to undertake any Tax Protest with respect to the Leased
Premises; to the extent Landlord obtains any reduction in or refund of real
estate taxes or assessments, Landlord's costs of such Tax Protest shall be
additional rent payable by Tenant to Landlord within ten (10) days of Tenant's
receipt of Landlord's invoice therefore, but Landlord shall not be entitled to
reimbursement by Tenant for the costs of such Tax Protest in excess of any
reduction and/or refund of such real estate taxes or assessments so obtained.
17.07 In the event Tenant undertakes or files any Tax Protest in the
name of Landlord, Tenant shall promptly provide Landlord written notice
thereof, and Tenant acknowledges that Xxxxxx's use of Xxxxxxxx's name shall be
subject to the indemnification of Landlord contained in Article 12 hereof.
Tenant shall give Landlord five (5) days advance written notice of any such use
of Landlord's name.
17.08 The provisions of paragraphs 17.01, 17.02, 17.03, 17.04, 17.05,
17.06 and 17.07 hereof shall survive the expiration or earlier termination of
this Lease.
ABANDONMENT
18.01 Tenant shall not abandon the Leased Premises at any time during
the term of this Lease; and if Tenant shall abandon or surrender the Leased
Premises, or be dispossessed by process of law, or otherwise, any personal
property belonging to Xxxxxx and left on the Leased Premises shall, at the
option of the Landlord, be deemed abandoned and be and become the property of
Landlord.
18.02 Tenant shall have the right to vacate as long as (a) rental is
kept current, (b) security and maintenance is kept at acceptable levels and (c)
as long as any insurance rider required in the State of Georgia which maintains
the required protection is provided by Tenant.
DESTRUCTION
19.01 If the Leased premises or any portion thereof are destroyed by
storm, fire, lightning, earthquake or other casualty, Tenant shall immediately
notify Landlord. In the event the Leased Premises cannot, in Landlord's
reasonable judgment, be restored within one hundred twenty (120) days of the
date of such damage or destruction, this Lease shall terminate as of the date
of destruction, and all rent and other sums payable by Tenant hereunder shall
be accounted for as between Landlord and Tenant as of the date of such
destruction. Landlord shall notify Tenant within thirty (30) days of the date
of the damage or destruction whether the Leased Premises can be restored within
one hundred twenty (120) days. If this Lease is not terminated as provided in
this paragraph, Landlord shall, to the extent insurance proceeds payable on
account of such damage or destruction are available to Landlord (with the
excess proceeds belonging to Landlord), within a reasonable time, repair,
restore, rebuild, reconstruct or replace the damaged or destroyed portion of
the Leased Premises to a condition substantially similar to the condition which
existed prior to the
12
damage or destruction. Provided, however, Landlord shall only be required to
repair, restore, rebuild, reconstruct and replace the Landlord's Work shown on
Exhibit "B", and Tenant shall, at its sole cost and expense, upon completion of
the Landlord's Work, repair, restore, rebuild, reconstruct and replace, as
required, any and all improvements installed in the Leased Premises by Tenant
and all trade fixtures, personal property, inventory, signs and other contents
in the Leased Premises, and all other repairs not specifically required of
Landlord hereunder; in a manner and to at least the condition existing prior to
the damage to the extent of Tenant's insurance proceeds. Tenant's obligation to
pay Base Rent shall xxxxx until Landlord has repaired, restored, rebuilt
reconstructed or replaced the Leased Premises, as required herein, proportion
to the part of the Leased Premises which are unusable by Tenant. If the damage
or destruction is due to the act, neglect, fault or omission of Tenant; there
shall be no rent abatement except to the extent of rent loss insurance. In the
event of any dispute between Xxxxxxxx and Tenant relative to the provisions of
this paragraph, they may each select an arbitrator, the two arbitrators so
selected shall select a third arbitrator and the three arbitrators so selected
shall hear and determine the controversy and their decision thereon shall be
final and binding on both Landlord and Tenant who shall bear the cost of such
arbitration equally between them. Landlord shall not be required to repair any
property installed in the Leased Premises by Tenant. Tenant waives any right
under applicable laws inconsistent with the terms of this paragraph and in the
event of a destruction agrees to accept any offer by Landlord to provide Tenant
with comparable space within the project in which the Leased Premises are
located on the same terms as this Lease. Notwithstanding the provisions of this
paragraph, if any such damage or destruction occurs within the final two (2)
years of the term hereof, then Landlord, in its sole discretion, may, without
regard to the aforesaid 120-day period, terminate this Lease by written notice
to Tenant.
ASSIGNMENT AND SUBLETTING
20.01 Landlord shall have the right to transfer and assign, in whole
or in part its rights and obligations in the building and property that are the
subject of this Lease. Tenant shall not assign this Lease or sublet all or any
part of the Leased Premises without the prior written consent of the Landlord,
which consent shall not be unreasonably withheld, conditioned or delayed. In
the event of any assignment or subletting, Tenant shall nevertheless at all
times, remain fully responsible and liable for the payment of the rent and for
compliance with all of its other obligations under the terms, provisions and
covenants of this Lease. If all or any part of the Leased Premises are then
assigned or sublet, Landlord in addition to any other remedies provided by this
Lease or provided by law, may at its option, collect directly from the assignee
or subtenant all rents becoming due to Tenant by reason of the assignment or
sublease, and Landlord shall have a security interest in all properties on the
Leased Premises to secure payment of such sums. Any collection directly by
Landlord from the assignee or subtenant shall not be construed to constitute a
novation or a release of Tenant from the further performance of its obligations
under this Lease. In the event that Tenant sublets the Leased Premises or any
part thereof, or assigns this Lease and at any time receives rent and/or other
consideration which exceeds that which Tenant would at that time be obligated
to pay to Landlord, Tenant shall pay to Landlord 100% of the gross excess in
such rent less reasonable costs of subleasing (including commissions,
advertising costs, legal costs, and tenant improvement costs) as such rent is
received by Tenant and 100% of any other consideration received by Tenant from
such subtenant in connection with such sublease or, in the case of any
assignment of this Lease by Xxxxxx, Landlord shall receive 100% of any
consideration paid to Tenant by such assignee in connection with such
assignment. In addition, should Xxxxxxxx agree to an assignment or sublease
agreement, Tenant will pay to Landlord on demand the sum of $500.00 to
partially reimburse Landlord for its costs, including reasonable attorney's
fees, incurred in connection with processing such assignment or subletting
request.
INSOLVENCY OF TENANT
21.01 Either (a) the appointment of a trustee to take possession of
all or substantially all of the assets of Tenant, or (b) a general assignment
by Tenant for the benefit of creditors, or (c) any action taken or suffered by
Tenant under any insolvency or bankruptcy act shall, if any such appointments,
assignments or action continues for a period of thirty (30) days, constitute a
breach of this Lease by Xxxxxx, and Landlord may at its election without
notice, terminate this Lease and in that event be entitled to immediate
possession of the Leased Premises and damages as provided below.
13
BREACH BY TENANT
22.01 In the event of a monetary default by Tenant, which is not cured
within ten (10) days of receipt of written notice by Tenant of such default or
in the event of a nonmonetary default by Tenant which is not cured within thirty
(30) days of receipt of written notice by Tenant of such default, Landlord in
addition to any and all other rights or remedies that it may have hereunder, at
law or in equity shall have the right to either terminate this Lease or from
time to time, without terminating this Lease relet the Leased Premises or any
part thereof for the account and in the name of Tenant or otherwise, for any
such term or terms and conditions as Landlord in its sole discretion may deem
advisable with the right to make reasonable alterations and repairs to the
Leased Premises. Tenant shall pay to Landlord, as soon as ascertained, the costs
and expenses incurred by Landlord in such reletting or in making such reasonable
alterations and repairs. Should such rentals received from time to time from
such reletting during any month be less than that agreed to be paid during that
month by Tenant hereunder, the Tenant shall pay such deficiency to Landlord.
Such deficiency shall be calculated and paid monthly.
22.02 No such reletting of the Leased Premises by Landlord shall be
construed as an election on its part to terminate this Lease unless a notice of
such intention be given to Tenant or unless the termination thereof decreed by a
court of competent jurisdiction. Notwithstanding any such reletting without
termination, Landlord may immediately or at any time thereafter terminate this
Lease and this Lease shall be deemed to have been terminated upon receipt by
Tenant of notice of such termination; upon such termination Landlord shall
recover from Tenant all damages that Landlord may suffer by reason of such
termination including, without limitation, all arrearages in rentals, costs,
charges, additional rentals, and reimbursements, the cost (including court costs
and attorneys' fees actually incurred) of recovering possession of the Leased
Premises, the actual or estimated (as reasonably estimated by Landlord) cost of
any alteration of or repair to the Leased Premises which is necessary or proper
to prepare the same for reletting and, in addition thereto, Landlord shall have
and recover from Tenant the difference between the present value (discounted at
a rate per annum equal to the discount rate of the Federal Reserve Bank of
Atlanta at the time the Event of Default occurs) of the rental to be paid by
Tenant for the remainder of the lease term, and the present value (discounted at
the same rate) of the rental for the Leased Premises for the remainder of the
lease term, taking into account the cost, time and other factors necessary to
relet the Leased Premises; provided, however that such payment shall not
constitute a penalty or forfeiture, but shall constitute full liquidated damages
due to Landlord as a result of Tenant's default Landlord and Tenant acknowledge
that Xxxxxxxx's actual damages in the event of a default by Tenant under this
Lease will be difficult to ascertain, and that the liquidated damages provided
above represent the parties' best estimate of such damages. The parties
expressly acknowledge that the foregoing liquidated damages are intended not as
a penalty, but as full liquidated damages, as permitted by Section 1367 of the
Official Code of Ga. Annotated.
ATTORNEY'S FEES
23.01 If Landlord and Tenant litigate any provision of this Lease or
the subject matter of this Lease, the unsuccessful litigant will pay to the
successful litigant all costs and expenses, including reasonable attorneys' fees
and court costs, incurred by the successful litigant at trial and on any appeal.
CONDEMNATION
24.01 If, at any time during the term of this Lease, title to the
entire Leased Premises should become vested in a public quasi-public authority
by virtue of the exercise of expropriation; appropriation condemnation or other
power in the nature of eminent domain, or by voluntary transfer from the owner
of the Leased Premises under threat of such a taking then this Lease shall
terminate as of the time of such vesting of title, after which neither party
shall be further obligated to the other except for occurrence antedating such
taking. The same results shall follow if less than the entire Leased Premises be
thus taken, or transferred in lieu of such a taking, but to such extent that it
would be legally and commercially impossible for Tenant to occupy the portion of
the Leased Premises remaining, and impossible for Tenant to reasonably conduct
his trade or business therein.
24.02 Should there be such a partial taking or transfer in lieu
thereof, but not to such an extent as to make such continued occupancy and
operation by Tenant an impossibility, then this
14
Lease shall continue on all of its same terms and conditions subject only to an
equitable reduction in rent proportionate to such taking.
24.03 In the event of any such taking or transfer, whether of the
entire Leased Premises, or a portion thereof, it is expressly agreed and
understood that all sums awarded, allowed or received in connection therewith
shall belong to Landlord, and any rights otherwise vested in Tenant are hereby
assigned to Landlord, and Tenant shall have no interest in or claim to any such
sums or any portion thereof, whether the same be for the taking of the property
or for damages or otherwise. Nothing herein shall be construed, however, to
preclude Tenant from prosecuting any claim directly against the condemning
authority for loss of business, moving expenses, damage to, and cost of, trade
fixtures, furniture and other personal property belonging to Xxxxxx
NOTICES
25.01 All notices, statements, demands, requests, consents, approvals,
authorization, offers, agreements, appointments or designations under this
Lease by either party to the other shall be in writing and shall be
sufficiently given and served upon the other party, (i) by depositing same in
the United States mail, addressed to the party to be notified, postage prepaid
and registered or certified with return receipt requested; (ii) by recognized
overnight, third party prepaid courier service (such as Federal Express),
requiring signed receipt; (iii) by delivering the same in person to such party;
or (iv) by prepaid telegram, telecopy or telex with delivery of an original
copy of any such notice delivered pursuant to (ii) or (iii) above to be
received no later than the next business day. Notice personally delivered or
sent by courier service, telegram, telecopy or telex shall be effective upon
receipt. Any notice mailed in the foregoing manner as set forth in (i) above
shall be effective three (3) business days after its deposit in the United
States mail. Either party may change its address for notices by giving notice
to the other as provided above. For purposes of notice, the addresses of the
parties shall be as follows:
(a) To Tenant at the Leased Premises, and to 0000 Xxxxxx Xxxx, Xxxx,
Xxxx 00000, Attention: Xx Xxxxxxx;
(b) To Landlord, addressed to Landlord at 0000 Xxxx Xxxxx, Xxxxxxxx,
Xxxxxxx 00000, with a copy to such other place as Landlord may
from time to time designate by notice to Tenant.
WAIVER
26.01 The waiver by Landlord of any breach of any term, covenant, or
condition herein contained shall not be deemed to be a waiver of such term,
covenant, or condition or any subsequent breach of the same or any other term,
covenant, or condition herein contained. The subsequent acceptance of rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding
breach by Tenant of any terms covenant, or condition of this Lease, other than
the failure of Tenant to pay the particular rental so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
rent.
EFFECT OF HOLDING OVER
27.01 If Tenant should remain in possession of the Leased Premises
after the expiration of the lease term and without executing a new lease, then
such holding over shall be construed as a tenancy from month to month, subject
to all the conditions, provisions, and obligations of this Lease insofar as the
same are applicable to a month to month tenancy, except that the rent payable
pursuant to subparagraph 3.01 hereof shall be 125% of the rent payable pursuant
to subparagraph 3.01 for the first three (3) months after the Lease expiration,
and 150% of the rent payable pursuant to subparagraph 3.01 after the first
three (3) months after the Lease expiration up to a maximum of six (6) months.
SUBORDINATION
28.01 This Lease, at Landlord's option, shall be subordinate to any
first priority mortgage, first priority deed of trust, or first priority
security deed now or hereafter placed upon the real property of which the
Leased Premises are a part and to any and all advances made on the security
thereof and to all renewals, modifications, consolidations, replacements and
extensions thereof;
15
provided that Landlord shall use all reasonable efforts to obtain a
subordination, non-disturbance and attornment agreement from the current
mortgagee and that any future mortgagee shall execute a subordination,
non-disturbance and attornment agreement in a form similar to that attached as
Exhibit "D".
28.02 Xxxxxx agrees to execute any documents required to effectuate
such subordination or to make this Lease prior to the lien of any such
mortgage, deed of trust, or security deed, as the case may be, including
specifically subordination, non-disturbance and attornment agreement in the
form hereto attached as Exhibit "D", and failing to do so within ten (10) days
after written demand, does hereby make, constitute and irrevocably appoint
Landlord as Xxxxxx's attorney in fact and in Xxxxxx's name, place and stead, to
do so.
ESTOPPEL CERTIFICATE
29.01 Upon ten (10) days notice from Landlord to Tenant, Tenant shall
deliver a certificate dated as of the first day of the calendar month in which
such notice is received, executed by an appropriate officer, partner or
individual, in the form as Landlord may require and stating but not limited to
the following: (I) the commencement date of this Lease; (ii) the space occupied
by Tenant hereunder; (iii) the expiration date hereof; (iv) a description of
any renewal or expansion options; (v) the amount of rental currently and
actually paid by Tenant under this Lease; (vi) the nature of any default of
claimed default hereunder by Xxxxxxxx and (vii) that Tenant is not in default
hereunder nor has any event occurred which with the passage of time or the
giving of notice would become a default by Tenant hereunder.
PARKING
30.01 Tenant shall be entitled to the exclusive use of one hundred
twelve (112) parking spaces as shown in Exhibit "F". There will be no assigned
parking unless Landlord, in its sole discretion may deem advisable. Xxxxxx
agrees to park all Tenant's trucks in the parking spaces provided at the rear
of the building. "Parking" as used herein means the use by Tenants employees,
its visitors, invitees, and customers for the parking of motor vehicles for
such periods of time as are reasonably necessary in connection with use of
and/or to the Leased Premises. No vehicle may be repaired or serviced in the
parking area and any vehicle deemed abandoned by Landlord will be towed from
the project and all costs therein shall be borne by the Tenant. All driveways,
ingress and egress, and all parking spaces are for the joint use of all
tenants. No area outside of the Leased Premises shall be used by Tenant for
storage without Landlord's prior written permission. There shall be no parking
permitted on any of the streets or roadways located in Gwinnett Park.
MORTGAGE PROTECTION
31.01 In the event of any default on the part of landlord, Tenant will
give notice by registered or certified mail to any beneficiary of a deed or
trust or holder of a security deed or mortgage covering the Leased Premises
whose address shall have been furnished it, and shall offer such beneficiary or
holder a reasonable opportunity to cure the default, including time to obtain
possession of the Leased Premises by power of sale or a judicial foreclosure,
if such should prove necessary to effect a cure (but no more than 90 days).
PROTECTIVE COVENANTS
32.01 This Lease is subject to the Protective Covenants of Gwinnett
Park, and to such rules and regulations as may hereafter be adopted and
promulgated. In addition, Xxxxxx shall comply with all covenants, restrictions
and other matters of record in the deed records of the county in which the
Leased Premises are located which affect or encumber the Leased Premises, the
Building or the Land.
RELOCATION
33.01 Intentionally deleted.
BROKERAGE COMMISSIONS
34.01 Tenants Agent and Xxxxxxxx's Agent (collectively, "Agent") shall
each be entitled to
16
receive a commission in the amounts, and upon the terms and conditions,
contained in a commission agreement between Landlord and such parties. Landlord
shall indemnify and hold harmless Tenant from any costs associated with such
commissions.
34.02 Tenant warrants and represents to Landlord that, other than
Agent, no other party is entitled, as a result of the actions of Tenant, to a
commission or other fee resulting from the execution of this Lease; and in the
event Tenant extends or renews this Lease, or expands the Leased Premises, and
Xxxxxx's Agent is entitled to a commission under the above referenced commission
agreement, Tenant shall pay all commissions and fees payable to any party (other
than Xxxxxx's Agent) engaged by Xxxxxx to represent Tenant in connection
therewith. Landlord warrants and represents to Tenant that, except as set forth
above, no other party is entitled, as a result of the actions of Landlord, to a
commission or other fee resulting from the execution of this Lease. Landlord and
Xxxxxx agree to indemnify and hold each other harmless from any loss, cost,
damage or expense (including reasonable attorneys' fees) incurred by the
nonindemnifying party as a result of the untruth or incorrectness of the
foregoing warranty and representation, or failure to comply with the provisions
of this subparagraph.
34.03 Tenant - Agent is representing Tenant in connection with this
Lease, and is not representing Landlord. Landlord's Agent, or employees of
Landlord or its affiliates, are representing Landlord and are not representing
Tenant.
34.04 The parties acknowledge that certain officers, directors,
shareholders, or partners of Landlord or its general partner(s), are licensed
real estate brokers and/or salesmen under the laws of the State of Georgia.
Tenant consents to such parties acting in such dual capacities.
MISCELLANEOUS PROVISIONS
A. Whenever the singular number is used in this Lease and when required
by the context, the same shall include the plural, and the masculine gender
shall include the feminine and neuter genders, and the word "person" shall
include corporation, firm or association. If there be more than one tenant, the
obligations imposed upon Tenant under this Lease shall be joint and several.
B. The headlines or titles to paragraphs of this Lease are for
convenience only and shall have no effect upon the construction or
interpretation of any part of this Lease.
C. This instrument contains all of the agreements and conditions made
between the parties to this Lease and may not be modified orally or in any
other manner than by agreement in writing signed by all parties to this Lease.
D. Where the consent of a party is required, such consent will not be
unreasonably withheld or delayed.
E. This Lease shall create the relationship of Landlord and Tenant
between Landlord and Tenant; no estate shall pass out of Landlord; Xxxxxx has
only a usufruct, not subject to levy and/or sale and not assignable by Xxxxxx
except as provided in paragraph 20.01 hereof.
F. Except as otherwise expressly stated; each payment required to be
made by Tenant shall be in addition to and not in substitution for other
payments to be made by Tenant.
G. All covenants and agreements to be performed by Tenant under any of
the terms of this Lease shall be performed by Tenant at Tenant's sole cost and
expense and without any abatement of rent.
H. No payment by Tenant or receipt by Landlord of a lesser amount than
any installment or payment of rent due shall be deemed to be other than on
account of the amount due, and no endorsement or statement on any check or
payment of rent shall be deemed an accord and satisfaction. Landlord may accept
such check or payment without prejudice to Landlord's right to recover the
balance of such installment or payment of rent, or pursue any other remedies
available to Landlord.
I. Subject to paragraph 20, the terms and provisions of this Lease
shall be binding upon and inure to the benefit of the heirs, executors,
administrators, successors, and assigns of Landlord and
17
Tenant. In the event of any conveyance by Landlord of its interest in and to
the Leased Premises, the Building and/or the Land, all obligations, except for
repayment of Tenant's security deposit, under this Lease of the conveying party
shall cease and Tenant shall thereafter look solely to the party to whom the
Leased Premises were conveyed for performance of all of Landlord's duties and
obligations under this Lease.
X. Xxxxxx acknowledges and agrees that Landlord shall not provide
guards or other security protection for the Leased Premises and that any and
all security protection shall be the sole responsibility of Tenant.
K. This Lease shall be governed by Georgia law.
L. Time is of the essence of each term and provision of this Lease.
M. Tenant shall not record this Lease or a memorandum thereof without
the written consent of Landlord. Upon the request of Landlord, Tenant shall
join in the execution of a memorandum or so-called "short-form" of this Lease
for the purpose of recordation. Said memorandum or short form of this Lease
shall describe the parties, the Leased Premises and the lease term, and shall
incorporate this Lease by reference.
N. Landlord's liability for performance of its obligations under the
terms of this Lease shall be limited to its interest in the Leased Premises
IN WITNESS WHEREOF, the parties hereto who are individuals have set
their hands and seals, and the parties who are corporations have caused this
instrument to be duly executed by its proper officers and its corporate seal to
be affixed, as of the day and year first above written.
Signed, sealed and delivered LANDLORD:
as to Landlord, in the WEEKS REALTY, L.P.
presence of: a Georgia limited partnership
---------------------------- By: Weeks GP Holdings, Inc.
A Georgia corporation
Its sole general partner
---------------------------- ----------------------------------------
Notary Public Name:
Its:
Signed, sealed and delivered TENANT:
As to Tenant, in the presence
Of: LEISURE TIME TECHNOLOGY,
INC.
By:
-------------------------- -------------------------------------
Name:
-----------------------------------
Its:
-------------------------- ------------------------------------
Notary Public
ATTEST:
By:
-------------------------------------
(Corporate Seal) Name:
-----------------------------------
Its:
------------------------------------
18
EXHIBIT "D"
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of the___ day of ___________, 19__ between
_______________________, with offices at ______________________________
("Tenant") and ____________________________________(herein, together with its
successors, transferees and assigns. the "Mortgagee");
WITNESSETH:
WHEREAS, Mortgagee is about to or has heretofore granted to
__________________ , a Georgia limited partnership (the "owner") a first
mortgage loan, which loan is secured by a security deed (herein "Mortgage")
dated as of ____________ 199__ and duly recorded on ______________, 199__ in
the land records of Gwinnett County, Georgia and
WHEREAS, the Mortgage is to be a first and prior lien upon the Owner's
fee estate in the real property described in Exhibit "A" annexed hereto
("Mortgaged Premises"); and
WHEREAS, Tenant is occupying a portion of the Mortgaged Premises under
a lease dated as of ________________ ,199__ in which Owner is Landlord (the
"Lease") covering that portion of the Mortgaged Premises therein more
particularly described (the "Leased Premises"); and
WHEREAS, Tenant desires to be assured of its continued and undisturbed
occupancy of the Leased Premises should the Mortgage be foreclosed or the
Mortgaged Premises sold pursuant to any power of' sale contained therein and
Mortgagee is agreeable thereto.
NOW, THEREFORE, in consideration of .the mutual covenants contained in
this Agreement and in further consideration of the sum of ONE DOLLAR ($1.00)
each to the other in hand paid, the receipt whereof is hereby acknowledged,
Tenant and Mortgagee mutually covenant and agree as follows:
FIRST: The Lease and all of Tenant's rights, interest and estate
therein and thereunder are hereby made subject and subordinate to the lien of
the Mortgage and to any extensions, renewals, replacements, modifications,
additions or consolidations thereof and to all rights, title and interest of
Mortgagee and its successors and assigns therein and thereunder.
SECOND: In the event, however, proceedings shall ever be instituted by
Mortgagee to foreclose or liquidate the Mortgage, the Tenant's possession of
its leased portion of the Mortgaged Premises shall not be disturbed by the
foreclosure proceedings and the Mortgaged Premises shall be sold at any
foreclosure sale subject to Tenant's possession on condition that:
(a) there shall be, at the time of commencement of foreclosure
proceedings, as well as all subsequent times, no default by Xxxxxx in the due
and timely observance and performance of any covenant and agreement in the
Lease to be observed and performed by Xxxxxx; and
(b) the Tenant shall not have entered into any agreement modifying any
term, condition or agreement of the Mortgagee-approved Lease without the prior
written consent of Mortgagee.
THIRD: Tenant shall attorn to Mortgagee while Mortgagee is in
possession of the Mortgaged Premises, or to a Receiver appointed in any action
or proceeding to foreclose the Mortgage. In the event of the completion of
foreclosure proceedings and sale of the Mortgaged Premises or in the event the
Mortgagee should otherwise acquire possession of the Mortgaged Premises, the
Tenant will promptly upon demand attorn to the purchaser at the foreclosure
sale or to the Mortgagee, as the case may be, and will recognize such purchaser
or the Mortgagee as the Tenant's landlord. The Tenant agrees to execute and
deliver, at any time and from time to time, upon the request of the Mortgagee
or the purchaser at the foreclosure sale, as the case may be, any instrument
which may be necessary or appropriate to such successor landlord to evidence
such attornment The Tenant shall, upon demand of the Mortgagee or any Receiver
or purchaser at the foreclosure sale, pay to the Mortgagee or to such Receiver
or purchaser, as the case may be, all rental monies then due or as they
thereafter become due.
19
FOURTH: Upon the attornment provided for in preceding Paragraph THIRD
the Tenant's occupancy shall thereafter be in full force and effect as under a
direct Lease between Mortgagee, the Receiver or the purchaser at the
foreclosure sale, as the case may be, and Tenant. It is specifically understood
and agreed that Mortgagee or any such Receiver or purchaser shall not be:
(a) liable for any act, omission, negligence or default of any prior
landlord, or
(b) subject to any offsets, claims or defenses which Xxxxxx might have
against any prior landlord; or
(c) bound by any rent or additional rent which Tenant might have paid
for more than one month in advance to any prior landlord; or
(d) bound by any amendment or modification of the Lease made without
the prior written consent of the Mortgagee.
FIFTH: On and after the date Tenant in good standing attorns to
Mortgagee or any Receiver or subsequent owner in pursuance of its agreement
herein set forth, Mortgagee, the Receiver or subsequent owner will undertake
and perform all subsequent obligations of the Landlord as set forth in the
Lease for the benefit of and undisturbed occupancy of Tenant under the Lease.
SIXTH: Xxxxxx agrees it will not amend, modify nor abridge the Lease
in any way, nor cancel or surrender the same without prior written approval of
the Mortgagee other than by reason of a continued uncured material default of
the landlord under the Lease, nor will the Lease ever merge into the fee in the
event that Mortgagee acquires fee title to the Mortgaged Premises.
SEVENTH: Any notices or other communication to be given hereunder by
either party shall be in writing and shall be deemed to have been sufficiently
given or served for all purposes if sent by registered or certified mail with
return receipt requested to the other part hereto at its address above stated
or such other address of which written notification has been timely given to
the other party.
EIGHTH: Mortgagee has and shall have the continuing right to execute
and record in the Land Records of Gwinnett County, Georgia at any time, in its
unilateral discretion, a Declaration of Subordination for the purpose of
thereby subordinating its rights, title and interest in and under the Mortgage
to the rights, title and interest of Tenant under the Lease. Such Declaration
of Subordination shall, at Mortgagee's election, operate, function and be in
full force and effect for whatever period of time Mortgagee declares therein
that it shall be in force not exceeding the term of the Lease and any
extensions thereof and the said Declaration may be voided unilaterally by
Mortgagee when it so elects.
NINTH: Tenant waives any and all rights it may have to execute and
record after the date hereof any document purporting to again or further
subordinate its right, title or interest under the Lease to the lien of either
the Mortgage or any other mortgage or deed of trust or any ground lease or any
agreement modifying or amending the Mortgage except with the written consent of
Mortgagee.
TENTH: This Agreement cannot be changed orally but only in writing
signed by both parties hereto.
ELEVENTH: This Agreement may be recorded by either party at its own
expense in the Land Records of Gwinnett County, Georgia whenever, in its sole
discretion, either party elects so to do.
TWELFTH: All of the terms, covenants and conditions hereof shall run
with the Mortgaged Premises and shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns.
20
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, acknowledged and delivered the day and year first above
written.
SIGNED, SEALED AND DELIVERED TENANT:
In the presence of:
----------------------------- ----------------------------------
-----------------------------
MORTGAGEE:
----------------------------- ----------------------------------
-----------------------------
The undersigned Owner of the leased and mortgaged premises hereby
consents to the foregoing Agreement and agrees to be bound by and subject to
the terms thereof.
By:
-------------------------------
21
EXHIBIT "E"
SPECIAL STIPULATIONS
Option to purchase:
(1) Landlord hereby grants to Tenant or affiliates, shareholders; or offices
the option to purchase the Leased Premises in accordance with this Exhibit "E"
(the "Option"). The Option shall be exercisable only at least three (3) months
prior to the last day of the second year of the Lease term with closing to
occur on the last day of the second year of the Lease term (the "First Option")
or at least six (6) months prior to the forty-second (42nd) month of the Lease
term (the "Second Option"). Tenant shall have the right to exercise the option
by delivering to Landlord written notice of such exercise (the "Exercise
Letter") at least three (3) months prior to the last day of the second year of
the Lease term or at least six (6) months prior to the forty-second (42nd)
month of the Lease term. Simultaneously with the delivery to landlord of the
Exercise Letter, and as a condition to the effective exercise thereof, Tenant
shall deliver to Landlord xxxxxxx money in the amount of One Hundred Thousand
and 00/100 Dollars ($100,000.00). If Tenant fails to exercise the First Option
by delivering the Exercise Letter to Landlord at least three (3) months prior
to the last day of the second year of the Lease term or for the Second Option
at least six (6) months prior to the forty-second (42nd) month of the Lease
term, then the Option shall terminate and be null and void. In addition, the
Option (and all rights of Tenant to purchase the Leased Premises) shall
terminate upon any termination of this Lease at any time prior to a Closing,
whether or not the Option has been exercised prior to the date of termination,
including any termination resulting from an uncured Event of Default by Tenant
under this Lease.
(2) The closing of the purchase and sale (the "Closing") shall be held in
Atlanta, Georgia, at a place, time and on a date designated by Landlord by
written notice to Tenant but shall be within ninety (90) days, in the event of
the First Option, and within six (6) months in the event of the Second Option
from the delivery of the Exercise Letter (provided in either case that if such
day is a Saturday, Sunday or legal holiday, the date of Closing shall be the
next preceding business day). In the event that Xxxxxx has exercised the
Option, but the Closing fails to occur on or before the required date of
Closing (other than as a result of Landlord's default) then the Option shall
terminate.
(3) If the Closing occurs prior to the last day of the second year of the Lease
terms then the purchase price for the Leased Premises to be paid by Tenant: to
Landlord at the Closing shall be Two Million Five Hundred Sixty-five Thousand
Dollars ($2,565,000.00) plus (ii) all sums of money owed by Tenant to Landlord
under this Lease or otherwise but not previously paid up to the date of closing
less (iii) the security deposit paid by Xxxxxx.
(4) If the Tenant exercises the Second Option, then the purchase price for the
Leased Premises to be paid by Tenant to Landlord at the Closing shall be the
Fair Market Value of the Leased Premises (as defined below) plus (ii) all sums
of money owed by Tenant to Landlord under this Lease or otherwise but not
previously paid up to the date of closing, less (iii) the security deposit paid
by Xxxxxx. The purchase price shall be paid in cash at closing. Landlord shall
pay recording fees for title release documents, the State of Georgia transfer
tax, and Landlord's attorneys' fees. Tenant shall all other recording costs and
Xxxxxx's attorneys' fees. No commission shall be payable in connection with
such sale. The Fair Market Value of the Leased Premises shall mean the price a
willing sell would accept and a willing purchaser would pay for the Leased
Premises and shall be determined as follows:
(a) Landlord and Tenant will have fifteen (15) days after Landlord
receives the Exercise Letter within which to agree on the Fair Market Value of
the Leased Premises. If they agree on the Fair Market Value within fifteen (15)
days, such value shall be the Purchase Price.
(b) If they are unable to agree on the Fair Market Value within
fifteen (15) days, then the Fair Market Value of the Leased Premises, stall be
determined in accordance with paragraph (c) below.
(c) Within seven (7) days after the expiration of the fifteen (15) day
period set forth in paragraph (b) above, Landlord and Tenant will each appoint
a real estate appraiser to appraise the Fair Market Value of the Leased
Premises. The two appraisers will meet promptly and attempt to set the Pair
Market Value of the Leased Premises. If they are unable to agree within thirty
(30)
22
days, they will select a third appraiser within ten (10) days to set the Fair
Market Value of the Leased Premises. Landlord and Tenant will bear one-half
(1/2) of the cost of appointing the third appraiser and of paying the third
appraiser's fee.
(d) Within thirty (30) days after the selection of the third
appraiser, a majority of the appraisers will set the Fair Market Value of the
Leased Premises. If a majority of the appraisers are unable to set the Fair
Market Value of the Leased Premises within thirty (30) days after selection of
the third appraiser, the three appraisals will be averaged and the average will
be the Fair Market Value of the Leased Premises.
(5) Tenant shall have a period of sixty (60) days from the date of the Exercise
Letter of either Option to inspect the Leased Premises and to obtain a title
commitment survey and environmental report to determine that the condition of
the title, environmental status and survey do not adversely affect Tenant's
ownership or use of the Leased Premises. In the event Tenant determines that
there is an adverse impact on Tenant's use or ownership of the Leased Premises,
Tenant shall have the option to terminate the Purchase Option and receive a
return of all of its xxxxxxx money and all of the terms and conditions of this
Lease shall continue in full force and effect. If Tenant does not terminate the
Purchase Option prior to the end of the 60 day period, then the closing will
occur as provided herein. At the Closing, Landlord shall convey to Tenant fee
simple title to the Leased Premises by limited warranty deed, free and clear of
all security deeds placed on the Leased Premises by Landlord, but otherwise
subject to the lien for ad valorem taxes not yet due and payable, all matters
of record, all matters caused, created, or suffered by Tenant and all matters
which would be shown on the Closing Date by a current and accurate survey and
inspection of the Leased Premises. Landlord shall pay off any debt of Landlord
which may constitute a lien against the Leased Premises at the time of the
Closing. The purchase and sale contemplated by the Option shall be on an "as
is, where is" basis with Landlord making no representations or warranties
whatsoever with respect to the Leased Premises. At the Closing, Tenant shall
release landlord from any and all liability of whatever nature arising out of
the Leased Premises.
Each of the Landlord and Tenant agree to execute such .usual and
customary closing documents as may be reasonably requested by the other party,
including without limitation a closing statement, bill of sale, owner's
affidavit, transfer tax declarations and other similar items.
(6) This option is not assignable except to an affiliate of Tenant. Assignment
of this Lease to any party other than one to whom this option is assignable
shall automatically void this option and neither Tenant nor anyone claiming by,
through or under Tenant shall thereafter, have any right whatsoever under this
provision.
Right of first refusal to purchase:
Landlord xxxxxx agrees that for so long as it owns the Leased
Premises, it will grant to Tenant the right of first refusal to purchase the
Leased Premises upon the terms and conditions contained herein.
Landlord will notify Tenant of its intent to sell the Property and the
terms and conditions under which it is willing to sell. This right shall not
apply to any transfer or conveyance to a related entity or by foreclosure or by
deed in lieu of foreclosure to the holder of any mortgage or any other
individual or entity acquiring at a foreclosure sale under said mortgage or
otherwise or to 'any other individual or entity acquiring by, through or under
the holder of the mortgage.
Tenant shall provide written notice to Landlord, as to Tenant's
decision regarding the purchase of the Leased Premises within (10) days after
Landlord's notice to Tenant is received. If Tenant does not provide written
notice within ten (10) days or indicates that it will not exercise its right of
first refusal, this right will extinguish automatically and Landlord shall have
no future obligations to Tenant with regard to the .Leased Premises which was
subject to such notice. Tenant will provide such documentation as Landlord
shall reasonably request to release the Leased Premises from this right of
first refusal.
In the event that Xxxxxx intends to exercise this right of first
refusal, Xxxxxx must deliver to Landlord a sum equal to ten percent (10%) of
the purchase price of the Leased Premises (hereinafter the "Leased Premises
Xxxxxxx Money") together with a written notice to Landlord of its intention to
purchase the Leased Premises. On the Closing Date, the Leased Premises Xxxxxxx
23
Money shall be applied as part payment of the purchase price of the Leased
Premises.
Closing of :the purchase of the Leased Premises shall take place
within ninety (90) days of Tenant's notice to Landlord and at a time and place
within the Atlanta, Georgia area as the parties may agree. Tenant shall have a
period of sixty (60) days from the date it exercises its right of first refusal
to Purchase to inspect the Leased Premises and to obtain a title commitment
survey and environmental report to determine that the condition of the title,
environmental status and survey do not adversely affect Tenant's ownership or
use of the Leased Premises. In the event Tenant determines that there is an
adverse impact on Tenant's use or ownership of the Leased Premises, Tenant
shall have the option to terminate its decision to purchase the Leased Premises
and all of the terms and conditions of this Lease shall continue in full force
and effect.. If Tenant does not terminate its decision to purchase the Leased
Premises prior to the end of the 60-day period, then the Closing will occur as
provided herein.
This right of first refusal is personal to Tenant and is not
assignable except with the express written consent of Landlord.
