EXHIBIT 10.23
Page 1 Lease for Image Industries
J-6
Summary
Lessor: Xxx X. Xxxxx Estate, Xxxxx X. Xxxxxx, Executrix
Lessee: Image Industries, Inc.
Term: One year
Rent: $10,994.00 month - ( $.16 sq. ft.)
Begin: September 1,1997
End: August 31, 1998
Option: Yes, One year
Index
Term Section # 2 Page 2
Rent Section # 3 Page 2
Utilities Section # 6 Page 3
Taxes Section # 7 Page 3
Repairs Section # 8 Page 3
Destruction of Premises Section # 9 Page 3
Right of Recovery Section # 11 Page 4
Default Section # 13 Page 5
Address of Notice Section # 17 Page 7
Date of Notice Section # 21 Page 8
Renewal Option Section # 21 Page 8
Insurance Section # 23 Page 9
Environmental Section # 24 Page 10
Signatures Page 11
Notes:
September Rent to be pro-rated from move in date and shall be due immediately.
Rent Checks to be Payable to JSO, Inc.
Page 2 Lease for Image Industries
GEORGIA, XXXXXX COUNTY:
This LEASE, made this 12th day of Dec, 1997, by and between Xxx X. Xxxxx
Estate, Xxxxx X. Xxxxxx, Executrix ("Lessor"), and Image Industries, Inc.
("Lessee").
W I T N E S S E T H:
The Lessor, for and in consideration of the rents, covenants, agreements
and stipulations hereinafter mentioned, reserved and contained, to be kept and
performed by the Lessee, have leased and rented and by these present do lease
and rent unto the said Xxxxxx and the said Lessee hereby agrees to lease and
take upon terms and conditions which hereinafter appear, the following described
property, along with all improvements thereon ("Premises"):
That certain Warehouse containing approximately 68,715 square feet, and
being part of the "Harbinger" complex known as J-6, located at 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxx Xxxxxxx. In addition to the foregoing (which constitutes the
Premises), Lessee shall have access with all other tenants of Lessor to those
areas and parts of the property upon which the Harbinger Complex is located
which are intended for the common use and/or benefit of all occupants of said
Complex, including all parking areas, sidewalks, driveways, service areas and
loading docks.
(1)
Lessors represent and covenant that they have good and marketable title to
the Premises and that they have full right, title and authority to enter into
this lease.
(2)
TO HAVE AND TO HOLD the Premises, commencing the later of (i) the date
Tenant takes occupancy of the Premises or (ii) September 1, 1997 and continuing
thereafter for a period of one (1), year, ending August 31, 1998.
(3)
Xxxxxx agrees to pay Lessor rental of Ten Thousand, Nine Hundred
Ninety-four Dollars ($10,994.00) in advance on the first day of each month for
the one (1) year term.
(4)
It is intended that the Premises shall be used for manufacturing or
storage, but no strict limitation is hereby imposed. The Premises shall not be
used for any illegal purposes nor in any manner so as to increase the rate of
insurance thereon. The Lessee agrees to pay any increase caused in the Lessors
insurance rates by virtue of a change in the type of business that Lessee is
conducting.
Page 3 Lease for Image Industries
(5)
Xxxxxx agrees not to abandon or vacate the Premises during the term
hereof.
(6)
Lessee shall pay water, gas, electricity, fuel, light, heat and power
bills for the Premises, or used by the Lessee in connection therewith. If Lessee
does not pay the same, Lessor may at their option pay the same and such payments
shall be added to the rental.
(7)
Lessor shall pay state, county and municipal ad valorem taxes assessed
against the Premises during the term of this lease. However, it is further
provided between the parties hereto that the Lessee will pay to the Lessor as
additional rental any increase in ad valorem taxes, city and county, charged
against the lease premises over and above the amount of ad valorem taxes for the
year of 1997 with said payment to be made by the Lessee to Lessor within 30 days
upon written notice by the Lessor to the Lessee of said increase in taxes, if
any. All tax bills delivered to Lessor by the taxing authority shall be
sufficient evidence of the tax established for each year during the term. Lessee
reserves the right to reasonably contest any proposed increase in assessments or
taxes and for this purpose Xxxxxx agrees to give Xxxxxx prompt notice of any
proposed increase in assessments by the taxing authority and to cooperate with
Xxxxxx in formally protesting unreasonable increases in assessments.
(8)
Lessor shall make all structural element and exterior wall repairs, and
shall maintain the roof exterior and repair roof leaks. Lessee shall keep and
maintain the Premises and appurtenances and every part thereof in good order and
repair, except for the structural elements, exterior roof and exterior wall of
the building. Xxxxxx agrees to keep all systems and fixtures pertaining to
heating, air conditioning, water, sewer, electrical and sprinkler systems, if
any, in good order and repair. Notwithstanding the foregoing or any other
provision contained in this Lease to the contrary, Lessor acknowledges and
agrees that (i) Lessee's obligation to maintain the utility systems and fixtures
(including, but not limited to the heating and air conditioning system) shall be
limited to such repairs and/or replacements as are necessitated due to Lessee's
negligence or misuse of such systems and (ii) Lessor shall be liable for the
repair and replacement of such systems if not due to such Lessee negligence or
misuse. Xxxxxx agrees to be liable for any damage to the Premises and its
fixtures, appurtenances and systems, if such damage is due to the negligence of
Lessee, but only in the event such damage is a casualty not covered by a policy
of hazard insurance required to be carried by Lessor under this Lease Agreement.
(9)
If the Premises are totally destroyed by storm, fire, lightning,
earthquake or other casualty, this lease shall terminate as of the date of such
destruction, and Lessee shall
Page 4 Lease for Image Industries
not be liable for any rent beyond that date and rental shall be accounted for as
between Lessor and Lessee as of that date. If the Premises are damaged but not
wholly destroyed by and of such casualties, rental shall xxxxx in such
proportion as use of Premises has been destroyed and Lessor shall restore
Premises to substantially the same condition as before the damage as speedily as
practicable, whereupon full rental shall commence.
If the Premises cannot be restored to substantially the same condition
they were in prior to the casualty within a period of One Hundred Twenty (120)
days from the occurrence of the damage, then Lessee shall have an option to
terminate this lease upon the giving of notice of termination to Lessor within
seven (7) days after Lessor notifies Lessee of their inability to repair the
Premises within the required time (which notice Lessor agrees to provide to
Lessee within ten (10) days of the subject casualty event), or within seven (7)
days after Lessors inability to do so has been apparent, and this Lease shall
terminate upon the giving of such notices.
(10)
Xxxxxx agrees to indemnify and save harmless the Lessor against all claim
for damage to persons or property by reason of Xxxxxx's use or occupancy of the
Premises and all expenses reasonably incurred by Xxxxxx as a result thereof,
including attorney's fees and court costs. Xxxxxx agrees to maintain throughout
the term, at its sole expense, liability insurance adequate to protect Lessor
and Xxxxxx against any claims arising by the use and occupancy of the Premises
by Xxxxxx.
Lessor agrees to maintain fire and extended coverage insurance policies
upon the building located upon the Premises during the term in amounts adequate
to afford the restoration of said building in the event of damage by fire and
other similar insurance casualty. Lessee agrees to maintain adequate fire and
extended coverage policies upon its contents located upon said Premises during
the term thereof. Parties agree to afford the other evidence that proper
insurance is maintained at all times.
(11)
Lessor and Lessee each hereby waive any and all rights of recovery against
the other, or against the officer, employees, agents and representatives of the
other, for loss of or damage to such waiving party or its or their property of
the property of others under its or their control to the extent that such loss
or damage is insured against under any insurance policy in force at the time of
such loss or damage, and each shall upon obtaining the policy of insurance
required by the term of this lease, give notice to the respective insurance
carriers that the foregoing mutual waiver of subrogation is contained in this
lease.
Page 5 Lease for Image Industries
(12)
Lessee shall not, without the consent of Xxxxxx, endorsed hereon, assign
this lease or any interest herein, or sublet the Premises by any party other
than Lessee. However, upon express written consent of Lessor, which consent
shall not be unreasonably withheld, Lessee shall have the right to sublet or
assign the premises, the Parties determining at that time whether Lessee shall
be released from the terms hereof entirely, and assignee or sublessee to become
fully liable. The use or occupancy of the Premises by an affiliate or a wholly
owned subsidiary of Lessee shall not constitute assignment and subletting, which
shall require the consent of Lessor.
(13)
Part 1.
The occurrence of any one or more of the following events shall constitute
a default of this Lease by Xxxxxx:
(a) The vacating or abandonment of the Premises by Xxxxxx.
(b) The failure by Lessee to make any payment of rent or any other payment
required to be made by Lessee hereunder, as and when due, when such condition
continues for ten (10) days after receipt of written notice from Lessor to make
such payment.
(c) The failure by Lessee to observe or perform any of the covenants,
conditions or provisions of the Lease to be observed or performed by Xxxxxx,
other than described in Part 1.(b) above, where such failure shall continue for
a period of thirty (30) days after written notice thereof from Lessor to Lessee,
unless the failure cannot be reasonably corrected within such thirty (30) day
period, if Xxxxxx commences in good faith to cure such failure diligently.
(d) (i) The making by Lessee of any general assignment, or general
arrangement for the benefit of creditors;
(ii) The filing by or against Lessee of a petition to have Xxxxxx
adjudged a bankrupt or a petition for reorganization or arrangement under any
law relating to bankruptcy (unless in the case of a petition filed against
Lessee the same is dismissed within sixty (60) days);
(iii) The appointment of a trustee or received to take possession of
substantially all of the Lessee's assets located at the Premises or of Xxxxxx's
interest in this Lease, where possession is not restored to Lessee within thirty
(30) days; or,
Page 6 Lease for Image Industries
(iv) The attachment, execution or other judicial seizure of substantially
all of Lessee's assets located at the Premises or of Xxxxxx's interest in this
lease, where such seizure is not discharged within thirty (30) days.
Part 2.
In the event of any such default of Lessee, Lessor may at any time
thereafter, with or without further notice of further demand and without
limiting Lessor in the exercise of any right or remedy which Lessor may have by
reason of such default or breach:
(a) terminate Xxxxxx's right to possession of the Premises by any lawful
means, in which case this Lease shall terminate and Xxxxxx shall immediately
surrender possession of the Premises to Lessor. In such event, Lessor shall be
entitled to recover from Lessee all damages incurred by Lessor by reason of
Xxxxxx's default including, but not limited to: any deficiency between Xxxxxx's
rent hereunder and the price obtained by Lessor of reletting, the cost of
recovering possession of the Premises, expense of reletting, including necessary
renovation and alteration of the Premises, reasonable attorney's fees, and any
real estate commission actually paid; the worth, at the time of award by the
court having jurisdiction thereof, of the amount by which the unpaid rent for
the balance of the term exceeds the amount of such rental loss for the same
period that Lessee proves could be reasonable avoided; and any leasing
commission paid by Lessor applicable to the unexpired term of this lease.
Unpaid installments of rent and other sums shall bear interest from ten
(10) days after the due date at the rate of twelve percent (12%) per annum, but
in no case shall said interest exceed the lawful maximum. In the event Lessee
shall have abandoned the Premises, Lessor shall have the option of (1) retaking
possession of the premises and recovering from Lessee the amount specified in
this Part 2.(a), or (ii) proceeding under Part 2.(b).
(b) maintain Lessee's right to possession in which case this lease shall
continue in effect whether or not Lessee shall have abandoned the Premises. In
such event Lessor shall be entitled to enforce all of Xxxxxx's rights and
remedies under this Lease, including the right to recover the rent as it becomes
due hereunder.
(c) pursue any other remedy now or hereinafter available to Lessor under
the laws or judicial decisions of the State of Georgia.
(14)
Lessee shall give prompt notice to Lessor of any condition or requirement
to be met or fulfilled by Lessor under the terms of this Lease, and Lessor shall
within thirty
Page 7 Lease for Image Industries
(30) days after written notice cure such default, provided, however, that if the
nature of Xxxxxx's obligation is such that more than thirty (30) days are
required for performance, then Lessor shall not be in default if Lessor
commences performance within such thirty (30) day period and thereafter
diligently prosecute same to completion. In relation to the above, Xxxxxx
acknowledges and agrees that in the event Xxxxxx fails to commence and
thereafter diligently pursue the repair and/or replacement of any items for
which it is responsible hereunder within said thirty (30) day period, Lessee
shall thereafter have the right to make such repairs and/or replacements and
charge Lessor the cost therefor. In addition, Tenant shall have the right to
make emergency repairs to elements for which Xxxxxx is responsible under
circumstances where Xxxxxx has failed to timely repair such elements following
notice from Lessee and the continuance of such disrepair would likely result in
damage to materials stored by Xxxxxx at the Premises.
(15)
Time is of the essence in the performance of any obligation under this
Lease agreement.
(16)
This Lease contains all agreements of the parties with respect to the
subject matter of this Lease. No prior agreement or understanding pertaining to
any such matter shall be effective. This Lease may be modified in writing only,
signed by the parties in interest at the time of the modification.
(17)
Any notice provided for in this Lease shall be in writing and shall be
sent by Certified Mail, addressed as follows:
To Lessor: Xxxxx X. Xxxxxx, Executrix
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
To Lessee: Image Industries, Inc.
Attn.: Xx. Xxxxx Xxxxxx
P.O. Box 5555
Armuchee, Georgia 30105
(18)
If Xxxxxx remains in possession of the Premises or any part thereof after
the expiration of the term hereof without the express written consent of Lessor,
such occupancy shall be a tenancy from month to month at a rental in the amount
of the last monthly rental plus all other charges payable hereunder and upon all
terms hereof applicable to a month to month tenancy. Nothing contained herein
shall be construed to constitute permission by the Lessor to the Lessee to
remain in possession after the expiration of the term hereof.
Page 8 Lease for Image Industries
(19)
If either party bring an action to enforce the terms hereof or declare
rights hereunder, the prevailing party in such action, on trial or appeal, shall
be entitled to his attorney's fees to be paid by the losing party as fixed by
the court.
(20)
Lessor shall have the right to enter the Premises at reasonable times for
the purpose of inspecting same and showing same to prospective purchasers or
lenders, and making such alterations, repairs, Improvements or additions to the
Premises or to the building of which they are part as Lessors may deem necessary
or desirable. During the last sixty (60) days of the term hereof Lessor may
place on or about the Premises any ordinary "for lease" or "for sale" sign.
Lessor shall provide Lessee at least 24 hours written notice of its intention to
enter the Premises; provided, however, no such notice shall be necessary in the
event of an emergency.
(21)
Lessor hereby grants unto Lessee the option to extend the term of this
Lease for an additional one (1) year period commencing September 1, 1998, and
terminating August 31, 1999, at midnight. Said option shall be exercised by
Lessee giving Lessor written notice of exercise, which notice must be sent by
Lessee not less than ninety (90) days before the end of the initial term, which
notice date shall be as follows:
Last day for xxxxxx's notice of renewal of lease: May 31, 1998.
All terms of this lease shall remain the same for the renewal term, save
the rental amount, which shall be established by agreement of Lessor and Lessee,
they renegotiating the rental amount in good faith, taking into consideration
general business conditions.
If parties hereto shall be unable to agree between themselves as to what a
proper rental shall be for the option period, then the amount of such rental
shall be determined by arbitrators, Lessor and Lessee each selecting one person,
said arbitrators to be qualified real estate agents or persons known to have
knowledge of local real estate values, the two arbitrators to establish a proper
rental thereafter and if the two arbitrators are unable to agree upon a rental,
they shall choose a third arbitrator, likewise qualified as to real estate
values, and the third person so chosen, or any two of them, shall forthwith
proceed to appraise and establish the fair rental value of the Lease on the
Premises for the aforesaid renewal term, which shall be final and binding.
Notwithstanding the above, Xxxxxx agrees that the monthly rental sum for the
renewal term shall not exceed fifteen percent (15%) increase per month.
Page 9 Lease for Image Industries
(22)
This contract shall create the relationship of landlord and tenant between
Xxxxxx and Lessee; no estate shall pass out of Lessor, Xxxxxx has only a
usufruct, not subject to levy and sale, and not assignable by Xxxxxx except as
provided in paragraph (12) above.
(23)
Insurance, Lessor shall, at its cost and expense, provide and keep in
force the following insurance coverage without lapse at any time and for any
reason during the term of this Lease:
(i) Insurance covering the premises against loss or damage by fire and
lighting and such risks as are included in "Special Form" or All Risk coverage
endorsements to policies covering property similar to the premises in an amount
equal to 100% of the full replacement value thereof (excluding foundations and
excavation costs), which names Lessee as an additional insured and which
includes an endorsement waiving the right of subrogation. Notwithstanding
anything contained in this lease to the contrary, regardless of whether or not
Lessor provides and keeps in force the required insurance covering losses for
such causes and regardless of whether or not Lessee its agents, employees,
contractors or others under the control of Lessee cause such damages Lessor
shall be responsible for repairing all damages to the premises caused by fire
and lightning and such risks as are customarily included in "Special Form" or
All Risk coverage endorsements to policies covering property similar to the
premises.
(ii) Commercial General Liability coverage on an "Occurrence Form" basis
with limits of at least $1,000,000. Each Occurrence, and $2,000,000 General
Aggregate for all claims
Page 10 Lease for Image Industries
(24)
Environmental Compliance; To the best of the lessors knowledge and belief, there
are no existing violations of any federal, state or local environmental laws and
regulations and any amendments thereto including, but not limited to, the
Comprehensive Environmental Response Compensation and Liability Act of 1980, the
Superfund Amendments and Reauthorization Act of 1986, and the Resource
Conservation Recovery Act of 1976. Lessor shall indemnify and hold tenant
harmless from and against any and all damages, penalties, fines, claims liens,
suits liabilities, cost (including clean-up cost), judgments and expenses
(including, but not limited to, attorneys', consultants' and experts' fees and
expenses) of any kind and nature suffered or asserted against Lessee as a direct
or indirect result of any preexisting condition prior to the occupancy of said
premises by lessee or as a direct or indirect result of any condition or
violation taking place after the termination of the lease term or xxxxxx's
occupancy of the property. The foregoing indemnification shall survive the
expiration or termination of the lease term. The Lessee in the same manner as
described above agrees to hold lessor harmless should any violation as described
above be caused or allowed to be caused by the lessee or it's agents, servants,
employees, contractors or vendors.
This Lease contains the entire agreement of the parties hereto and no
representation, inducements, promises or agreements, oral or otherwise, between
the parties not embodied herein shall be of any force or effect.
In the event of a condemnation or taking by eminent domain which renders
the Premises unusable for their intended use, this Lease shall terminate as of
the date of such taking. Lessor warrants that Lessee, upon payment of the
required rents and performing the terms, conditions, covenants and agreements
contained in this Lease, shall peaceably and quietly have, hold and enjoy the
Premises during the full term of this Lease as well as any extension thereof.
Page 11 Lease for Image Industries
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
affixed their seals in duplicate, each copy being considered an original, and
day and year first above written.
Signed, sealed and delivered as to: "LESSEE"
Image Industries, Inc.
-----------------------------------
/s/ Xxxxx Xxxxx BY: /s/ [ILLEGIBLE]
----------------------------------- ------------------------------------
Notary Public, My commission Expires By: Treasurer
01-26-99 ------------------------------------
Signed, sealed and delivered as to:
"LESSOR"
-----------------------------------
/s/ Xxxxx [Illegible] /s/ Xxxxx X. Xxxxxx
----------------------------------- ----------------------------------------
Notary Public, My commission Expires Xxx X. Xxxxx Estate
2-12-00 Xxxxx X. Xxxxxx, Executrix 9-5-97
Inserts to Xxx X. Xxxxx Estate/Image Industries, Inc. Lease:
1. In addition to the foregoing (which constitutes the Premises), Lessee
shall have access with all other tenants of Lessor to those areas and parts of
the property upon which the Harbinger Complex is located which are intended for
the common use and/or benefit of all occupants of said Complex, including all
parking areas, sidewalks, driveways, service areas and loading docks.
2. the later of (i) the date Tenant takes occupancy of the Premises or
(ii)
3. element
4. structural elements
5. Notwithstanding the foregoing or any other provision contained in this
Lease to the contrary, Lessor acknowledges and agrees that (i) Lessee's
obligation to maintain the utility systems and fixtures (including, but not
limited to the heating and air conditioning system) shall be limited to such
repairs and/or replacements as are necessitated due to Lessee's negligence or
misuse of such systems and (ii) Lessor shall be liable for the repair and
replacement of such systems if not due to such Lessee negligence or misuse.
6. (which notice Lessor agrees to provide to Lessee within ten (10) days
of the subject casualty event).
7. In relation to the above, Xxxxxx acknowledges and agrees that in the
event Xxxxxx fails to commence and thereafter diligently pursue the repair
and/or replacement of any items for which it is responsible hereunder within
said thirty (30) day period, Lessee shall thereafter have the right to make such
repairs and/or replacements and charge Lessor the cost therefor. In addition,
Tenant shall have the right to make emergency repairs to elements for which
Xxxxxx is responsible under circumstances where Xxxxxx has failed to timely
repair such elements following notice from Lessee and the continuance of such
disrepair would likely result in damage to materials stored by Xxxxxx at the
Premises.
8. Lessor shall provide Lessee at least 24 hours written notice of its
intention to enter the Premises; provided, however, no such notice shall be
necessary in the event of an emergency.
9. Lessor
10. Lessee
11. Lessor shall be responsible for repairing all damages
12. Lessor
13. In the event of a condemnation or taking by eminent domain which
renders the Premises unusable for their intended use, this Lease shall terminate
as of the date of such taking. Lessor warrants that Lessee, upon payment of the
required rents and performing the terms, conditions, covenants and agreements
contained in this Lease, shall peaceably and quietly have, hold and enjoy the
Premises during the frill term of this Lease as well as any extension thereof.
