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Exhibit 10.22
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
TERMS:
LANDLORD: AP Southeast Portfolio Partners, LP d/b/a Highwoods Xxxxxxxx with
its principal office at 0000 Xxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000.
TENANT: AmeriQuest Technologies, Inc. a corporation duly organized and
existing under the laws in the state of Pennsylvania with his
principal office at 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxxx,
XX 00000.
PREMISES: (a) Suite: 230
(b) Rentable Area: 6,011 square feet
(c) See Floor Plan attached hereto as Exhibit "A."
BUILDING: 0000 Xxxxxxxx Xxxxxxx, Xxxxxx Xxxxxx Xxxxxxx, which is located
within the Project.
PROJECT: Those certain tracts or parcels of land owned by Landlord from time
to time and being more particularly described on Exhibit "B,"
together with all improvements located thereon or which may
hereafter be constructed thereon.
COMMENCEMENT DATE: September 15, 1997
TERMINATION DATE: September 30, 2000
BASE TAXES AND ASSESSMENTS: $ * per square foot
BASE INSURANCE: $ * per square foot
PERMITTED USES: General office and warehouse
FIRST LEASE YEAR BASE RENT (PER YEAR): $40,574.25
FIRST MONTHS RENT: $ 3,381.19
SECURITY DEPOSIT: $ 3,656.69
AGENT: Lavista Associates, Inc. - Xxxx Xxxxx
*The estimated base 1997 taxes and assessments on a per square foot basis based
on annual Gwinnett county building property tax assessment. Landlord will
provide copy of tax notice and resulting per square foot calculation when
available. The base year for insurance will also be 1997.
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into as of this 8th day of
September, 1997, by and between AP Southeast Portfolio Partners, LP d/b/a
Highwoods Xxxxxxxx a Delaware limited partnership ("Landlord"), and
AmeriQuest Technologies, Inc. a Pennsylvania corporation ("Tenant").
In consideration of the premises and covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. PREMISES. Landlord does hereby rent and lease to Tenant, and Tenant
does hereby rent and hire from Landlord, during the Lease Term (as hereinafter
defined), that certain space shown on the floor plan attached hereto as Exhibit
"A" and made a part hereof ("Premises"), located in Building 5600 ("Building")
of Oakbrook ("Project"), Dekalb County, Georgia, as more particularly described
on Exhibit "B" attached hereto and made a part hereof. The Premises are deemed
to contain 6,011 rentable square feet ("Rentable Area"). The Project is deemed
to contain 106,680 rentable square feet. As used herein, "Tenant's Share" shall
mean a fraction, the numerator of which shall be the Rentable Area, and the
denominator of which shall be the gross rentable area of the Project. No
easement for light and air is included in the Premises. For purposes of this
Lease, Xxxxxx's Share is deemed to be five point six percent (5.6%).
2. POSSESSION.
a. "Lease Term" means a term commencing on the Commencement Date (as
hereinafter defined) and continuing for 36.5 full calendar months (plus any
partial calendar month if the Commencement Date is not the first day of a
month), unless sooner terminated or extended hereunder.
b. "Commencement Date" means the earlier of the date Tenant first
occupies the Premises or September 15, 1997. If by the Commencement Date
Landlord has not substantially completed the improvements to the Premises
required to be made by Landlord pursuant to Exhibit "D" attached hereto and made
a part hereof (if any), or if Landlord, for any other reason whatsoever, cannot
deliver possession of the Premises to Tenant by the Commencement Date, then the
Commencement Date shall be postponed (and the rent herein provided shall not
commence) until the earlier of either (I) the date of actual occupancy of the
Premises by Tenant or (ii) the date immediately following the day Landlord has
achieved substantial completion of such improvements. Landlord and Tenant shall
each have the option to terminate this lease by written notice to the other if
the Commencement Date has not occurred within six (6) months from the date
hereof. Provided, further, this lease shall automatically terminate without
action on the part of any party hereto if the Commencement Date has not occurred
within twelve (12) months from the date hereof. Landlord shall have no liability
for any delay in delivering possession of the Premises to Tenant.
c. If, and to the extent, Xxxxxxxx's substantial completion of the
improvements to the Premises pursuant to Exhibit "D" attached hereto is delayed
due to any act or omission of Tenant or anyone acting under or for Tenant (any
such delay being hereinafter referred to as "Tenant's Delay"), then the
Commencement Date shall be the date specified in subsection (b) above, subject
to adjustment as provided therein, but without extension as a result of Tenant's
Delay; provided that from the Commencement Date, as so determined, until the
earlier of (I) the date of actual occupancy of the Premises by Tenant or (ii)
the date immediately following the date Landlord would have achieved substantial
completion of such improvements but for Xxxxxx's Delay, Xxxxxx's obligations
under this Lease shall be limited to the payment of any and all Rent due
hereunder.
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d. Within five (5) days of written request by Xxxxxxxx, Xxxxxx
agrees to execute and deliver to Landlord a commencement date agreement setting
forth the exact Commencement Date of the Lease Term and stating that all tenant
improvements to be constructed by Xxxxxxxx have been substantially completed,
subject to the completion of any outstanding punchlist items.
3. BASE RENT.
a. Tenant shall pay to Landlord at AP Southeast Portfolio Partners,
LP, P.O. Box 100730 Atlanta. Georgia 30384-0730 or at such other place as
Landlord may designate, from and after the Commencement Date, an initial annual
Base Rent of $40,574.25 plus sales tax, if applicable, to be paid without
notice, demand, deduction, or set-off on the first day of each month, in
advance. The Base Rent shall be payable during the Lease Term and shall be
adjusted as set forth in the Special Stipulations attached hereto.
b. As used in this Lease, the term "Rent" shall include Base Rent,
Additional Rent, and all other sums and obligations due Landlord hereunder.
c. Payments of Rent not received by Landlord within five (5)
calendar days of the due date thereof shall be subject to a late charge due and
payable by Tenant to Landlord on the sixth (6th) calendar day after the due date
thereof in an amount equal to twenty five dollars ($25.00) or five percent (5%)
of such past due amount, whichever amount is greater.
4. ADDITIONAL RENT. Additional Rent for any calendar year shall equal
the sum of the following amounts:
a. Tenant's Proportionate Share of any increase in Taxes on the
Property over the amount payable therefor for the calendar year in which the
Commencement Date occurs (the "Base Year"). "Taxes" means all real estate taxes,
assessments (whether for drainage, sewage, or other public improvements), taxes
on rent or on occupancy or use of the Property, and similar governmental
impositions now or hereafter levied or assessed, whether general or special, and
whether imposed by any governmental entity or special taxing or assessment
district (excluding, however, any income, franchise, or similar tax imposed
directly on Landlord or Landlord's net income from the Property), together with
all costs incurred by Landlord in contesting same.
b. Tenant's Proportionate Share of any increase in premiums for
casualty and for liability insurance coverage carried by Landlord for the
Property (including any endorsements or additional coverages that Landlord may
reasonably elect to carry) over the amount payable therefor for the Base Year;
excluding, however, any increased premium attributable solely to a particular
hazardous use of the Property by another tenant.
c. Tenant's Proportionate Share of all costs payable by Landlord
for (a) operating and maintaining (including routine repairs and replacements)
the common areas, facilities, and equipment of the Property, including
landscaping, irrigation systems, parking and loading areas, driveways,
sidewalks, exterior lighting, common signs, garbage collection and disposal,
common water, sewer, plumbing, gas, electric facilities and equipment, common
area security services and equipment (if furnished by Landlord), and other
areas, facilities, or equipment shared by the various tenants in the Building,
(b) assessments, fees, or similar charges imposed on the Property for its share
of the cost of operating and maintaining common areas and facilities of the
business park in which the Property is located, (c) unless separately metered
and payable directly by Tenant, charges by public or private utility companies
for water and sewer usage, and (d) administrative costs, management
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fees and costs and
*The estimated base 1997 taxes and assessments on a per square foot basis
based on annual Gwinnett county building property tax assessment. Landlord
will provide copy of tax notice and resulting per square foot calculation
when available. The base year for insurance will also be 1997.
expenses of providing accounting and bookkeeping services with respect to the
operation and maintenance of the Property. Common Area Maintenance charges will
not reflect major replacements or capital improvements such as roof, parking
lots, and structures.
5. To the extent attributable to the Premises, the entire amount of any
costs payable by Landlord for pest control and vermin extermination in the
Premises. Landlord shall attempt in good faith (without litigation) to keep such
costs reasonably consistent with those of comparable properties in the same
market area.
Additional Rent shall be calculated and appropriately adjusted for each calendar
year (including the Base Year) to reflect costs that would have been incurred
for a full calendar year with the entire rentable area of the Building occupied.
The base year for all additional rent calculations contained in paragraph 1 & 2
of this Exhibit E shall be 1997.
6. UTILITIES. Tenant shall promptly pay the cost of all utility services
furnished to the Premises, including, but not limited to, gas, water,
electricity, garbage collection and other sanitary services, and any initiation
or connection fees for any of the foregoing. Landlord may furnish any utility
service to the Premises, and Tenant shall promptly pay Tenant's Share of the
cost of any such utility to Landlord within ten (10) days of receiving a
statement showing any amount due. Landlord may adjust Xxxxxx's Share for
purposes of this paragraph if Landlord determines that Xxxxxx's use of the
Premises justifies a disproportionate allocation of utility cost to Tenant.
7. SECURITY DEPOSIT. Tenant shall deliver to Landlord a Security Deposit
in the amount of $3,656.69 ("Security Deposit") which sum may be held by
Landlord in a regular business checking account, without any obligation to
accrue interest. The Security Deposit shall be held by Landlord as security for
performance by Tenant of Tenant's covenants and obligations under the Lease and
the Security Deposit shall not constitute, or be considered, an advance of
payment of rent, or a measure of Landlord's damages in the case of default by
Xxxxxx. Without waiving or releasing any liability or obligation of Tenant to
perform under the terms of the Lease, Landlord may from time to time without
prejudice to or waiving or releasing any of the other remedies, use such deposit
to the extent necessary to offset any arrearages of rent or any other damages,
injury, expense, or liability incurred by Landlord as a result of any event of
default by Tenant. Upon receipt of notice from the Landlord that the Security
Deposit or any portion of the Security Deposit has been so applied, Tenant shall
pay to Landlord the amount of the Security Deposit so applied in order to
restore the Security Deposit to its original amount. Within a reasonable time
after termination of the Lease, if Tenant is not then in default under the terms
of the Lease, any remaining balance of the Security Deposit shall be returned by
Landlord to Tenant.
8. USE. The Premises shall be used by Tenant for general office and
warehouse and related purposes and no other. The Premises shall not be used for
any illegal purposes, nor shall the Premises be used in violation of any
governmental regulation, in any manner which would be deemed an extra-hazardous
use by any insurance company insuring the Premises or the Building or would
otherwise vitiate or increase the rate of insurance carried by either Landlord
or Tenant on the Premises or the Building. Tenant shall not do or permit
anything to be done in
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or about the Premises which would in any way obstruct or interfere with the
rights of other tenants of the Building. Tenant hereby agrees to comply with any
and all municipal, county, state and federal statutes, regulations, and
ordinances, all restrictive covenants to which the Building is subject, and
other legal requirements applicable or in any way relating to the use and
occupancy of the Premises.
9. ACCEPTANCE OF PREMISES. Xxxxxx accepts the Premises in their present
condition and as suited for the uses intended by Xxxxxx, subject only to
Landlord's agreement to construct tenant improvements pursuant to Exhibit "D"
attached hereto, if any.
10. ALTERATIONS BY TENANT. Tenant shall make no alterations, additions or
improvements to the Premises without first obtaining the written consent of
Landlord, which consent shall not be unreasonably withheld. Tenant shall conduct
any permitted work in such a manner as not to interfere with the operation of
the Building or the business of other tenants and shall, prior to commencement
of the work, submit to Landlord copies of all necessary permits. Landlord
reserves the right to have final approval of the contractors hired by Xxxxxx.
All alterations, additions or improvements, whether temporary or permanent in
character, made in or upon the Premises, either by Landlord or Tenant, shall be
Landlord's property and at the end of the Lease Term shall remain in or upon the
Premises without compensation to Tenant. If, however, Landlord shall request in
writing, Tenant will, prior to termination of this Lease, remove any and all
alterations, additions and improvements placed or installed by Tenant in the
Premises, and will repair any damage caused by such removal.
11. TENANT'S EQUIPMENT. Any trade fixtures, equipment and other personal
property of Tenant not permanently affixed to the Premises ("Personal Property")
shall remain the property of Tenant. Tenant shall have the right, provided
Xxxxxx is not in default hereunder, to remove the same so long as such removal
does not adversely affect the operation of tenant's business in the Premises.
Subject to any lien rights of Landlord, Tenant shall remove all of the Personal
Property from the Premises prior to any expiration or any termination of this
Lease. Any Personal Property remaining on the Premises after expiration or
termination of this Lease shall be deemed abandoned and may be removed and
disposed of by Landlord, all costs for which shall be paid by Tenant. Tenant at
its sole expense shall immediately repair any damage occasioned to the Premises
by reason of the installation or removal of any Personal Property. Tenant
assumes the risk of any and all damage from any casualty whatsoever to, or theft
or any other loss of, its improvements to, and the Personal Property within, the
Premises.
12. MAINTENANCE AND REPAIR BY LANDLORD
a. Landlord shall, except as provided elsewhere herein and subject
to the negligence of Tenant, its agents or employees, make necessary repairs to
the foundation, exterior walls (excluding windows, window glass, plate glass and
doors) and roof of the Building. Tenant shall promptly report to Landlord any
defective condition in the Premises known to Tenant which Landlord is required
to repair hereunder, and failure to so report shall relieve Landlord of
liability for damages to any personal property, fixtures or Tenant Improvements
located in the Premises resulting from or in connection with such defective
condition.
b. Landlord shall maintain the common areas of the Project,
including parking and landscaped areas.
13. MAINTENANCE AND REPAIR BY TENANT Tenant shall, at its sole expense,
repair, maintain and replace as necessary and keep in good, clean and safe
condition all portions of the Premises which are not, pursuant to Paragraph 11
hereof, specifically the responsibility of Landlord as set forth herein,
including, without limitation,
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all windows, doors, partitions, and utility and HVAC systems. Tenant shall
maintain in force at all times a maintenance contract for the HVAC systems in a
form and with a contractor acceptable to Landlord. A copy of the maintenance
agreement shall be given to Landlord within the first 60 days of Tenant's
occupancy. Tenant is responsible for all repairs to the mechanical systems.
Landlord may, at its option, and without relieving any duty or obligation of
Tenant to perform under the Lease, and after appropriate notice to Tenant,
perform any duty of Tenant hereunder and Tenant shall pay the cost thereof to
Landlord as Additional Rent and shall be subject to any other remedy or right
Landlord may have should the failure to perform constitute a default under the
Lease. Tenant will not injure the Premises, or commit or allow to be committed
any waste therein. Tenant shall repair any damage to the Premises or the
Building caused by Tenant or Tenant's agents, contractors, employees, invitees
and visitors.
14. MECHANIC'S LIENS. Tenant shall keep the Premises, the Building and the
Project free from liens for any work performed, material furnished or
obligations incurred by or for Tenant. Upon the filing of any such lien, Tenant
will cause such lien to be removed within ten (10) days after filing; if not so
removed, Landlord may cause same to be discharged and any amount paid by
Landlord shall bear interest at the rate of eighteen percent (18%) per annum
from the date of payment by Landlord and shall be payable by Tenant to Landlord
upon demand.
15. INSURANCE.
a. Tenant shall obtain and maintain in force throughout the Lease
Term comprehensive general liability, premises and operations insurance in the
amount of not less than $1,000,000.00 for any one injury (including death) and
not less than $2,000,000.00 for any bodily injury (including death) annual
aggregate and not less than $1,000,000.00 for property damage. Said policy shall
name both Landlord and Xxxxxx as insured and shall contain a provision requiring
the insurer to give Landlord at least fifteen (15) calendar days prior written
notice before any termination or expiration of said policy for any reason. Prior
to occupancy of the Premises and prior to the expiration of each term on such
policy Tenant shall deliver to Landlord the original of such policy or a proper
certificate from the insurer.
b. Tenant shall, at its own cost and expense, obtain and keep in
force during the Lease term all risk coverage on its improvements, fixtures,
furnishings, equipment and inventory in and upon the Premises for the full
replacement value thereof.
c. Tenant understands that Landlord may furnish the Insurance
Questionnaire attached hereto as Exhibit "C" and made a part hereof to
Landlord's insurance carrier. Xxxxxxxx's execution hereof shall not constitute
acknowledgment, approval or the acceptance of responsibility for the materials
and conditions stated therein, nor vitiate any of Tenant's obligations
hereunder. Tenant shall promptly notify Landlord of any change to the truth or
accuracy of the information contained therein promptly upon learning of same.
The operation by Tenant of its business on the Premises other than in accordance
with the information contained in the Insurance Questionnaire shall be a default
hereunder. If any information contained in the Insurance Questionnaire is or
becomes false or inaccurate, or if a use not revealed by Tenant in the Insurance
Questionnaire causes Landlord's insurance costs to increase, Tenant shall be
liable to Landlord for any such increase in cost arising from or in connection
therewith and shall be deemed to be in default under the Lease.
16. WAIVER OF SUBROGATION. All policies of casualty insurance obtained by
Landlord or Tenant with respect to the Premises, the Building, or the contents
thereof shall contain a waiver by the insurer of all right of subrogation in
connection with any loss or damage insured against by such policy. Landlord and
Tenant, to the
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fullest extent permitted by law, each waive all right of recovery against the
other for, and agree to hold the other harmless from liability, for all losses
or damages to the extent of insurance proceeds actually available or that would
have been available (if such policies are not obtained in accordance with the
provisions hereof) under policies required hereby. If such waiver of subrogation
shall not be obtainable or shall be obtainable only at a premium over that
charged without such waiver, the party seeking such waiver shall so notify the
other in writing, and the latter party shall have ten (10) days in which either
(I) to procure on behalf and at the cost of the notifying party insurance with
such waiver from a company or companies reasonably satisfactory to the notifying
party or (ii) to agree to pay such additional premium (in each case, in
equitable proportions).
17. CASUALTY. If the Premises are damaged by fire or other casualty or the
elements to the extent that, in the judgment of Landlord, the damage cannot be
repaired within one hundred twenty (120) days, or if the Building is so damaged
that Landlord shall decide to demolish, rebuild or reconstruct the Building,
this Lease shall, at the option of Landlord, terminate as of the date of such
casualty, and Tenant shall immediately surrender the Premises to Landlord and
pay Rent up to the date of such surrender. If this Lease is not so terminated,
Landlord shall, within a reasonable time, rebuild or repair the Premises to
substantially the same condition in which they existed prior to such damage;
provided, however, Landlord's obligation hereunder shall be limited to the
insurance proceeds available, and paid1 to Landlord on account of such damage
and to improvements initially constructed at Landlord's cost. Promptly upon
completion of Landlord's repairs, Tenant shall repair and replace all other
alterations and improvements installed in the Premises by or for Tenant and the
Personal Property of Tenant. After any casualty to the Premises, Tenant shall
continue to owe and pay Rent, but, subject to the next succeeding sentence, Rent
shall be equitably abated until the earlier of the date possession of the entire
reconstructed Premises is restored to Tenant or the Lease terminates. If the
Premises or any other portion of the Building is damaged by fire or other
casualty resulting from the negligent or willful acts or omissions of Tenant or
any of Tenant's agents, contractors, employees, or invitees, the Rent shall not
be so abated. Landlord shall not be liable to Tenant for inconvenience,
annoyance, loss of profits, expenses or other type of injury or damage resulting
from the repair of any such damage, or any delay in making such repairs, or for
the termination of this Lease as herein provided. Landlord may terminate this
Lease upon any damage or destruction to the Premises occurring during the final
two (2) years of the Lease Term.
18. CONDEMNATION.
a. In the event of a taking of all of the Premises, or such portion
thereof as to substantially impair the use thereof in the sole judgment of
Landlord, then this Lease shall automatically terminate on, and all Rent payable
by Tenant shall be apportioned and paid through, the date of such taking. Tenant
shall have no right or claim to any part of any award made to or received by
Landlord for such taking.
b. In the event of a partial taking for which this Lease is not
terminated, the Rent hereunder shall be equitably reduced, and Landlord shall
restore and reconstruct the Premises (to the extent of the improvements
initially constructed at Landlord's cost) to the extent necessary to make it
reasonably tenantable, but Landlord shall not be required to spend for such work
an amount in excess of the amount received by Landlord for such restoration.
19. INDEMNITY.
Tenant shall indemnify and hold harmless Landlord and Landlord's partners,
officers, employees and agents from and against any and all liabilities,
damages, losses, and expenses (including attorney's fees) arising in
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whole or in part by reason of or in connection with:
(i) any injury to or death of persons or damage to property (a)
on the Premises, or (b) in any manner arising out of, by reason of or in
connection with, the use, non-use or occupancy of the Premises;
(ii)the violation or breach of, or the failure of Tenant to
fully and completely observe and satisfy, any term or condition of this
Lease; or
thereof.
(iii) the violation of any law affecting the Premises or the
use or occupancy
This contract provision notwithstanding, Tenant shall in no way be liable
to Landlord for any of the foregoing proximately caused by gross negligence or
willful malfeasance or misconduct of Landlord.
20. SUBLETTING AND ASSIGNMENT
a. Tenant shall not assign this Lease or sublet the Premises or
any portion thereof without obtaining in each instance the prior written consent
of Landlord. Xxxxxxxx's consent to Xxxxxx's request to an assignment or sublease
shall not be unreasonably withheld; provided, however, in determining whether or
not to give or withhold its approval of any proposed assignee or subleassee
hereunder, Landlord shall be entitled to consider, without limitation, the
creditworthiness of such proposed assignee or subleassee, the character and/or
type of business of such proposed assignee or subleassee, the impact of such
assignee or subleassee and its business on the image of the Project, and whether
or not such assignee or subleassee will favorably coexist and mix with and not
detract from the character and quality of the Project.
b. If Tenant should desire to assign this Lease or sublet the
Premises or any part thereof, Tenant shall make prior written request to
Landlord, which request shall specify (I) the name and business of the proposed
assignee or subleassee, (ii) the size and location of the space affected, (iii)
the proposed effective date and duration of the assignment or sublease and (iv)
the proposed rental or other consideration to be paid to Tenant by such assignee
or subleassee. Landlord shall have a period of thirty (30) days following
receipt of such notice within which to notify Tenant of its decision regarding
the proposed assignment or sublease. Xxxxxx agrees to reimburse Landlord for
Landlord's reasonable attorney's fees and costs incurred in connection with the
processing and documentation of any request made pursuant to this section.
c. The occupancy of the Premises by any division, subsidiary,
affiliate or other related entity of Tenant or by any successor firm of Tenant
or by any firm into which or with which Tenant may become merged or consolidated
shall be deemed an assignment of this Lease requiring the prior written consent
of Landlord in accordance with this section.
d. Any consent to subletting or assignment shall not be deemed a
waiver of Landlord's right to withhold its consent to any further subletting or
assignment. Notwithstanding any permitted subletting or assignment, Tenant shall
remain obligated to Landlord to discharge all the obligations of Tenant herein
contained and Landlord shall be afforded all remedies provided hereunder in the
event of an uncured default by Xxxxxx. In the event of any permitted assignment
of the Lease or any permitted subletting of the Premises by Xxxxxx, in addition
to Xxxxxx's other obligations hereunder, Tenant shall pay to Landlord the
excess, if any, of (I) the rentals
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and all other charges or consideration of any nature actually received by Tenant
from Xxxxxx's assignee or subtenant under the terms and provisions of such
assignment or sublease or in any manner connected therewith at the time such
rentals and other charges are paid thereunder, over (ii) the total Rent paid by
Tenant to Landlord hereunder, pro-rated based upon the number of square feet
assigned or subleased, in the case of an assignment or a sublease of a portion,
but not all, of the Premises.
21. SUBORDINATION.
a. This Lease is, and shall be, subordinate to any mortgage or deed
to secure debt ("Mortgage") which might now or hereafter constitute a lien upon
the Building or the Project. This provision shall be self-operative, and shall
not require any further documentation to evidence or effectuate this
subordination. Upon request by Landlord or the holder of any Mortgage, Tenant
shall execute such documentation as may be requested to evidence the foregoing
subordination and, failing to do so within ten (10) days after request therefor,
does hereby make, constitute and irrevocably appoint Landlord as Xxxxxx's
attorney-in-fact and in Xxxxxx's name, place and stead so to do. Notwithstanding
the foregoing, however, any holder of a Mortgage may elect that this Lease shall
be superior to its Mortgage, and upon written notification of such election this
Lease shall automatically be superior to said Mortgage whether this Lease is
dated prior to or subsequent to the date of the Mortgage.
b. Upon any assignment of this Lease by Landlord, or upon a
foreclosure of any Mortgage or sale in lieu of foreclosure and at the election
of the purchaser at such foreclosure sale or sale in lieu of foreclosure, Tenant
shall be bound to said assignee or any such purchaser under all of the terms,
covenants and conditions of this Lease for the balance of the Lease Term. Tenant
hereby attorns to such succeeding party as its landlord under this Lease, and
agrees to execute all instruments required by such purchaser affirming such
attornrnent.
22. DEFAULTS. Tenant shall be in default under this Lease upon the
occurrence of any one or more of the following events or occurrences, each of
which shall be deemed to be a material default:
a. Tenant fails to pay the full amount of Rent or any other sum due
hereunder punctually on the due date thereof, which failure is not cured within
five (5) days after written demand by Landlord.
b. Tenant fails to fully and punctually observe or perform any of
the terms, conditions or covenants of this Lease, which failure is not cured
within five (5) days after written demand by Landlord; provided, that if such
failure is impossible to cure within such five-day period and Tenant is
diligently pursuing such cure, Tenant shall have an additional period, as
determined by Landlord in its reasonable discretion, not to exceed thirty (30)
days to cure such failure.
c. Tenant fails to take possession or occupancy of, or deserts or
abandons the Premises or the Premises become vacant.
d. Any representation, statement, or warranty made by Tenant Lease,
or in any information sheet or document furnished by Tenant or any guarantor
with respect to the net worth, liabilities, assets, or financial condition of
Tenant guarantor hereof, or any other matter, shall be or prove to be untrue or
misleading.
e. The filing or execution or occurrence of; (a) a petition by or
against Tenant or any guarantor hereof in bankruptcy or seeking any
reorganization, arrangement, composition, readjustment,
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liquidation, dissolution or similar relief under any bankruptcy or insolvency
statute or law, (bb) adjudication of Tenant or any guarantor hereof as a
bankrupt or insolvent, or insolvencyin the bankruptcy or equity sense, (cc) an
assignment by Tenant or any guarantor hereof for the benefit or creditors, (dd)
a petition or proceeding by or against Tenant or any guarantor hereof for, or
the appointment of a trustee, receiver, guardian, conservator or liquidator with
respect to any portion of Tenant's or guarantor's property, (ee) any levy,
execution or attachment against Tenant or any guarantor hereof, or (ff) any
transfer or passage of any interest of Tenant under this Lease by operation of
law.
(i) Tenant fails to fully and punctually observe or perform
any of the terms, conditions or covenants of this Lease, for which Xxxxxx has
already received a written notice and effected cure within the preceding six
months.
23. REMEDIES.
a. Upon occurrence of any one or more of the aforesaid events of
default, Landlord shall have the option to pursue any one or more of the
following remedies without any demand or notice whatsoever (except as expressly
provided in this Lease):
b. Terminate this Lease by giving Tenant notice of termination, in
which event this Lease shall expire and terminate on the date specified in such
notice of termination, and Tenant shall remain liable for all obligations under
this Lease arising up to the date of such termination, and Tenant shall
surrender the Premises to Landlord on the date specified in such notice.
c. Terminate this Lease as provided in subparagraph (a) (I) hereof
and recover from tenant all obligations arising up to the date of such
termination and all damages Landlord may incur by reason of Tenant's default,
including, without limitation, a sum which, at the date of such termination
represents the present value (discounted at a rate equal to the greater of eight
percent (8%) per annum or the then applicable rate of interest as specified in
the financing outstanding on the Project) of the excess, if any, of (aa) the
Rent and all other sums which would have been payable hereunder by Xxxxxx for
the period commencing with the day following the date of such termination and
ending with the date hereinbefore set for the expiration of the full term hereby
granted, over (bb) the aggregate reasonable rental value of the Premises for the
same period, all of which present value of such excess sum shall be deemed
immediately due and payable; provided, however, that such sum shall not be
deemed a penalty or forfeiture, actual damages being difficult or impossible to
measure, and such sum represents the parties' reasonable best estimate of the
damages which would be incurred by Landlord in the event of a breach by Xxxxxx.
d. Without terminating this Lease, declare immediately due and
payable all Rent and other amounts due and coming due under this Lease for the
entire remaining Term hereof, together with all other amounts previously due, at
once, which total amount shall be discounted to the present value (at a rate
equal to the greater of eight percent (8%) per annum or the then applicable rate
of interest specified in the financing outstanding on the Project); provided,
however, that such payment shall not be deemed a penalty or liquidated damages
but shall merely constitute payment in advance for Rent for the remainder of
said Term. Upon making such payment, Tenant shall be entitled to receive from
Landlord all rents received by Landlord from other assignees, tenants, and
subtenants on account of said Premises during the Term of this Lease provided
that the monies to which Tenant shall so become entitled shall in no event
exceed the entire amount actually paid by Tenant to Landlord pursuant to the
preceding sentence less all costs, including refurbishing the Premises and new
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lease commissions, expenses and attorney's fees of Landlord incurred in
connection with the reletting of the Premises.
e. Without terminating this Lease, and with or without notice to
Tenant, Landlord may in Landlord's own name, but as agent for Tenant, enter into
and upon and take possession of the Premises or any part thereof, and, at
Landlord's option, remove persons and property therefrom, and such property, if
any, may be removed and stored in a warehouse or elsewhere at the cost of, and
for the account of, Tenant, all without being deemed guilty of trespass or
becoming liable for any loss or damage which may be occasioned thereby, and
Landlord may rent the Premises or any portion thereof as the agent of Tenant
with or without advertisement, and by private negotiations and for any term upon
such terms and conditions as Landlord may deem necessary or desirable in order
to relet the Premises. Landlord shall in no way be responsible or liable for any
part thereof, or for any failure to collect any rent due upon such reletting.
Upon each such reletting, all rentals received by Landlord from such reletting
shall be applied: first, to the payment of any indebtedness (other than any Rent
due hereunder) from Tenant to Landlord; second, to the payment of any costs and
expenses of such reletting, including without limitation, brokerage fees and
attorneys' fees and costs of alterations and repairs; third, to the payment of
Rent and other charges then due and unpaid hereunder; and the residue, if any,
shall be held by Landlord to the extent and for application in payment of future
Rent as the same may become due and payable hereunder. If the rentals received
from such reletting shall at any time or from time to time be less than
sufficient to pay to Landlord the entire sums then due from Tenant hereunder,
Tenant shall pay any such deficiency to Landlord. Such deficiency shall, at
Landlord's option, be calculated and paid monthly.
f. Without liability to Tenant or any other party and without
constituting a constructive or actual eviction, suspend or discontinue
furnishing or rendering to Tenant any property, material, labor, utilities or
other service, which Landlord is obligated to furnish or render, so long as
Tenant is in default under this Lease.
g. Pursue such other remedies as are available at law or in equity.
h. Xxxxxxxx's pursuit of any remedy or remedies, including, without
limitation, any one or more of the remedies stated in the foregoing subparagraph
(a), shall not (I) constitute an election of remedies provided in this Lease or
any other remedy or remedies provided by law or in equity, separately or
concurrently or in any combination, or (ii) serve as the basis for any claim of
actual or constructive eviction, or allow Tenant to withhold any payments under
this Lease.
i. No termination of this Lease prior to the normal expiration
thereof, by lapse of time or otherwise, shall affect Landlord's right to collect
Rent for the period prior to termination thereof. No surrender of the Premises
or any part thereof by delivery of keys or otherwise shall operate to terminate
this Lease unless and until expressly accepted in writing by an authorized
officer of Landlord.
j. The foregoing provisions shall apply to any renewal or
extension of this Lease.
24. NOTICE TO MORTGAGEE. Prior to the exercise by Tenant of any remedy
afforded for Landlord's default hereunder, Tenant shall give the holder of any
Mortgage written notification of such default by Landlord and thirty (30) days
within which to cure the same; provided, Xxxxxx's obligation hereunder is
limited to those Mortgage holders of which it has received written notice.
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25. HAZARDOUS SUBSTANCES. Tenant represents and warrants that it will not,
on or about the Premises, make, store, use, treat, transport or dispose of any
hazardous or toxic waste, contaminants, oil, radioactive or other materials the
removal of which is required or the maintenance of which is prohibited,
regulated (unless such regulations are adhered to and Landlord is notified
thereof) or penalized by any local, state or federal agency, authority or
governmental unit.
26. SIGNAGE. Tenant shall not install or maintain any signs visible from
outside the Premises except in accordance with the Rules and Regulations. Tenant
shall be responsible to Landlord for any damage caused by the installation, use
or removal of any sign.
27. ATTORNEY'S FEES. In the event that litigation results from an attempt
by either party hereto to enforce its rights under this Lease, the prevailing
party in such litigation shall be entitled to reimbursement by the
non-prevailing party for any and all reasonable attorneys' fees, and expenses
incurred in connection with such enforcement. Provided, further, in the event
that Landlord utilizes services of an attorney to collect rent due and payable
hereunder Landlord shall further be entitled to collect from Tenant fifteen
percent (15%) of the Rent so collected as attorney's fees. Additionally, Xxxxxx
agrees to reimburse Landlord for any and all reasonable costs and expenses
(including attorneys' fees) which Landlord may incur or pay in connection with
negotiations in which Landlord shall become involved through or on account of
the Lease or in connection with any request by Tenant for review or approval by
Xxxxxxxx, provided, however, that this obligation shall not apply to any
negotiations between Landlord and Tenant respecting this agreement or any
renewals thereof.
28. TIME OF ESSENCE. Time is of the essence of this Lease.
29. LANDLORD AND TENANT RELATIONSHIP. This Lease shall create the
relationship of landlord and tenant between Landlord and Tenant; no estate shall
pass out of Landlord; and Xxxxxx has only a usufruct not subject to levy and
sale.
30. SALE BY LANDLORD. In the event of any sale, conveyance, transfer or
assignment by Landlord of its interest in and to the Premises, all obligations
and liabilities under this Lease of the party so selling, conveying,
transferring or assigning the Premises arising after the date of such
disposition shall terminate. Tenant shall thereafter look only and solely to the
party to whom or which the Premises were sold, conveyed, transferred, or
assigned for performance of all of Landlord's duties and obligations under this
Lease, including the return of any Security Deposit.
31. SURRENDER OF THE PREMISES. At the termination of this Lease; Xxxxxx
shall surrender the Premises and keys thereof to Landlord in at least as good a
condition as on the Commencement Date, excepting only ordinary wear and tear and
damage arising from any cause not required to be repaired by Tenant.
32. PARTIES. "Landlord" as used in this Lease shall include Landlord's
assigns and successors in title to the Premises. "Tenant" shall include Tenant
and, if this Lease shall be validly assigned or the Premises sublet, shall
include such assignee or subtenant, it's successors and permitted assigns.
"Landlord" and "Tenant" shall include male and female, singular and plural,
corporation, partnership or individual, as may fit the particular parties.
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33. ESTOPPEL CERTIFICATE. At any time and from time to time, Tenant,
within ten (10) days of written request therefore, shall execute, acknowledge
and deliver to Landlord a certificate evidencing whether or not (i)this Lease is
in full force and effect; (ii) this Lease has been amended in any way; (iii)
there are any existing defaults on the part of Landlord hereunder, to the
knowledge of Tenant, and specifying the nature of such defaults, if any; (iv)
the date to which Rent and other amounts due hereunder, if any, have been paid;
and (v) such other matters requested by Xxxxxxxx. Each certificate delivered
pursuant to this paragraph may be relied on by any prospective purchaser of the
Building or transferee of Landlord's interest hereunder or by any holder or
prospective holder of any mortgage instrument or deed to secure debt now or
hereafter encumbering the Building. Xxxxxx's failure to deliver such statement,
in addition to being a default hereunder, shall be deemed to establish
conclusively that this Lease is in full force and effect except as declared by
Landlord, that Landlord is not in default of any of its obligations under this
Lease, and that Landlord has not received more than one month's rent in advance.
34. RELOCATION. If the Premises have a rentable area of less than 25% of
the Building floor area, at Landlord's option, to be exercised by notice to
Tenant specifying the date of relocation, Landlord may designate any other space
in the Building or the Project to be occupied by Tenant in lieu of the Premises,
provided that said other space is of substantially equal size and area. Landlord
shall be responsible for the reasonable costs and expenses related to Xxxxxx's
move as well as the expense of any renovation or alterations necessary to make
the new space substantially conform to layout and appointment with the original
Premises.
35. SUCCESSORS AND ASSIGNS. The provisions of this Lease shall inure to
the benefit of and be binding upon Landlord and Xxxxxx and their respective
successors, heirs, legal representatives and assigns, subject, however, in the
case of Tenant, to the restrictions on assignment and subletting contained in
this Lease.
36. LIMITATION OF LIABILITY. Landlord's obligations and liability to
Tenant with respect to this Lease shall be limited solely to Landlord's interest
in the Project, and neither Landlord, nor any joint venturer, partner, officer,
director or shareholder of Landlord or any of the joint venturers of Landlord
shall have any personal liability whatsoever with respect to this Lease.
37. RULES AND REGULATIONS. Xxxxxx accepts the Premises subject to and
hereby agrees with Landlord to abide by the Rules and Regulations attached to
this Lease and incorporated herein by reference, together with such additional
Rules and Regulations or amendments thereto as may hereafter from time to time
be reasonably established by Xxxxxxxx, and such additions or amendments shall be
binding on Tenant upon receipt of same by Xxxxxx.
38. RIGHT OF ENTRY. Landlord shall have the right, but not the obligation,
to enter the Premises at reasonable hours to exhibit same to prospective
purchasers or tenants; to inspect the Premises to see that Tenant is complying
with all Tenant's obligations hereunder; to make repairs required of Landlord
under the terms of this Lease or repairs or modifications to any adjoining
space; and for any other reasonable purpose.
39. NOTICES. Any notice required or permitted to be given hereunder shall
be in writing and either personally delivered, sent by U.S. Certified or
Registered Mail, return receipt requested, postage prepaid, or sent by Federal
Express, or any similar service, to the party being given such notice at the
following addresses:
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LANDLORD: AP Southeast Portfolio Partners, LP
0000 Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
TENANT: AmeriQuest Technologies, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
The time period in which a response to any notice, demand or request must be
given, if any, shall commence to run from the date of receipt of the notice,
demand or request by the addressee thereof. Rejection or failure to claim
delivery of any such notice, demand or request, or the inability to deliver
because of changed address of which no notice was given, shall be deemed to be
receipt of the notice, demand or request as of the date of deposit in the United
States Mail or the date of attempted personal delivery, as the case may be. By
giving at least thirty (30) days written notice thereof, any party shall have
the right from time to time and at any time to change their respective
addresses.
40. HOLDING OVER. If Tenant remains in possession of the Premises after
expiration of the Lease Term, with Xxxxxxxx's acquiescence and without any
distinct agreement of the parties, Tenant shall be a tenant at will at a rental
rate equal to two times the rate in effect at the end of this Lease (in addition
to all Additional Rent). There shall be no renewal of the Lease by operation of
law.
41. MISCELLANEOUS. This Lease contains the entire agreement of Landlord
and Tenant and no representations or agreements, oral or otherwise, between the
parties not embodied herein shall be of any force or effect. No failure of
Landlord to exercise any power given Landlord hereunder, or to insist upon
strict compliance by Tenant of any obligation hereunder, and no custom or
practice of the parties at variance with the terms hereof, shall constitute a
waiver of Landlord's right to exercise any right hereunder or demand exact
compliance with the terms hereof. If any clause or provision of this Lease is
illegal, invalid or unenforceable under applicable present or future laws or
regulations effective during the term of this Lease, the remainder of this Lease
shall not be affected. In lieu of each clause or provision of this Lease which
is illegal, invalid or unenforceable, there shall be added as a part of this
Lease a clause or provision as nearly identical as may be possible and as may be
legal, valid and enforceable. This Lease shall be governed by, construed under
and interpreted and enforced in accordance with the laws of the State of
Georgia. Neither this Lease, nor any memorandum of this Lease or reference
hereto, shall be recorded by Tenant without Xxxxxxxx's consent endorsed thereon.
Landlord shall be excused from the performance of any of its obligations under
this Lease for the period of any delay resulting from any cause beyond its
control, including, without limitation, all labor disputes, governmental
regulations or controls, fires or other casualties, inability to obtain any
material or services or acts of God.
42. DISCLAIMER. Tenant has made its own independent inspection and review
of the premises and the terms and conditions of this Lease and acknowledges and
agrees that Tenant has not, in any way, relied upon any brochure, literature,
representation, guaranty or warranty (whether express or implied, oral or
written) made by Landlord or any agent or representative or employee or attorney
on behalf of Landlord in connection with any aspect of the Leased Premises or
the Project or the terms and conditions of the Lease.
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43. SPECIAL STIPULATIONS. In the event any Special Stipulations are
attached to this the terms thereof shall control in the event of a conflict
between the provisions of this and the provisions thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be
executed, under seal, in their respective names and on their behalf by their
duly authorized officials, the day and year indicated below.
"LANDLORD"
AP Southeast Portfolio Partners,
By: Highwoods Properties, Inc., general
partner
______________________________________
______________________________________
"TENANT"
AmeriQuest Technologies, Inc.
By: _________________________________
Its: _________________________
Attest: ______________________
Its: _________________________
_______________________________
(CORPORATE SEAL)
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RULES AND REGULATIONS
SIGN DISPLAY. Tenant will provide its own signage for the Premises. Such
signage will be coordinated throughout the park for uniformity and
attractiveness. No sign, tag, label, picture, advertisement or notice shall be
displayed, distributed, inscribed, painted or affixed by Xxxxxx on any part of
the outside or inside of the Building or of the Premises without the prior
written consent of Landlord. All permitted signage shall be maintained in
compliance with applicable governmental rules and regulations, and all
restrictive covenants, governing such signs. Tenant shall be responsible for any
damage caused by the installation, use or removal of any sign. Landlord may
require Tenant to remove all signage at the termination of the Lease and to
repair any damage occasioned by such removal.
DRIVES AND PARKING AREAS. All parking shall be within the property
boundaries and within marked parking spaces. There shall be no on-street parking
and at no time shall any Tenant obstruct drives and loading areas intended for
the use of all Tenants. The drives and parking areas are for the joint and
nonexclusive use of Landlord's tenants, and their agents, customers and
invitees, unless specifically marked. In the event Tenant, its agents,
customers, and/or invitees use a disproportionate portion of the parking,
Landlord shall have the right to restrict Tenant, its agents, customers and/or
invitees to certain parking areas. Tenant shall not permit any fleet trucks to
park overnight in the Building's parking areas.
STORAGE AND LOADING AREAS. Unless specifically approved by Landlord in
writing, no materials, supplies or equipment shall be stored anywhere except
inside the Premises. In no event shall Tenant cause or allow any outside storage
of trash, refuse or debris, whether in the area of the dumpster or otherwise.
LOCKS. No additional locks shall be placed on the doors of the Premises by
Tenant nor shall any existing locks be changed unless Landlord is immediately
furnished with two keys thereto. Landlord will, without charge, furnish Tenant
with two keys for each lock on the entrance doors when Tenant assumes
possession, with the understanding that at the termination or expiration of the
term of the Lease the keys shall be returned.
CONTRACTORS AND SERVICE MAINTENANCE. Tenant will refer all contractors,
contractor's representatives and installation technicians rendering any service
on or to the Premises for Tenant to Landlord for its approval and supervision
before performance of any service. This provision shall apply to all work
performed in the Building, including, but not limited to, installation of
electrical devices and attachments and installations of any nature affecting
floors, walls, woodwork, trim, windows, ceilings, equipment or any other
physical portion of the Building.
LODGING. No Tenant shall at any time occupy any part of the Building as
sleeping or lodging quarters.
REGULATION OF OPERATION AND USE. Tenant shall not place, install or
operate on the Premises or in any part of Building, any engine, stove or
machinery, or conduct mechanical operations or cook thereon or therein, or place
or use in or about the Premises any explosives, gasoline, kerosene, oil, acids,
caustics or any other flammable, explosive or hazardous material without the
prior written consent of Landlord.
WINDOW COVERINGS. Windows facing the Building exterior shall at all times
be wholly clear and uncovered (except for such blinds or curtains or other
window coverings Landlord may provide or approve) so that a full unobstructed
view of the interior of the Premises may be had from outside the Building.
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MODIFICATIONS. Landlord shall have the right from time to time to
modify, add to or delete any of these Rules and Regulations at Landlord's
sole discretion.
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SPECIAL STIPULATIONS
RENTAL SCHEDULE
The following schedule is the Base Rent payable per Paragraph 3a. of this
lease:
Beginning September 15, 1997 through September 30, 1997 the sum of one
thousand four hundred sixty five and 19/100 Dollars ($1,465.18).
Beginning October 1, 1997 through September 30, 1998 the monthly sum of
three thousand three hundred eighty one and 19/100 Dollars ($3,381.19) for
a total annual base rental of forty thousand five hundred seventy-four and
25/100 Dollars ($40,574.25).
Beginning October 1, 1998 through September 30, 1999 the monthly sum of
three thousand five hundred sixteen and 44/100 Dollars ($3,516.44) for a
total annual base rental of forty two thousand one hundred ninety-seven
and 22/100 Dollars ($42,197.22).
Beginning October 1, 1999 through September 30, 2000 the monthly sum of
three thousand six hundred fifty-six and 69/100 Dollars ($3,656.69) for a
total annual base rental of forty three thousand eight hundred eighty and
30/100 Dollars ($43,880.30).
AS-IS CONDITION
Except for the items detailed on Exhibit "D" attached hereto, Xxxxxx agrees to
accept the leased premises in an "as-is" condition. Xxxxxxxx agrees that the
HVAC, doors, electrical and plumbing fixtures will be in a satisfactory working
condition at the time of occupancy and warrants their condition for ninety (90)
days.
DISCLOSURE STATEMENT
REAL ESTATE BROKERS AND AGENTS. Tenant warrants and represents that Xxxxxx has
had no dealings with any real estate broker or agent, other than AP SOUTHEAST
PORTFOLIO PARTNERS, LP and LAVISTA ASSOCIATES, in connection with the
negotiation or execution of this Lease. LAVISTA ASSOCIATES has represented
Tenant in this transaction and will be paid a commission by Landlord. Xxxxxx
agrees to indemnify and hold Landlord harmless from and against any and all
cost, expense or liability for commissions or other compensation or fees claimed
by any other broker or agent acting or claiming to act for Tenant with respect
to this Lease.
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EXHIBIT "B"
Legal Description
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EXHIBIT "D"
LANDLORD IMPROVEMENTS
It is understood and agreed by both parties that the following improvements will
be provided by the Landlord:
Landlord will provide a $3.OO/psf allowance for paint, carpet and minor
modifications that conform to the building standards.
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