Exhibit 10-3
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: X-POINT CORPORATION, a corporation duly organized and
existing under the laws of the State of Georgia.
LEASED
PREMISES: (a) Address: 0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxx, XX 00000
(b) Suite: N/A
(c) Rentable Area: 25,538 square feet
(d) Pro Rata Share: 100%
(e) Project: River Green
TERM: Three (3) years
COMMENCEMENT DATE: December 1, 1996
TERMINATION DATE November 30,1999
BASE RENT
(FIRST YEAR): $210,688.50
BASE YEAR: 191
SECURITY DEPOSIT: $17,557.37
TENANT'S AGENT: Xxxxx Xxxxxxxx
Corporate Property Advisors
Xxx Xxx Xxxxxx
Lavista Associates, Inc.
X-POINT CORPORATION
LEASE AGREEMENT
TABLE OF CONTENTS
SECTION PAGE
1.01 LEASED PREMISES...................................................4
2.01 TERM..............................................................4
3.01 RENTAL............................................................4
4.01 DELAY IN DELIVERY OF POSSESSION...................................5
5.01 USE OF LEASED PREMISES............................................5
6.01 UTILITIES.........................................................6
7.01 ACCEPTANCE OF LEASED PREMISES.....................................6
8.01 ALTERATIONS, NIECHANICS'LIENS.....................................7
9.01 QUIET CONDUCT/QUIET ENJOYNENT.....................................7
10.1 FIRE INSURANCE, HAZARDS...........................................7
11.1 LIABILITY INSURANCE...............................................8
12.1 INDENIPMCATION BY TENANT..........................................8
13.1 WAIVEROFCLAIMS....................................................9
14.1 REPAIRS...........................................................9
15.1 SIGNS, LANDSCAPING...............................................10
16.1 ENTRY BY LANDLORD................................................10
17.1 TAXES AND INSURANCE INCREASE.....................................10
18.1 ABANDONNIENT.....................................................11
19.1 DESTRUCTION......................................................12
20.1 ASSIGNMENT AND SUBLETTING........................................12
21.1 INSOLVENCY OF TENANT.............................................13
22.1 BREACH BY TENANT.................................................13
23.1 ATTORNEY'S FEES..................................................14
24.1 CONDEMNATION.....................................................15
24.1 NOTICES..........................................................15
25.1 WAIVER...........................................................16
26.1 EFFECT OF HOLDING OVER...........................................16
27.1 SUBORDINATION....................................................16
28.1 ESTOPPEL CERTIFICATE.............................................16
29.1 PARKING..........................................................17
30.1 MORTGAGEE PROTECTION.............................................17
31.1 PROTECITVE COVENANTS.............................................17
32.1 RELOCATION.......................................................17
33.1 BROKERAGE COMMISSIONS............................................17
34.1 MISCELLANEOUS PROVISIONS.........................................18
EXHIBITS:
EXHIBIT "A" SITE PLAN
EXHIBIT "B" FLOOR PLAN OF THE LEASE PREMISES
EXHIBIT "C" TENANT'S ACCEPTANCE OF PREMISES
EXHIBIT "D" SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
EXHIBIT "E" SPECIAL STIPULATIONS
EXHIBIT "F" GUARANTY
STATE OF GEORGIA
GWINNETT COUNTY
This Lease Agreement is made this 18th day of March, 1996, by and
between WEEKS REALTY, L.P., a Georgia limited partnership, hereinafter referred
to as "Landlord", and X-POINT CORPORATION, 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 25,538 rentable square feet of office/warehouse at 0000 Xxxxx
Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxx 00000, Xxxxxxxx Xxxxxx, in River Green, 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 three (3)
years, commencing on December 1, 1996, and continuing until midnight on November
30, 1999.
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:
Year 1 $17,557.37/month $210,688.50/ year
Year 2 $18,089.41/ month $217,073.00/ year
Year 3 $18,621.45/month $223,457.50/ year
due on or before the first day of each calendar month as set forth above 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 rental payments not received by Landlord within
five (5) calendar days of the due date thereof. 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 Seventeen Thousand Five Hundred Fifty Seven and
37/100 ($17,557.37) Dollars to be applied as first month's rental. At
Commencement Date, Tenant shall deposit an amount equal to Seventeen Thousand
Five Hundred Fifty Seven and 37/100 ($17,557.37) Dollars to be held as a
refundable security deposit.
3.02 Tenant accepts the Leased Premises AS IS and WHERE IS except
however for latent defects and damages other than reasonable wear and tear.
3.03 (a) In addition to the base rental, Xxxxxx agrees to pay Landlord
as additional rental, the amounts described in subparagraph (b) below. Each year
during the term hereof,
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Landlord shall give Tenant written notice of its estimate of the amount of
common area maintenance charges and common area utility charges for the
Leased Premises and its pro rata share of common area assessments for the
Project for the calendar year (collectively "Charges"). Tenant shall,
thereafter, during that calendar year, pay to Landlord the amount set forth
in said statement at such time as its monthly installments 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 con-ting due under this paragraph. Notwithstanding the
provisions of this Section 3.03, in no event shall any increase in the CAM
Charges exceed ten percent (10%) over CAM Charges for the preceding year.
(b) Landlord agrees to maintain those areas around the Building
including parking areas, planted areas, signs and landscaped areas which are
from time to time designated by Landlord. In addition, the Development Review
Commission under the Protective Covenants (hereinafter defined) shall maintain
the common areas of the Project in good repair and in a xxxx condition. Xxxxxx
agrees to pay to Landlord as additional rental all ground maintenance charges
and other common area charges and expenses for the Building and the Land, and
its pro rata share of common area assessments for the Project ("CAM Charges").
The term "grounds maintenance" shall include, without limitation, all
landscaping, planting, lawn and grounds care, irrigation costs, all repairs and
maintenance to the grounds, signs and other common areas around the Budding and
in the Project and to all sidewalks, driveways, loading areas and parking areas.
CAM Charges shall not include items of a capital nature.
3.04 Xxxxxx agrees to pay as additional rent to Landlord, upon demand,
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 any Federal, State, Municipal or local governmental
authorities in connection with the use or occupancy of the Leased Premises.
DELAY IN DELIVERY OF POSSESSION
4.01 Intentionally Deleted.
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 Landlords prior written
consent. 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 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 xxxx and unobstructed. On or
before the Commencement Date, Tenant shall take possession of, and, thereafter,
continuously occupy the
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Leased Premises during the term of this Lease, and operate thereon the normal
business operations of Tenant.
5.02 Tenant shall, at Tenant's 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 lender or governmental
agency shall ever require testing to ascertain whether or not there has been any
release of hazardous materials 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 best 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.
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, garbage collection 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, except for latent defects and damages other
than reasonable wear and tear, Tenant 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. Upon delivery of
possession of the Leased Premises to Tenant, Xxxxxx agrees to execute
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and deliver to Landlord a Xxxxxx's Acceptance of Premises, in the form
attached hereto as Exhibit "C".
ALTERATIONS, MECHANICS' LIENS
8.01 Alterations 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 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 Notwithstanding anything in paragraph 8.02 above, Tenant may, upon
written consent of Landlord, 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 only excepted.
Tenant shall keep the Leased Premises, the building and property in which the
Leased Premises are situated free from any hens arising out of any work
performed for, materials furnished to, or obligations incurred by Xxxxxx. All
such work provided 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
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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.
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 One Million Dollars ($1,000,000.00) 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) in respect to
injuries to or death of any one person, and in the amount of not less than Fifty
Thousand Dollars ($50,000.00) per occurrence in respect to damage to property,
such limits to be for any greater amounts as may be reasonably indicated by
circumstances from fame to time existing. Tenant shall furnish Landlord with a
certificate of such policy (which certificate shall contain the insurer's waiver
of subrogation rights exercisable against the Landlord) 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 BY TENANT
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
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failure of Landlord to observe any of the terms and conditions of this Lease
where such failure has persisted for an unreasonable period of time after
written notice of such failure, or those arising from negligence of Landlord
or its employees or agents, and Tenant hereby waives all claims in respect
thereof against Landlord.
12.02 Landlord shall indemnify and hold harmless Tenant against and
from any and all claims for bodily injury, death or property damage, to the
extent caused by Landlord's negligence or misconduct, or arising from the
conduct of its business or from any activity, work or thing done by the Landlord
within the Building or on the Land.
12.03 The obligations of Landlord and Tenant under this paragraph
arising by reason of any occurrence taking place during the term of this 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.
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 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 ten-n of the Lease. Xxxxxxxx agrees to
provide to Tenant at the commencement date of the Lease, a letter certifying
that there are no termites present in the Building or that the Building has been
treated for termites. 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 kept reasonably clean. 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 complete 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
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to Landlord any defective condition known to it which Landlord is required to
repair, and Landlord shall move with reasonable diligence to repair such
item. Failure to report such defects shall make Tenant responsible to
Landlord for any 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. At Landlord's sole expense, Xxxxxxxx agrees to
inspect the HVAC system in the Leased Premises at Lease commencement to insure
it is in good working order and will provide Tenant with a copy of such
inspection report.
SIGNS, LANDSCAPING
15.01 Landlord shall have the right to control landscaping and Tenant
shall 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 place no exterior signs on the Leased Premises without the prior
written consent of Landlord. Any signs not in conformity with the Lease may be
immediately removed by Landlord. Landlord shall provide, at its cost and
expense, building standard signage.
ENTRY BY LANDLORD
16.01 Tenant shall permit Landlord and Landlord's agents to enter the
Leased Premises at all reasonable times 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 placing upon the building any usual or
ordinary "for sale" signs, 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. Landlord shall maintain
confidentiality of any information it discovers during its entry into the Leased
Premises.
TAXES AND INSURANCE INCREASE
17.01 Tenant shall pay before delinquency any 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.
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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 1997. 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 also
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. 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 1998 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 is due to an increase in the valuation of the
building, or in the applicable rate of insurance, then Tenant agrees to pay
Landlord as additional rental, the increase in said insurance premiums over the
base amount paid in the year 1997. 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. 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 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 Tenant has not paid enough, Tenant shall pay the remainder to
Landlord within fifteen (15) days following receipt of a statement from
Landlord.
17.06 The provisions of paragraphs 17.01, 17.02, 17.03, 17.04
and 17.05 hereof shall survive the expiration or earlier termination of
this Lease.
ABANDONNIENT
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18.01 Tenant shall not vacate nor abandon the Leased Premises at any
time during the term of this Lease, and if Tenant shall abandon, vacate 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.
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
judgment, be restored within one hundred eighty (180) days of the date of such
damage or destruction, this Lease shall terminate as of the date of such
destruction, and all rent and other sums payable by Tenant hereunder shall be
accounted for as between Landlord and Xxxxxx as of that date. 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 eighty (180)
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 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. Tenant's obligation to pay Base Rent shall xxxxx until Landlord has
repaired, restored, rebuilt, reconstructed or replaced the Leased Premises, as
required herein, in 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 180-day
period, terminate this Lease by written notice, to Tenant.
ASSIGNMENT AND SUBLETTING
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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.
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 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 attorneys' 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
Xxxxxx for the benefit of creditors, or (c) any action taken or suffered by
Xxxxxx 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.
BREACH BY TENANT
22.01 In the event (i) Tenant shall default in the payment of Base Rent
or any other payment to be made by Tenant hereunder and Tenant shall not cure
such failure within ten (10) days after Landlord gives Tenant written notice the
thereof, or (ii) Tenant shall violate or breach, or shall fail fully and
completely to observe, keep, satisfy, perform and comply with, any agreement,
term, covenant, condition, requirement, restriction or provision of this Lease
(other than payment of Base Rent or any other payment to be made by Tenant), and
shall not cure such failure within thirty (30) days after Landlord gives Tenant
written notice thereof, 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
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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 Notwithstanding any language contained in Section 22.01 or
elsewhere in the Lease to the contrary, Landlord agrees that in the event of a
default by Xxxxxx, Landlord's rights with regard to the reletting of the
premises shall be to repair the premises to their original condition less normal
wear and tear. There shall be expressly excluded any costs for altering the
premises which costs will include leasehold improvements and/or tenant
allowances as well as concessions of free rent to a new tenant.
22.03 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 be 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 Xxxxxx 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 fun liquidated damages, as permitted by Section 13-6-7 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.
If, without fault, either Landlord or Tenant is made a party to any litigation
instituted by or against the other, the other will indemnify the faultless one
against all loss,
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liability, and expense, including reasonable attorneys' fees and court costs,
incurred by it in connection with such litigation.
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 or 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 biking. 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 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; provided,
however, that Tenant shall make no claim which shall diminish or adversely
affect any award claimed or received by Landlord.
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 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:
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(a) To Tenant at the Leased Premises at 0000 Xxxxx Xxxxx Xxxxxxx,
Xxxxxx, Xxxxxxx 00000; with a copy to Xxxx Xxxxx, Xxxxxx
Xxxxxxx & Xxxxxx at 0000 Xxxxxxx Xxxxxxxxx Xxxxxx, 0000
Xxxxxxxxx Xxxx, X.X., Xxxxxxx, Xxxxxxx 00000
(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 term, covenant, or condition of this Lease, other than the
failure of Tenant to pay the particular rental so accepted, regardless of
Landlords 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 150% of the rent payable pursuant
to subparagraph 3.01.
SUBORDINATION
28.01 This Lease, at Landlord's option, shall be subordinate to any
ground lease, 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.
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 ground
lease, mortgage, deed of trust, or security deed, as the case may be, including
specifically a 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 Tenant's name, place and stead, to
do so. If requested to do so, Xxxxxx agrees to attorn to any person or other
entity that acquires title to the real property encompassing the Leased
Premises, whether through judicial foreclosure, sale under power, or otherwise,
and to any assignee of such person or other entity.
ESTOPPEL CERTIFICATE
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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 or claimed
default hereunder by Landlord 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 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
Tenant's 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 visits 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. 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 River Green.
MORTGAGEE 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.
PROTECTIVE COVENANTS
32.01 This Lease is subject to the Protective Covenants (the
"Protective Covenants") of River Green, 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 Tenant's Agent (collectively, "Agent") shall be entitled to
receive a commission from Landlord in the amounts, and upon the terms and
conditions, contained in a commission agreement between Landlord and such
parties.
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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
comn-tission or other fee resulting from the execution of this Lease; 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's 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 headings 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.
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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 Xxxxxx. In the event of
any conveyance by Landlord of its interest in and to the Leased Premises, the
Building or the Land, all obligations 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 Landlords 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, Xxxxxx 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 Building.
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
presence of: WEEKS REALTY, L.P.,
a Georgia limited partnership
________________________ By: Weeks Corporation
a Georgia corporation,
its sole general partner
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___________________________ By: ___________________________
Notary Public Name: ___________________________
Its: ___________________________
Signed, sealed and delivered TENANT:
as to Landlord, in the
presence of: X-POINT CORPORATION
___________________________ By: ___________________________
Name: ___________________________
Its: ___________________________
___________________________
Notary Public
ATTEST:
By: ___________________________
Name: ___________________________
Its: ___________________________
[Corporate Seal]
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