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:
LESSOR: ASC NORTH XXXXXX ASSOCIATES JOINT VENTURE, a Georgia joint
venture, comprised of New England Mutual Life Insurance
Company, a Massachusetts corporation, and Xxxxxxxx &
Xxxxxxxx/Xxxxxxx Joint Venture, a Georgia joint venture, as
its sole joint venture partners with its principal office
located at P.O. Box 720462, Atlanta, Georgia 30358-2462
LESSEE: MICROSOUTH, INC., a corporation duly organized and existing
under the laws of the State of Georgia.
PREMISES:
(a) Suite: J
(b) Rentable Area: 10,447 square feet
(c) See Floor Plan attached hereto as Exhibit "A"
BUILDING: 000 Xxxxxxx Xxxxxxx
Xxxxx X
Xxxxxxx, XX
COMMENCEMENT DATE: May 1, 1992
TERMINATION DATE: April 30, 1995
FIRST LEASE YEAR BASE RENT (PER YEAR): $41,788.00
BASE YEAR: 1992
BASE YEAR TAXES: 1992
BASE YEAR INSURANCE: 1992
SECURITY DEPOSIT: $3,482.33
AGENT: The Xxxxxxxxx York Co.
Xxxx Xxxxxxxxx
LEASE
THIS LEASE, made on the date of last execution and acceptance hereof by
Lessor or Xxxxxx, as the case may be, by and between Lessor and Lessee:
WITNESSETH:
1. Premises. Lessor does hereby rent and lease to Lessee, and Xxxxxx does
hereby rent and hire from Lessor, that certain space containing approximately
10,447 rentable square feet, as shown on the floor plan attached hereto as
Exhibit "A", which is made a part hereof by this reference (said space being
herein referred to as the "Premises"). The Premises are located in Lessor's
building (herein referred to as the "Building") known as 000 Xxxxxxx Xxxxxxx,
Xxxxx X, Xxxxxxx, Xxxxxxx. No easement for light or air is included in the
Premises.
2. Lease Term. (a) The term of this Lease shall be for a period of three
(3) years, commencing on May 1, 1992 (herein referred to as the "Commencement
Date"), and ending on April 30, 1995 at midnight (herein referred to as the
"Termination Date"). All references to the "term of this Lease" refer to the
term of the Lease as it is renewed, extended or sooner terminated.
(b) If Lessor is unable to give possession of the Premises to Lessee on
the Commencement Date because (i) the Premises are not sufficiently completed to
render the Premises ready for occupancy, or (ii) a tenant or occupant remains in
possession of the Premises, or (iii) for any other reason, then Lessor shall not
be liable for such failure, and no such failure shall affect the validity of
this Lease; provided, however, Lessee shall not be required to pay rent for any
period during which Lessor is prevented from giving possession of the Premises
to Lessee.
(c) Upon delivery of possession of the Premises to Xxxxxx, Xxxxxx agrees
to execute and deliver to Lessor a Xxxxxx's Acceptance of Premises, in the form
attached hereto as Exhibit "C."
3. Base Rent. (a) Lessee shall pay to Lessor at Lessor's office, or such
other place as Lessor shall from time to time designate in writing, an annual
Base Rent of $41,788.00 in equal monthly installments of $3,482.33 to be paid
without notice, demand, deduction, or set-off, on the first (1st) day of each
month in advance.
(b) As used herein, the term "Lease Year" shall mean each term of twelve
(12) consecutive calendar months commencing on the Commencement Date or on the
first (1st) day of the first (1st) calendar month following the Commencement
Date, if the Commencement Date does not fall on the first (1st) day of a
calendar month; provided, however, that the first (1st) Lease Year shall include
the partial month, if any, caused by the Commencement Date's falling on other
than the first (1st) day of a calendar month.
(c) Rental payments not received by Lessor within five (5) calendar days
of the due date thereof shall be subject to a late charge due and payable by
Lessee to Lessor on the sixth (6th) calendar day after the due date thereof in
an amount equal to five (5%) percent of such past due rental.
(d) As used in this Lease, the term "rent" or "rental" shall include all
amounts payable pursuant to this Paragraph 3 and all other additional charges or
sums payable to Lessor hereunder.
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(e) Lessee shall pay the first (1st) month's Base Rent on the date of
Xxxxxx's execution of this Lease.
4. Additional Rent. In addition to the Base Rent, Lessee shall pay to
Lessor, as additional rent, the amounts described in subparagraphs 4(a), 4(b)
and 4(c) below:
(a) (i) Commencing January 1 following 1992 (the "Base "Year) or on the
Commencement Date, whichever is later, and continuing thereafter during each
year of the term of this Lease, in the event Lessor determines that Lessor's
cost of "taxes and assessments," as hereinafter defined, will increase above an
amount equal to the greater of (A) the actual cost for taxes and assessments for
the Base Year or (B) $0.45 per square foot contained in the Building, then
Lessee shall, in equal monthly installments with the Base Rent, pay to Lessor as
additional rent the pro rata amount of such anticipated increase attributable to
the Premises. The term "taxes and assessments" shall include every type of tax,
charge or impost now or hereafter assessed against the Building or the Land,
including, but not limited to, ad valorem taxes, special assessments and
governmental charges, excepting only income taxes imposed upon Lessor; the term
"taxes and assessments" shall include any tax levied or imposed upon or assessed
against the rent reserved hereunder or income arising herefrom to the extent the
same is in lieu of or a substitute for any of the taxes and assessments
hereinabove described; 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 Lessor in contesting any
taxes or the assessed valuation of all or any part of the Building or the Land.
Provided, however, that the taxes and assessments for any particular year shall
not include increases in taxes and assessments for previous years, even though
such increases are assessed or are payable in such particular year.
(ii) Prior to January 1 of each calendar year (except the Base Year)
during the term of this Lease, Lessor shall estimate the increase for that
calendar year in taxes and assessments and shall deliver to Lessee a statement
of Xxxxxx's share of such increase. Lessee shall deliver the prorated, monthly
amount of such increase (for the period prior to receipt of such statement) to
Lessor with the next regular payment of Base Rent. Promptly following receipt of
the actual tax bills, Lessor shall notify Lessee of the actual increase and any
adjustment necessary shall be made to the additional rental payments next coming
due under this subparagraph 4(a).
(iii) Lessee shall pay, or cause to be paid, before delinquency, any
and all taxes levied or assessed during the term of this Lease, upon all
improvements installed by Lessee in the Premises, Xxxxxx's other leasehold
improvements, equipment, furniture, fixtures and any other personal property
located on the Premises. In the event any or all of said improvements, Xxxxxx's
other leasehold improvements, equipment, furniture, fixtures and other personal
property shall be assessed and taxed with the Building or the Land, Lessee shall
pay to Lessor its share of such taxes within ten (10) calendar days after
delivery to Lessee by Lessor of a statement in writing setting forth the amount
of such taxes attributable to the above property.
(b) (i) Commencing January 1 following 1992 (the "Base Year") or on the
Commencement Date, whichever is later, and continuing thereafter during each
year of the term of this Lease, in the event Lessor determines that Lessor's
cost of "insurance," as hereinafter defined, will increase above an amount equal
to the greater of (A) the actual cost for insurance for the Base Year, or (B)
$0.03 per square foot contained in the Building, then Lessee shall, in equal
monthly installments with the Base Rent, pay to Lessor as additional rent the
pro rata amount of such anticipated increase attributable to the Premises. The
term "insurance" shall include all fire and extended casualty insurance on the
Building and all liability coverage on the common areas of the Building, and the
grounds, sidewalks, driveways and parking areas on the Land, together with such
other insurance protection, including, but not limited to, business interruption
insurance, as are from time to time obtained by Lessor.
(ii) Prior to January 1 of each calendar year (except the "Base
Year") during the term of this Lease, Lessor shall estimate the increase for
that calendar year in insurance and shall deliver to Lessee a statement of
Xxxxxx's share of such increase. Lessee shall deliver the
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prorated, monthly amount of such increase (for the period prior to receipt of
such statement) to Lessor with the next regular payment of Base Rent. Promptly
following receipt of the actual bills for the insurance, Lessor shall notify
Lessee of the actual increase and any adjustment necessary shall be made to
additional rental payments next coming due under this subparagraph 4(b).
(c) (i) The pro rata amount of all common area electrical, grounds
maintenance charges, security services and other common area charges and
expenses for the Building and the Land (the "CAM Charges"), shall be paid by
Lessee to Lessor, as additional rent, as provided in subparagraph (c)(ii) below.
The term "grounds maintenance" shall include, without limitation, all
landscaping, planting, lawn and grounds care, all improvements to the grounds
and other common areas adjacent to the Premises and the Building and to all
sidewalks, driveways, loading areas and parking areas. The CAM Charges shall not
include items of a capital nature.
(ii) Prior to January 1 of each calendar year Lessor shall deliver
to Lessee an estimate of the total CAM Charges for that calendar year and the
amount thereof attributable to the Premises. Lessee shall thereafter, during
that calendar year, pay to Lessor one-twelfth (1/12) of the amount set forth in
said statement at the same time its monthly installments of Base Rent hereunder
are due and payable. In the event the January installment of Base Rent is
already due and payable or has been paid at the time said statement is delivered
to Lessee, Lessee shall, within ten (10) days following receipt of said
statement, deliver to Lessor one-twelfth (1/12) of the amount set forth on said
statement in payment thereof. At such time as Lessor is able to determine the
actual CAM Charges for each calendar year, Lessor shall deliver to Lessee a
statement thereof and, in the event the estimated CAM Charges differ from the
actual CAM Charges, any adjustment necessary shall be made to additional rental
payments next coming due under this subparagraph 4(c).
(d) Xxxxxx's failure to deliver a statement to Lessee prior to January 1
of each year with the estimated additional rent payments due under subparagraphs
(a), (b) and (c) above shall not preclude Lessor from later collecting the past
due amounts shown thereon, all of which shall be paid by Lessee within ten (10)
days following receipt of such statement.
5. Security Deposit. Lessee has concurrently with its execution of this
Lease deposited with Lessor the Security Deposit as security for the full
performance of every provision of this Lease by Xxxxxx. Lessor may apply all or
any part of the Security Deposit to cure any default by Lessee hereunder and
Xxxxxx shall promptly restore to the Security Deposit all amounts so applied
upon invoice therefor. If Lessee shall fully perform each provision of this
Lease, any portion of the Security Deposit which has not been appropriated by
Lessor in accordance with the provisions hereof shall be returned to Lessee,
without interest, within thirty (30) days after the expiration of the term of
this Lease. If Lessor or its managing agent is a licensed real estate broker or
salesman under the laws of the State of Georgia, Lessor or such managing agent
shall have the right (if required by law) to deposit the Security Deposit in an
interest-bearing trust or escrow account. All interest earned on such deposits
shall be paid to Lessor or such managing agent, as directed by Xxxxxx, to defray
the cost of maintaining and administering such account.
6. Utilities. Lessee shall promptly pay all charges for utilities and
other services furnished to the Premises by Lessor or the applicable utility
company, including, but not limited to, gas, water, electricity, fuel, light and
heat, and Lessee shall promptly pay all charges for garbage collection services
and for all other sanitary services rendered to the Premises or used by Lessee
in connection herewith. In the event any utilities furnished to the Premises are
not separately metered, Lessee shall pay to Lessor, as additional rental,
Lessee's pro rata share of the utilities used by Lessee, within ten (10)
calendar days following receipt of a statement showing the amount due. Xxxxxx's
prorated amount shall be determined on the basis of the size of the Premises,
unless Lessor determines that Xxxxxx's use of the Premises justifies a
disproportionate allocation of utility costs to Lessee.
7. Use. The Premises shall be used for general office sales, distribution
and no other purposes. The Premises shall not be used for any illegal purposes;
nor in violation of any
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regulation of any governmental body; nor in any manner to create any nuisance or
trespass; nor in any manner to vitiate the insurance or increase the rate of
insurance on the Premises or on the Building. Xxxxxx agrees to use the Premises
for the purposes herein leased until the expiration of the term of this Lease.
8. Repairs by Lessor. (a) Xxxxxx accepts the Premises in their present
condition and as suited for the uses intended by Xxxxxx, subject only to
Xxxxxx's agreement to complete the Lessor's Work described in Exhibit "A".
Except as otherwise expressly provided in this Lease, Lessor shall not be
required to make any repairs or improvements to the Premises except repairs to
the foundation, exterior walls or roof of the Building as necessary for safety
and tenantability; Lessor's duties shall also include repairs to underground
utility and sewer pipes outside the exterior walls of the Building, or under or
within the floor of the Premises, unless made necessary by the negligence or
misuse of Lessee, its employees or agents.
(b) Lessor shall be responsible for the maintenance of those areas around
the Building, including parking areas, planted areas and landscaping areas which
are from time to time designated by Lessor and open for the joint use by tenants
of the Building or the public.
9. Repairs by Xxxxxx. Lessee shall repair, maintain, replace as necessary
and keep in good, clean and safe repair all portions of the Premises and all
equipment, fixtures and systems therein which are not specifically set forth as
the responsibility of Lessor in Paragraph 8 of this Lease. Lessee's repairs and
replacements shall include without limitation all electrical, plumbing, heating
and air conditioning systems, parts, components and fixtures within or relating
to the Premises; in connection therewith, Lessee shall maintain in force at all
times a maintenance contract for the heating, ventilation and air conditioning
equipment acceptable in form and content to Lessor and with a service
organization acceptable to Lessor. Lessee shall also promptly repair or replace
all partitions and all glass and plate glass within the Premises immediately
when cracked or broken. Lessor gives to Lessee exclusive control of the Premises
and shall be under no obligation to inspect the Premises. Lessee shall at once
report in writing to Lessor any defective conditions known to Lessee which
Lessor is required to repair, and failure to promptly report such defects shall
make Lessee liable to Lessor for any liability incurred by Lessor by reason of
such defects, and Lessee indemnifies and holds harmless Lessor from and against
all loss, cost and damage (including reasonable attorney's fees) arising from or
related to Xxxxxx's failure to so report such defective conditions.
10. Lessor's Finish Work. Xxxxxx agrees that it will finish out the
Premises as depicted and described on Exhibit "A" attached hereto and by this
reference made a part hereof (the "Plans and Specifications"), which were
submitted, reviewed and approved by Xxxxxx and Lessee prior to the execution
hereof. In the event that Lessee shall desire, or Lessor shall find it necessary
to make, any modifications or changes to the Plans and Specifications, the party
desiring or requiring said changes shall give the other party written notice
thereof. No change to the Plans and Specifications shall be effective unless and
until it has been approved in writing by Lessor and Lessee. The Plans and
Specifications, as amended, shall thereafter, for all purposes, be considered
the "Plans and Specifications" hereunder. Notwithstanding the foregoing, Xxxxxx
acknowledges that in the course of construction, certain changes, deviations or
omissions may be required by governmental authorities or job conditions and
Lessee agrees to such changes, deviations or omissions, provided that such
changes, deviations or omissions do not materially alter the value or appearance
of the Premises or materially reduce the quality of materials used in the
construction thereof. Xxxxxx understands and agrees that any plans, renderings
or drawings or similar documents which purport to depict any of the improvements
which comprise the Premises are merely an approximation of, and may not
necessarily reflect, actual, as-built conditions. Xxxxxx agrees to such
modifications, provided that any such modifications to the Plans and
Specifications do not materially affect the value or appearance of the Premises.
Notwithstanding the provisions of Paragraph 9 above, upon completion of
Xxxxxx's work required under this Paragraph 10, Lessor shall guarantee, for the
one-year period following Xxxxxx's acceptance of the Premises, the materials and
workmanship for such work. Upon the expiration of the one-year guarantee period,
Lessor shall, upon Xxxxxx's request, during the
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period of Xxxxxx's possession of the Premises, permit Lessee to jointly exercise
with Lessor the rights and benefits occurring under the warranties, guaranties
and service agreements, if any, covering those portions of the Premises for
which Lessee is responsible under Paragraph 9 hereof.
11. Right of Entry. Lessor shall have the right, but not the obligation,
and upon reasonable notice, to enter the Premises at reasonable hours to exhibit
same to prospective purchasers or tenants; to inspect the Premises to see that
Lessee is complying with all Lessee's obligations hereunder; and to make repairs
required of Lessor under the terms of this Lease or repairs or modifications to
any adjoining space.
12. Lessor's Right to Act for Lessee. If Lessee fails to pay any
additional rent or make any other payment (except Base Rent) or take any other
action when and as required under this Lease, Lessor may, without demand upon
Lessee and without waiving or releasing Lessee from any duty, obligation or
liability under this Lease, pay any such additional rent, make any such other
payment or take any such other action required of Lessee. The actions which
Lessor may take shall include, but are not limited to, the performance of
maintenance or repairs and the making of replacements to the Premises, the
payment of insurance premiums which Lessee is required to pay under this Lease
and the payment of taxes and assessments which Lessee is required to pay under
this Lease. Lessor may pay all incidental costs and expenses incurred in
exercising its rights hereunder, including, without limitation, reasonable
attorneys' fees and expenses, penalties, re-instatement fees, late charges and
interest. All amounts paid by Lessor pursuant to this Paragraph, and all costs
and expenses incurred by Lessor in exercising Lessor's rights under this
Paragraph, shall bear interest at the lesser of (i) eighteen percent (18%) per
annum or (ii) the highest rate permitted under applicable law (the "Default Rate
of Interest"), from the date of payment by Lessor and shall be payable by Lessee
to Lessor upon demand.
13. Default. (a) Each of the following events shall constitute an "Event
of Default" by Lessee under this Lease:
(i) if Lessee shall fail to pay when due any rent or other
payment to be made by Lessee hereunder and shall not cure such failure within
ten (10) days after the due date (as to the scheduled monthly rental payments)
or within ten (10) days after written notice thereof from Lessor (as to
nonscheduled payments), as the case may be; or
(ii) if Lessee 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 the payment of rent or any other payment to be made by
Lessee), and shall not cure such failure within thirty (30) days after Lessor
gives Lessee written notice thereof; or
(iii) if the Premises are deserted or abandoned; or
(iv) if Xxxxxx's interest in the Premises is levied upon and
Xxxxxx fails to have such levy cured, lifted or vacated within thirty (30) days
thereafter; or
(v) if any petition is filed by or against Lessee under any
Section or Chapter of the Federal Bankruptcy Code, and in the case of a petition
filed against Lessee, such petition is not dismissed within sixty (60) days of
such filing; or if Lessee becomes insolvent or transfers property in fraud of
creditors; or if Xxxxxx makes an assignment for the benefit of creditors; or if
a receiver is appointed for any of Lessee's assets.
For the purposes of the Events of Default specified in clause (v)
above, the word "Lessee" shall include, without limitation: (i) any party
comprising Lessee, should more than one person or entity execute this Lease as
Lessee, or any general partner or joint venturer of Lessee or any such party;
and (ii) any person or entity now or hereafter liable, whether primarily,
secondarily or contingently, for the performance of the duties and obligations
of Lessee under this Lease, including without limitation any principal, maker,
endorser, guarantor or surety.
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(b) Upon the occurrence of any Event of Default, Lessor may pursue any one
or more of the following remedies, in addition to any other remedies provided
under this Lease, at law or in equity, separately or concurrently or in any
combination, without any notice (except as specifically provided herein) or
demand whatsoever and without prejudice to any other remedy which it may have
for possession of the Premises or for arrearages in rent or other amounts
payable to Lessee:
(i) Lessor may terminate this Lease by giving Xxxxxx written notice
of termination, in which event Lessee shall immediately quit and vacate the
Premises and deliver and surrender possession of the Premises to Lessor, and
this Lease shall be terminated at the time designated by Lessor in its notice of
termination to Lessee; provided, however, that no termination of this Lease
prior to the normal expiration hereof shall affect Lessor's right to collect
rent for the period prior to termination; or
(ii) With or without terminating this Lease, Lessor may enter upon
and take possession of the Premises and expel or remove Xxxxxx and any other
person who may be occupying the Premises, by force if necessary, without being
liable for prosecution or any claim for damages; or
(iii) Lessor may re-let the Premises or any part thereof, on such
terms and conditions as Lessor may deem satisfactory, and receive the rent for
any such re-letting, in which event Lessee shall pay to Lessor on demand any
deficiency that may arise by reason of such re-letting; provided, further, that
Lessee shall pay over to Lessor on demand any and all reasonable costs and
expenses incurred in renovating or altering the Premises to make it suitable for
re-letting; or
(iv) Lessor may declare immediately due and payable the present
value (using a discount rate of eight percent (8%) per annum) of all rent and
other sums due or to become due under this Lease immediately due and payable;
provided, however, that such payment shall not constitute a penalty or
forfeiture or liquidated damages, but shall merely constitute payment in advance
of the rent for the remainder of the term of this Lease. Upon making such
payment, Lessee shall be entitled to receive from Lessor all rents actually
received by Xxxxxx from other assignees, tenants and subtenants on account of
the Premises during the term of this Lease, provided that the monies to which
Lessee shall so become entitled shall in no event exceed the entire amount
actually paid by Lessee to Lessor pursuant to this subparagraph (iv), less all
costs, expenses and attorneys' fees of Lessor incurred in connection with the
reletting of the Premises.
(c) Xxxxxx's pursuit of any one or more of the remedies provided in this
Lease shall not constitute an election of remedies excluding the election of
another remedy or other remedies, or a forfeiture or waiver of any rent or other
amounts payable under this Lease by Lessee or of any damages or other sums
accruing to Lessor by reason of Xxxxxx's violation of any provision of this
Lease. No action taken by or on behalf of Lessor shall be construed to mean
acceptance of a surrender of this lease. No failure of Lessor to pursue or
exercise any of Lessor's powers, rights or remedies or to insist upon strict and
exact compliance by Lessee with any provision of this Lease, and no custom or
practice at variance with the terms of this Lease, shall constitute a waiver by
Lessor of the right to demand strict and exact compliance with the terms and
conditions of this Lease.
14. Rights Cumulative. All rights, remedies, powers and privileges
conferred under this Lease on Lessor shall be cumulative of and in addition to,
but not restrictive of or in lieu of, those conferred by law.
15. Liens. Xxxxxx hereby indemnifies Lessor against, and shall keep the
Premises, the Building and the Land free from liens for any work performed,
material furnished or obligations incurred by Xxxxxx. Should any liens or claims
be filed against the Premises, the Building or the Land by reason of Xxxxxx's
acts or omissions, Lessee shall cause same to be discharged by bond or otherwise
within ten (10) days after filing. If Lessee fails to cause any such lien or
claim to be discharged within the required time, Lessor may cause same to be
discharged and may make any payment that Lessor, in its sole judgment, considers
necessary, desirable or
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proper in order to do so. All amounts paid by Lessor shall bear interest at the
Default Rate of Interest from the date of payment by Lessor and shall be payable
by Lessee to Lessor upon demand.
16. Lessee's Property; Improvements to the Premises. (a) If Lessee shall
not remove all Lessee's effects from the Premises at any expiration or other
termination of this Lease, Lessor shall have the right, at Lessor's election, to
remove all or part of said effects in any manner that Lessor shall choose and
store the same without liability to Lessee for loss thereof, and Lessee shall be
liable to Lessor for all expenses incurred in such removal and also for the cost
of storage of said effects.
(b) Lessee shall not make, any alterations, additions or improvements to
the Premises, exterior or interior, without the prior written consent of Lessor,
except for unattached movable fixtures which may be installed without drilling,
cutting or otherwise defacing the Premises. If any such alterations, additions
or improvements are made, then, at the expiration of the term of this Lease,
Xxxxxx agrees to restore the Premises to the condition prior to making same, at
Xxxxxx's sole cost and expense, reasonable wear and tear excepted, provided that
if Lessor does not require removal, then all such alterations, additions or
improvements shall become the sole property of Lessor. Lessee may not use or
penetrate the roof of the Premises for any purpose whatsoever without Xxxxxx's
prior written consent. All construction work done by Xxxxxx in the Premises
shall be performed in a good and workmanlike manner, in compliance with all
governmental requirements, and at such times and in such manner as will cause a
minimum of interference with other construction in progress and with the
transaction of business in the Building. Lessee covenants and agrees that all
contractors, subcontractors and other persons or entities performing work for
Lessee at the Premises will carry liability insurance in amounts acceptable to
Lessor.
17. Subletting and Assignment. (a) Lessee shall not, directly or
indirectly, without the prior written consent of Xxxxxx, endorsed hereon, sell,
assign, hypothecate or otherwise transfer this Lease or any interest hereunder,
or sublet the Premises or any part thereof, or permit the use of the Premises by
any party other than Lessee. Consent to any assignment or sublease shall not be
deemed a waiver of the right of Lessor to approve any further assignment or
subletting. Notwithstanding any permitted assignment or subletting, Lessee shall
remain liable for the full and complete performance, satisfaction and compliance
with each and every agreement, term, covenant, condition, requirement, provision
and restriction of this Lease, as principal and not as surety or guarantor, and
as if no such assignment or subletting had been made.
(b) In the event that during the term of this Lease Lessee desires to
sublease the Premises or assign this Lease Lessee shall give written notice
thereof to Lessor, which notice shall contain (i) the name of the proposed
subtenant or assignee; (ii) the terms of any sublease; and (iii) such other
information as Lessor shall reasonably request; whereupon Lessor shall consider
such proposed subtenant or assignee and notify Lessee with reasonable promptness
as to Lessor's choice, at Xxxxxx's sole discretion, of the following: (x) that
Lessor consents to a subleasing of the Premises or assignment of this Lease to
such proposed subtenant or assignee; or (y) that upon such proposed subtenant's
or assignee's entering into a mutually satisfactory new lease of the Premises
with Lessor, then Lessee shall be released from all further obligations and
liabilities under this Lease (excepting only any unpaid rentals or any
unperformed covenants then past due or unperformed under this Lease); or (z)
that Lessor declines to consent to such sublease or assignment due to
insufficient or unsatisfactory documentation furnished to Lessor to establish
the proposed subtenant's or assignee's financial strength and proposed use of
and operations upon the Premises.
(c) In the event that Lessee sublets the Premises or any part thereof, or
sells, assigns or transfers this lease and at any time receives rent and/or
other consideration which exceeds that which Lessee would at that time be
obligated to pay to Lessor, Lessee shall pay to Lessor 100% of the gross excess
in such rent as such rent is received by Lessee and 100% of any other
consideration received by Lessee from such subtenant in connection with such
sublease or, in the case of an assignment of this Lease by Xxxxxx, Lessor shall
receive 100% of any consideration paid to Lessee by such assignee in connection
with such assignment. In addition, should
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Lessor agree to an assignment or sublease agreement, Xxxxxx will pay to Lessor
on demand a sum equal to all of Lessor's costs, including reasonable attorneys'
fees, incurred in connection with such assignment or transfer.
18. Damage or Destruction. If the Premises or any portion thereof are
destroyed by storm, fire, lightning, earthquake or other casualty, Lessee shall
immediately notify Lessor. In the event the Premises cannot, in Xxxxxx'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 Lessee hereunder shall be
accounted for as between Lessor and Xxxxxx as of that date. Lessor shall notify
Lessee within thirty (30) days of the date of the damage or destruction whether
the Premises can be restored within one hundred eighty (180) days. If this Lease
is not terminated as provided in this Paragraph, Lessor shall, to the extent
insurance proceeds payable on account of such damage or destruction are
available to Lessor (with the excess proceeds belonging to Lessor), within a
reasonable time, repair, restore, rebuild, reconstruct or replace the damaged or
destroyed portion of the Premises to a condition substantially similar to the
condition which existed prior to the damage or destruction. Provided, however,
Lessor shall only be required to repair, restore, rebuild, reconstruct and
replace the Lessor's Work shown on Exhibit "A," and Lessee shall, at its sole
cost and expense, upon completion of the Lessor's Work, repair, restore,
rebuild, reconstruct and replace, as required, any and all improvements
installed in the Premises by Lessee and all trade fixtures, personal property,
inventory, signs and other contents in the Premises, and all other repairs not
specifically required of Lessor hereunder, in a manner and to at least the
condition existing prior to the damage. Lessee's obligation to pay Base Rent
shall xxxxx until Xxxxxx has repaired, restored, rebuilt, reconstructed or
replaced the Premises, as required herein, in proportion to the part of the
Premises which are unusable by Xxxxxx. If the damage or destruction is due to
the act, neglect, fault or omission of Lessee, there shall be no rent abatement.
Notwithstanding the foregoing, if any such damage or destruction occurs within
the final two (2) years of the term hereof, then Lessor, in its sole discretion,
may, without regard to the aforesaid 180-day period, terminate this Lease by
written notice to Xxxxxx.
19. Condemnation. (a) In the event of a taking of all or any material part
of the Premises (so that the untaken portion is unsuitable for the continued
feasible and economic operation of the Premises by Lessee for substantially the
same purposes as immediately prior to such taking), then this Lease shall
automatically terminate and all rent and other sums payable by Lessee hereunder
shall be apportioned and paid through and including the date of such taking.
(b) Lessor shall be entitled to all awards, damages, compensation or
proceeds payable by reason of any taking, and Lessee shall not be entitled to
any portion thereof, and shall have no claim for, and hereby transfers, assigns,
conveys and sets over unto Lessor all of its right, title and interest, if any,
in or to any award, damages, compensation or proceeds payable by reason of any
taking; and, without limiting the generality of the foregoing, Lessee shall have
no claim, against Lessor or the condemning authority, or otherwise, for any
award, damages, compensation or proceeds for (i) the value of any unexpired term
of this Lease, or (ii) the value of any fixtures or improvements installed by
Lessee in the Premises. Nothing herein shall be construed, however, to preclude
Lessee from prosecuting any claim directly against the condemning authority for
loss of business, moving expenses, damage to, and cost of removal of, trade
fixtures, furniture and other personal property belonging to Xxxxxx; provided,
however, that Lessee shall make no claim which shall diminish or adversely
affect any award claimed or received by Lessor.
20. Indemnity. Lessee shall, at all times, except to the extent of the
negligence of Lessor, its agents and employees, indemnify and hold harmless
Lessor and Lessor's officers, employees and agents from, against and in respect
of, all liabilities, damages, losses, costs, expenses (including all reasonable
attorneys' fees), causes of action, suits, claims, demands and judgments of any
nature whatsoever arising, in whole or in part, out of, by reason of or in
connection with: (i) injury to or the death of persons or damage to property
caused by Xxxxxx (A) on the Premises, or (B) in any manner arising out of, by
reason of or in connection with, the use, nonuse or occupancy of the Premises by
Xxxxxx, or (C) resulting from the condition of the Premises, if caused by
Lessee; (ii) the violation or breach of, or the failure of Lessee to fully
8
and completely keep, observe, satisfy, perform and comply with, any agreement,
term, covenant, condition, requirement, provision or restriction of this lease;
or (iii) the violation by Lessee of any law affecting the Premises or the use or
occupancy thereof. Lessee, on behalf of itself and all persons and entities
claiming through Lessee, waives all claims against Lessor for damage to any
property or injury to, or death of, any person in, upon, or about the Premises,
the Building or the Land arising at any time and from any cause (including
without limitation fire, explosion, water, rain, flood, or leaks from any part
of the Premises or from the pipes, appliances, plumbing works, roof, or
subsurface of any floor or ceiling, or from the street or any other place),
except to the extent caused by the negligence or willful misconduct of Lessor,
its agents, employees, representatives, or contractors.
21. Insurance. (a) Lessee shall maintain in force at all times
comprehensive general public liability insurance in an amount of not less than
$2,000,000.00 combined single limit coverage for bodily injury, death and
property damage. Such insurance shall include contractually assumed liability;
and such insurance shall be primary and not in excess of or contributory with
other insurance carried by other persons. Said policy shall name both Lessor and
Xxxxxx as insureds and shall contain a provision requiring the insurer to give
Lessor at least fifteen (15) calendar days' prior written notice before any
termination or expiration of said policy or any reason. Prior to the
commencement of this Lease and prior to the expiration of each term of such
policy Lessee shall deliver to Lessor the original of such policy or a proper
certificate from the insurer.
(b) Xxxxxx hereby agrees to insure any improvements installed by Xxxxxx in
the Premises and its merchandise, trade fixtures, personal property,
furnishings, supplies, inventory, signs and all other contents of the Premises
against fire, with all risk coverage, for the full replacement value thereof.
Lessor shall have no responsibility whatsoever for any damage, theft or other
casualty to or involving the same.
(c) Each policy of insurance obtained by Lessee hereunder or otherwise
with respect to the Premises shall contain a waiver of subrogation clause
reasonably acceptable to Lessor.
(d) Lessor shall insure the Building against damage with casualty
insurance not less than the replacement value of the Building and with such
deductibles as Lessor reasonably deems appropriate and with comprehensive
general public liability insurance in such amounts and with such deductibles as
Lessor reasonably deems appropriate.
22. Signage. Lessee shall not install any signs visible from outside the
Premises except with the prior written consent of Xxxxxx. Any permitted signs
shall be maintained in compliance with applicable governmental rules and
regulations governing such signs, and Lessee shall be responsible to Lessor for
any damage caused by the installation, use or maintenance of said signs. Xxxxxx
agrees, upon removal of said signs, to repair all damage incident thereto.
23. Attorneys' Fees. In the event that either party is required to enforce
the provisions of this Lease, such party, if it prevails, shall be entitled to
receive from the other party all costs and expenses incurred at trial and on
appeal in connection with such enforcement, including but not limited to
reasonable attorneys' fees.
24. Parties. "Lessor" as used in this Lease shall include Xxxxxx's assigns
and successors in title to the Premises. "Lessee" shall include Lessee and, if
this Lease shall be validly assigned or the Premises validly sublet, shall
include such assignee or subtenant, its successors and permitted assigns.
"Lessor" and "Lessee" shall include male and female, singular and plural,
corporation, partnership or individual, as may fit the particular parties.
25. Landlord and Tenant Relationship. This Lease shall create the
relationship of landlord and tenant between Xxxxxx and Lessee; no estate shall
pass out of Lessor; Xxxxxx has only an usufruct not subject to levy and sale.
26. Holding Over. If Xxxxxx remains in possession of the Premises after
expiration of the term of this Lease, with Xxxxxx's acquiescence and without any
distinct agreement of
9
parties, Lessee shall be a tenant at will at a rental rate equal to 150% of the
rate in effect at the end of this Lease; there shall be no renewal of this Lease
by operation of law.
27. Sale by Lessor. In the event of any sale, conveyance, transfer or
assignment by Lessor of its interest in and to the Premises, all obligations
under this Lease of the party selling, conveying, transferring, assigning or
otherwise disposing shall cease and terminate and Xxxxxx releases said party
from same and Lessee shall thereafter look only and solely to the party to whom
or which the Premises were sold, conveyed, transferred, assigned or otherwise
disposed of for performance of all of Lessor's duties and obligation under this
Lease.
28. Surrender of the Premises. At the termination of this Lease, Xxxxxx
shall surrender the Premises and keys thereof to Lessor in at least as good a
condition as at commencement of the term of this Lease, natural wear and tear
and casualty only excepted.
29. Notices. Lessee hereby appoints as Xxxxxx's agent to receive the
service of all dispossessory or distraint proceedings and notices thereunder,
and all notices required or permitted under this Lease, the person in charge of
or occupying the Premises at that time; and if no person is in charge of or
occupying same, then such service or notice may be made by attaching the same on
the main entrance to the Premises. All notices to Lessor shall be delivered by
hand or sent by certified mail, return receipt requested, postage prepaid, to
Xxxxxx's principal office set forth at the beginning of this Lease.
30. Covenant of Quiet Enjoyment. So long as Xxxxxx observes and performs
the covenants and agreements contained herein to be observed and performed by
Xxxxxx, Lessor covenants and agrees that Xxxxxx shall at all times during the
term of this Lease peacefully and quietly have and enjoy possession of the
Premises, but always subject to the terms hereof.
31. Subordination and Attornment. (a) This Lease shall be subordinate to
the right, title and interest of any lender or other party holding a security
interest in or a lien upon the Premises under any and all mortgage instruments
or deeds to secure debt presently encumbering the Premises or the Building and
to any and all other deeds to secure debt or mortgage instruments hereafter
encumbering the Premises or the Building. Lessee shall at any time hereafter, on
demand of Lessor or the holder of any such deed to secure debt or mortgage
instrument, execute any instruments which may reasonably be required by such
party for the purpose of evidencing the subordination of this Lease to the lien
or security interest of such party.
(b) The following provisions shall be applicable to the subordinations
provided under subparagraph (a) above: (i) Lessor agrees to use its best efforts
following full execution and delivery of this Lease to obtain from its present
lender a nondisturbance agreement providing that, in the event the deed to
secure debt or mortgage instrument is foreclosed, Xxxxxx's possession of the
Premises shall not be disturbed so long as no Event of Default shall have
occurred and is continuing and so long as Lessee continues to comply with the
terms of this Lease (a "Nondisturbance Agreement"); and (ii) as to any deed to
secure debt or mortgage instrument that is placed against the Premises or the
Building after the date of this Lease, the foregoing subordination shall not be
effective unless the holder of such deed to secure debt or mortgage instrument
shall execute and deliver to Lessee a Nondisturbance Agreement.
(c) Lessee shall, upon demand, at any time or times, execute, acknowledge
and deliver to Lessor or the holder of any such instruments or deeds to secure
debt, without expense, any and all documents that may be necessary to make this
Lease superior to the lien of any of the same.
(d) If the holder of any of said instruments or deeds to secure debt shall
hereafter succeed to the rights of Lessor under this Lease, Lessee shall, at the
option of such holder or a purchaser at any foreclosure or sale under power,
attorn to and recognize such successor as Xxxxxx's landlord under this Lease.
Lessee shall promptly execute, acknowledge and deliver any instrument that may
be necessary to evidence such attornment. Upon such attornment, this
10
Lease shall continue in full force and effect as a direct lease between each
successor Lessor and Xxxxxx, subject to all of the terms, covenants and
conditions of this Lease.
(e) If Lessee fails at any time to execute, acknowledge and deliver any of
the documents provided for by this Paragraph within ten (10) days after Xxxxxx's
notice so to do, in addition to the remedies allowed by Paragraph 13 hereof, or
otherwise, Lessor may execute, acknowledge and deliver any and all such
documents as the attorney-in-fact of Lessee in its name, place and stead and
Lessee hereby appoints Lessor, its successors and assigns as such attorney-in-
fact, such power of attorney being coupled with an interest and being
irrevocable by death, dissolution or merger of Lessee.
32. Estoppel Certificate. At any time and from time to time, Lessee, on or
before the date specified in a request therefor made by Lessor, which date shall
not be earlier than ten (10) days from the making of such request, shall
execute, acknowledge and deliver to Lessor 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 Lessor
hereunder, to the knowledge of Xxxxxx, 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 Xxxxxx. Each
certificate delivered pursuant to this Paragraph may be relied on by any
prospective purchaser of the Building or transferee of Xxxxxx'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.
33. Governmental Regulations. Lessee agrees, at its sole expense, to
promptly comply with all requirements of any legally constituted public
authority made necessary by reason of Xxxxxx's use or occupancy of the Premises.
Xxxxxx agrees to promptly comply with any such requirements if not made
necessary by reason of Xxxxxx's use or occupancy of the Premises. It is mutually
agreed, however, between Lessor and Lessee, that if in order to comply with such
requirements the cost to Lessor or Lessee, as the case may be, shall exceed a
sum equal to one (1) year's Base Rent under this Lease at the time compliance is
required, then the party who is obligated to comply with such requirement is
entitled to terminate this Lease by giving written notice of termination to the
other party, which termination shall become effective sixty (60) days after
receipt of such notice, and which notice shall eliminate necessity of compliance
with such requirement by the party giving such notice, unless the party
receiving such notice of termination shall, before the termination becomes
effective, pay to the party giving notice all costs of compliance in excess of
one (1) year's Base Rent, or secure payment of said sum in a manner satisfactory
to the party giving notice.
34. Relocation. Lessor shall have the right from time to time to designate
any other space in the Building to be occupied by Lessee in lieu of the
Premises, provided that said other space is of substantially equal size and
area. Lessor 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 Xxxxxx and Xxxxxx and their respective
successors, heirs, legal representatives and assigns, subject, however, in the
case of Xxxxxx, to the restrictions on assignment and subletting contained in
this Lease.
36. Limitation of Liability. Lessor's obligations and liability to Lessee
with respect to this Lease shall be limited solely to Xxxxxx's interest in the
Building, and neither Lessor, nor any joint venturer, partner, officer, director
or shareholder of Lessor or any of the joint venturers of Lessor shall have any
personal liability whatsoever with respect to this Lease.
37. Agent's Commission. (a) The Agent shall be entitled to receive a
commission in the amounts, and upon the terms and conditions, contained in a
commission agreement between Lessor and Agent.
11
(b) Lessee warrants and represents to Lessor that, except as set forth
above, no other party is entitled, as a result of the actions of Lessee, to a
commission or other fee resulting from the execution of this Lease; and in the
event Lessee extends or renews this Lease, or expands the Premises, and Agent is
entitled to a commission under the above-referenced commission agreement, Lessee
shall pay all commissions and fees payable to any party (other than Agent)
engaged by Xxxxxx to represent Lessee in connection therewith. Lessor warrants
and represents to Lessee that, except as set forth above, no other party is
entitled, as a result of the actions of Lessor, to a commission or other fee
resulting from the execution of this Lease. Lessor 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.
(c) The Agent is representing Lessee in connection with this Lease, and is
not representing Lessor. Employees of Lessor or its affiliates are representing
Lessor and are not representing Lessee.
(d) The parties acknowledge that a general partner of Lessor or of one of
the sub-partnerships of Lessor, and/or other officers, directors, shareholders,
or partners of Lessor or such sub-partnerships, are licensed real estate brokers
and/or salesmen under the laws of the State of Georgia. Lessee consents to such
parties acting in such dual capacities.
38. Rules and Regulations. Xxxxxx accepts the Premises subject to and
hereby agrees with Lessor 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 Lessor, and such additions or amendments shall be
binding on Lessee upon receipt of same by Xxxxxx.
39. Hazardous Substances. Lessee covenants and agrees that it shall not
cause or permit any Hazardous Substances (as hereinafter defined) to be
generated, used, treated, stored, released or disposed of in, on, at, or under
the Premises, the Building or the Land without Lessor's prior written consent.
Lessee further covenants and agrees to indemnify Lessor for any loss, cost,
damage, liability or expense (including, without limitation, attorneys' fees),
as well as environmental impairment damages, that Lessor might ever incur
because of Xxxxxx's failure to comply with the provisions of the immediately
preceding sentence, this indemnification to survive the expiration or other
termination of this Lease. For the purposes of the Paragraph 39, Hazardous
Substances shall mean and refer to (i) all those substances, elements,
materials, compounds or wastes defined or classified as hazardous or restricted
under (A) the Comprehensive Environmental Response, Compensation, and Liability
Act of 1980, as amended from time to time, the regulations promulgated
thereunder and analogous state statutes and regulations, (B) the Resource
Conservation and Recovery Act of 1976, as amended from time to time, the
regulations promulgated thereunder and analogous state statutes and regulations,
(C) the Toxic Substances Control Act, as amended from time to time, the
regulations promulgated thereunder and analogous state statutes and regulations;
and (ii) petroleum products, including, without limitation, waste oils; and
(iii) "asbestos," as defined in 29 C.F.R. Sec. 1910.1001 et seq. (or analogous
regulations promulgated under the Occupational Safety and Health Act of 1970, as
amended from time to time, and the regulations promulgated thereunder); and (iv)
"PCBs," as defined in 40 C.F.R. Sec. 761 et seq., and "TCDD," as defined in 40
C.F.R. Sec. 775 et seq. (or in either case analogous regulations promulgated
under the Toxic Substances Control Act, as amended from time to time); and (v)
any other substance, element, material or compound defined or restricted as a
hazardous, toxic, radioactive or dangerous substance, material or waste by the
Environmental Protection Agency or by any other ordinance, statute, law, code,
or regulation of any federal, state or local governmental entity or any agency,
department or other subdivision thereof, whether now or later enacted, issued,
or promulgated.
40. Miscellaneous. Time is of the essence of this Lease. This Lease
contains the entire agreement of Lessor and Lessee and no representations or
agreements, oral or otherwise, between the parties not embodied herein shall be
of any force or effect. No failure of Lessor to exercise any power given Lessor
hereunder, or to insist upon strict compliance by Xxxxxx of
12
any obligations hereunder, and no custom or practice of the parties at variance
with the terms hereof shall constitute a waiver of Lessor's right to 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 Lessee without Xxxxxx's consent endorsed hereon.
Lessor 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. If Xxxxxx executes this Lease as a
corporation, each of the persons executing this Lease on behalf of Xxxxxx does
hereby personally represent and warrant that Lessee is a duly authorized and
existing corporation, that Lessee is qualified to do business in the state in
which the Premises are located, that the corporation has full right and
authority to enter into this Lease, and that each person signing on behalf of
the corporation is authorized to do so. In the event any representation or
warranty is false, all persons who execute this Lease shall be liable,
individually, as Xxxxxx.
41. Special Stipulations. In the event any Special Stipulations are
attached to this Lease the terms thereof shall control in the event of a
conflict between the provisions of this lease and the provisions thereof.
42. Guaranty. Intentionally deleted.
13
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.
Lessor:
ASC NORTH XXXXXX ASSOCIATES JOINT VENTURE
By: Xxxxxxxx & Xxxxxxxx/Xxxxxxx Joint Venture
By: Xxxxxxxx/Xxxxxxx Park Partners, Ltd., a
Georgia limited partnership, joint venturer
By: ________________________(SEAL)
General Partner
Date of Execution by Lessor:
____________________________
Lessee:
(Corporate Execution):
MICROSOUTH, INC.
By: ____________________________
President
Attest: ________________________
Secretary
(CORPORATE SEAL)
Date of Execution by Lessee:
________________________________
14
EXHIBIT "B"
All that tract or parcel of land lying and being in Land Lot 522 of the
1st District, 2nd Section, Xxxxxx County, Georgia, and being more particularly
described as follows:
Starting at the northwestern corner of Land Lot 522, proceeding thence
South 00(degrees) 24' 52" West, a distance of 40.02 feet to an iron pin
found, being the POINT OF BEGINNING; thence North [ILLEGIBLE](degrees) 45'
52" East, a distance of 165.44 feet to a point; thence along the arc of a
7,476.62' radius curve an arc distance of 350.44 feet to an iron pin found
(said arc being subtended on its southerly side by a chord, bearing South
89(degrees) 53' 34" East, with a length of 350.40 feet); thence along the
arc of a 7,476.62' radius curve an arc distance of 311.69 feet to an iron
pin found (said arc being subtended on its southerly side by a chord, bearing
South 87(degrees) 21' 21" East, with a length of 311.67 feet); thence South
00(degrees) 24' 52" West, a distance of [ILLEGIBLE] feet to an iron pin
found; thence North 89(degrees) 47' 00" West; a distance of 427.20 feet to
a point; thence North 00(degrees) 24' 52" East, a distance of [ILLEGIBLE]
feet to the POINT OF BEGINNING, said tract of Land being shown on that certain
Boundary Survey for Alpha/Xxxxxx, dated November 17, 1981, updated June 21,
1982, by Benchmark Engineering Corporation, Xxxxxx [ILLEGIBLE], Georgia
Registered Land Surveyor No. 1873.
Together with all rights under that certain Easement from Kingswood I. to
X. X. Xxxxxx, dated November 25, 1981, recorded in Deed Book 8014, page 194,
Xxxxxx County, Georgia Records; together with all rights created under that
certain Easement from Xxxxxxx Realty and Mortgage Company, et. al., in favor of
X. X. Xxxxxx, dated April 19, 1982, recorded in Deed Book 8114, page 281, Xxxxxx
County, Georgia Records; and together with any interest of Xxxx X. Xxxxxx in and
to the following described real estate.
Starting at the northwest corner of Land Lot 522, being the POINT OF
BEGINNING; thence North 88(degrees) 45' 52" East, a distance of 164.29 feet to a
point; thence along the arc of a 7,516.62' radius curve; an arc distance of
351.58 feet to a point (said arc being subtended on its southerly side by a
chord, bearing South 89(degrees) 53' 44" East, with a length of 351.55 feet);
thence along the arc of a 7,516.62' radius curve, an arc distance of 311.69 feet
to a point (said arc being subtended on its southerly side by a chord, bearing
South 87(degrees) 22' 04" East, with a length of 311.67 feet); thence South
00(degrees) 24' 52" West, a distance of 40.07 feet to an iron pin found; thence
along the arc of a 7,476.62' radius curve, a distance of 311.69 feet to an iron
pin found (said arc being subtended on its southerly side by a chord, bearing
North 87(degrees) 21' 21" West, with a length of 311.67 feet); thence
northwesterly along the arc of a 7,476.62' radius curve, an arc distance of
350.44 feet, to a point (said arc being subtended on its southerly side by a
chord, bearing North 89(degrees) 53' 34" West, with a length of 350.40 feet);
thence South 88(degrees) 45' 52" West, a distance of 165.44 feet to an iron pin
found, thence North 00(degrees) 24' 52" East, a distance of 40.02 feet to the
POINT OF BEGINNING.
BOOK 8209 PAGE 877
ACCEPTANCE OF PREMISES
Lessee: ________________________________________________________
Lessor: ________________________________________________________
Date Lease Signed: _______________________________________________
Term of Lease: _______________________________ Months
Address of Leased Premises: Suite ____________ containing
approximately ______________ square feet, located at _____________
__________________________________________________________________
Commencement Date: _______________________________________________
Expiration Date: _________________________________________________
The above described premises are accepted by Lessee as suitable for the purpose
for which they were let. The above described lease term commences and expires on
the dates set forth above. Lessee acknowledges that it has been received from
Lessor ________ number of keys to the leased premises. It is understood that
there is a punch list which will be completed after move-in and will be an
exhibit to the Tenant Estoppel.
LESSEE
__________________________________ WITNESS
(Type Name of Lessee)
By _______________________________ _______________________________
(Signature) (Signature)
__________________________________ _______________________________
(Type Name and Title) (Company)
EXHIBIT "C"
EXHIBIT "D"
RULES AND REGULATIONS
1. Sign Display. Lessor will provide at Xxxxxx's expense 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 Lessor.
2. Drives and Parking Areas. All parking shall be within the property
boundaries and within marked parking spaces. There should be no on-street
parking and at no time shall any lessee obstruct drives and loading areas
intended for the use of all lessees. The drives and parking areas are for the
joint and non-exclusive use of lessor's lessees, and their agents, customers and
invitees, unless specifically marked. In the event Lessee, its agents, customers
and/or invitees use a disportionate portion of the parking, Lessor shall have
the right to restrict Lessee, its agents, customers and/or invitees to certain
parking areas. Lessee shall not permit any fleet trucks to park overnight in the
Building's parking areas.
3. Storage and Loading Areas. Unless specifically approved by Lessor in
writing, no materials, supplies or equipment shall be stored anywhere except
inside the Premises. Trash receptacles may not be placed in the service areas
except by Lessor. If Lessor does not supply trash receptacles, Lessee shall
furnish its own receptacles, and shall place such receptacles in a location
designated by Lessor.
4. Locks. No additional locks, other than landlord approved entry systems,
shall be placed on the doors of the Premises by Lessee nor shall any existing
locks be changed unless Lessor is immediately furnished with two keys thereto.
Lessor will, without charge, furnish Lessee with two keys for each lock on the
entrance doors when Lessee assumes possession, with the understanding that at
the termination or expiration of the term of the Lease the keys shall be
returned.
5. Contractors and Service Maintenance. Lessee will refer all contractors,
contractor's representatives and installation technicians rendering any service
on or to the Premises for Lessee to Lessor 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.
6. Lodging. No Lessee shall at any time occupy any part of the Building as
sleeping or lodging quarters.
7. Regulation of Operation and Use. Lessee 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 Lessor. The foregoing shall not prohibit the use of
microwave ovens.
8. 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 Lessor may provide or approve) so that a full unobstructed view
of the interior of the Premises may be had from outside the Building.
9. Modifications. Lessor shall have the right from time to time to modify,
add to or delete any of these Rules and Regulations at Lessor's reasonable
discretion, provided that any changes are uniformly applied to all lessees, and
do not materially interfere with the conduct of Xxxxxx's business at the
Premises.
EXHIBIT "E"
SPECIAL STIPULATIONS
1. EXPANSION PROVISION. In the event Lessee find it necessary to expand its
operations and requires at least 50% more rentable area than is contained
in the Premises, Xxxxxx agrees to work in good faith to help Xxxxxx locate
to other premises meeting these space requirements owned by Lessor within
Xxxxxxx Park. If Lessor does not have appropriate space within Xxxxxxx
Park, Lessor will endeavor to relocate Lessee to any other facility owned
by Lessor or a company affiliated with Lessor within a one-mile radius of
the Premises. The rental for the new space shall be then market rent for
space of similar size, quality and finish with Xxxxxxx Park. The expansion
shall otherwise be on terms mutually acceptable to Lessor and Lessee. In
no event shall Lessor be required to terminate this Lease in order to
relocate Lessee to any place other than another building owned by Lessor
an affiliated company, as described above.
2. RENEWAL OPTION. If, at the end of the primary term of this Lease, Lessee
is not in default in any of the terms, conditions or covenants of the
Lease, Lessee, but not any assignee or subtenant of Lessee, is hereby
granted an option to renew this Lease for an additional term of thirty-six
(36) months upon the same terms and conditions contained in this Lease
with the following exceptions:
A. The renewal option term will contain no further renewal options
unless expressly granted by Xxxxxx in writing; and
B. In no event shall the base rent for the 1st year of the renewal term
exceed 1.04% of the base rent as stated in Paragraph 3 of the Lease.
If Lessee desires to renew this Lease, Lessee will notify Lessor of its
intention to renew no later than six (6) months prior to the expiration
date of this Lease; Lessor shall, within the next fifteen days, notify
Lessee in writing of the proposed renewal rate and the Lessee shall,
within the next fifteen days following receipt of the proposed rate,
notify the Lessor in writing, of its acceptance or rejection of the
proposed rental rate.
3. Lessor and Lessee agree that allowances for taxes and assessments and
insurance are included in the Base Rental Rate of $4.00 per square foot.
The allowance for taxes and assessments shall be $0.45 per square foot
annually and insurance shall be $0.03 per square foot annually.
4. Lessor and Lessee agree that the estimate for CAM charges (Common Area
Maintenance) shall be $.25 per square foot annually. The estimated
increase for the CAM charges for the next calendar years following the
Base Year shall not exceed 10% annually from the previous year charges.
5. Lessor agrees to provide a nine (9) month warranty on repairs and
maintenance for heating, ventilation and air conditioning equipment.
6. SUBLETTING AND ASSIGNMENT. The consideration paid to the Lessor in excess
of Xxxxxx's obligation from subletting or assignment will first apply to
the cost of procuring such assignment or transfer, which shall include,
but not limited to, reasonable brokerage fees, legal fees and the cost of
improvements made for the subtenant.
8. GOVERNMENTAL REGULATIONS. In the event that any legally constituted public
authority requires the protection of a fire wall between the warehouse and
office areas of the Premises, then Lessor agrees, at its sole expense to
comply with this requirement.
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE, dated as of the 9th day of January, 1995 by
and between ASC NORTH XXXXXX ASSOCIATES JOINT VENTURE, a Georgia joint venture,
comprised of New England Mutual Life Insurance Company, a Massachusetts
corporation, and Xxxxxxxx & Xxxxxxxx/Xxxxxxx Joint Venture, a Georgia joint
venture, as its sole joint venture partners ("Lessor"), and MICROSOUTH, INC., a
Delaware Corporation ("Lessee").
WHEREAS, Xxxxxx and Xxxxxx entered into that certain Lease dated April 13,
1992, covering certain real property at 000 Xxxxxxx Xxxxxxx, Xxxxx X, Xxxxxxx,
Xxxxxx Xxxxxx, Georgia being approximately 10,447 square feet of
office/warehouse space.
WHEREAS, Xxxxxx and Lessee wish to amend the Lease hereinafter provided;
NOW THEREFORE, for and in consideration of the premises, the sum of Ten
Dollars ($10.00) cash in hand party to the other and other good and valuable
considerations, the receipt and adequacy of which are hereby acknowledged, the
parties hereto agree as follows:
A. TERM
The lease term is hereby extended for an additional three (3) year
period beginning May 1, 1995 and ending April 30, 1998.
B. RENTAL
The rental as specified in Paragraph 3.01, shall be amended as
follows:
5/1/95 to 4/30/96 - $3,621.63 per month (4.16 SF)
5/1/96 to 4/30/97 - $3,769.63 per month (4.33 SF)
5/1/97 to 4/30/98 - $3,917.63 per month (4.50 SF)
This monthly rental shall be paid under the same terms and
conditions as specified in the original lease agreement, being the
first day of each month.
C. LANDLORD IMPROVEMENTS
It is understood that there will be no Landlord Improvements.
D. CANCELLATION OPTION
Tenant shall have option to cancel at the end of the first 12-month
period with the following conditions:
1) Landlord will receive 120 days prior written notice of
Xxxxxx's intent to cancel.
First Amendment to Lease
Microsouth, Inc.
Page two
All other terms, provisions and covenants of the lease dated April 13,
1992 shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
be executed, under seal, in their respective names and on their behalf by their
duly authorized officers, on the day and year set forth above.
LESSEE: LESSOR:
MICROSOUTH, INC. ASC NORTH XXXXXX ASSOCIATES
JOINT VENTURE
By: /s/ Xxx Xxxxxxx By: Xxxxxxxx & Xxxxxxxx/Xxxxxxx Joint
------------------------- Venture
Title: President
-------------------------
Attest: /s/ [ILLEGIBLE] X. Xxxxxxxxxx By: Xxxxxxxx/Xxxxxxx Park Partners,
------------------------- Ltd., a Georgia limited
Title: Office Manager partnership, joint venturer
-------------------------
(CORPORATE SEAL)
By: /s/ Xxxxxx X. Xxxxxxxx
-------------------------
Xxxxxx X. Xxxxxxxx
