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EXHIBIT 10.43
30,378 Square Feet
0000 Xxxxxxxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between PEACHTREE
CROSSINGS BUSINESS PARK ASSOCIATES hereinafter referred to as "Landlord" and
XXXXX MICROCOMPUTER PRODUCTS, INC., a Georgia corporation, hereinafter referred
to as "Tenant."
W I T N E S E T H
1. Premises and Term. In consideration of the obligation of Tenant to
pay rent as herein provided, and in consideration of the other terms, provisions
and covenants hereof, Landlord hereby demises and leases to Tenant, and Tenant
hereby accepts and leases from landlord certain premises situated within the
County of Gwinnett, State of Georgia, more particularly described on Exhibit "A"
attached hereto and incorporated herein by reference, together with all rights,
privileges, easements, appurtenances, and immunities belonging to or in any way
pertaining to the premises and together with the buildings and other
improvements situated or to be situated upon said premises (said real property,
building and improvements being hereinafter referred to as the "premises.")
TO HAVE AND TO HOLD the same for a term commencing on the "commencement
date," as hereinafter defined, and ending on the last day of the month that is
sixty (60) months after the commencement date.
A. The "commencement date" shall be September 1, 1993, and ending
August 31, 1998. Tenant acknowledges that it has inspected and accepts the
premises, and specifically the buildings and improvements comprising the same,
in their present condition, as suitable for the purpose for which the premises
are leased. Taking of possession by Tenant shall be deemed conclusively to
establish that said buildings and other improvements are in good and
satisfactory condition as of when possession was taken. Tenant further
acknowledges that no representations as to the repair of the premises, nor
promises to alter, remodel or improve the premises have been made by Landlord,
unless such are expressly set forth in this lease. If this lease is executed
before the premises become vacant or otherwise available and ready for
occupancy, or if any present tenant or occupant of the premises holds over, the
Landlord cannot acquire possession of the premises prior to said "commencement
date." Landlord shall not be deemed to be in default hereunder, and Tenant
agrees to accept possession of the premises at such time as Landlord is able to
tender the same, which date shall thenceforth be deemed the "commencement date,"
and Landlord hereby waives payment of rent covering any period prior to the
tendering of possession to Tenant hereunder. After the commencement date the
Tenant shall, upon demand, execute and deliver to Landlord a letter of
acceptance of delivery of the premises.
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2. Base Rent and Security Deposit.
A. Tenant agrees to pay to Landlord rent for the premises, in advance,
without demand, deduction or set off, for the entire term hereof at the rate of
ELEVEN THOUSAND SIX HUNDRED FORTY FIVE AND NO/100 DOLLARS ($11,645.00) per
month. One such monthly installment shall be due and payable on the date hereof
and a like monthly installment shall be due and payable on or before the first
day of each calendar month succeeding the commencement date recited above during
the hereby demised term, except that the rental payment for any fractional
calendar month at the commencement or end of the lease period shall be prorated.
The rental payment is subject to adjustment as provided below.
B. In addition, Tenant agrees to deposit with Landlord on the date
hereof the sum of ZERO AND NO/100 DOLLARS ($0.00), which sum shall be held by
Landlord, without obligation for interest, as security for the performance of
Tenant's covenants and obligations under this lease, it being expressly
understood and agreed that such deposit is not an advance rental deposit or a
measure of Landlord's damages in case of Tenant's default. Upon the occurrence
of any event of default by Tenant, Landlord may, from time to time, without
prejudice to any other remedy provided herein or provided by law, use such fund
to the extent necessary to make good any arrears of rent or other payments due
Landlord hereunder, and any other damage, injury, expense or liability caused by
such event of default, and Tenant shall pay to Landlord on demand the amount so
applied in order to restore the security deposit to its original amount.
Although the security deposit shall be deemed the property of Landlord, any
remaining balance of such deposit shall be returned by Landlord to Tenant at
such time after termination of this lease that all of Tenant's obligations under
this lease have been fulfilled.
3. Use. The demised premises shall be used only for the purpose of
general office, receiving, storing, manufacturing, repairing, shipping and
selling (other than retail) products, materials and merchandise made and or
distributed by Tenant and for such other lawful purposes as may be incidental
thereto, and subject to any building or building complex rules and regulations
which shall not impair Tenant's use of the premises. Outside storage, including
without limitation, trucks and other vehicles, is prohibited without Landlord's
prior written consent. Tenant shall at its own cost and expense obtain any and
all licenses and permits necessary for any such use. Tenant shall comply with
all governmental laws, ordinances and regulations applicable to the use of the
premises, and shall promptly comply with all governmental orders and directives
for the correction, prevention and abatement of nuisances in or upon, or
connected with the premises, all at Tenant's sole expense. Tenant shall not
permit any objectionable or unpleasant odors, smoke, dust, gas, noise or
vibrations to emanate from the premises, nor take any other action which would
constitute a nuisance or would disturb or endanger any other tenants of the
building in which their premises are situated or unreasonably interfere with
their use of their respective premises. Without Landlord's prior written
consent, Tenant shall not receive, store or otherwise handle any product,
material or merchandise which is explosive or highly flammable. Tenant will not
permit the premises to be used for any purpose or in any manner, including,
without limitation, any method of storage which would render the insurance
thereon void or the insurance risk more hazardous or cause the State Board of
insurance or other insurance authority to disallow any sprinkler credits. If any
increase in
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the fire and extended coverage insurance premiums paid by Landlord or other
tenants for the building in which Tenant occupies space is caused by Tenant's
use and occupancy of the premises, or if Tenant vacates the premises and causes
an increase in such premiums, then Tenant shall pay as additional rental the
amount of such increase to Landlord.
Tenant agrees that the point pressure resulting from Tenant's racking
system, inventory, forklifts and equipment pertaining to Tenant's use of the
premises shall not exceed allowable design floor loading for floor slabs on
grade. Tenant shall hold harmless Landlord from any loss, liability, and
expenses, both real and alleged, arising out of such damage or repair caused by
Tenant's negligence or failure to comply with this paragraph.
4. Taxes.
A. Landlord agrees to pay before they become delinquent all taxes,
assessments and governmental charges of any kind and nature whatsoever
thereinafter collectively referred to as "taxes" lawfully levied or assessed
against the building and the grounds, parking areas, driveways and alleys around
the building; provided, however, that the maximum amount of taxes to be paid by
Landlord hereunder during any one real estate tax year shall be ZERO AND NO/100
DOLLARS ($0.00). If in any real estate tax year during the term hereof or any
renewal or extension the taxes levied or assessed against the building and the
grounds, parking areas, driveways and alleys around the building during such tax
year shall exceed the sum set forth in the preceding sentence, Tenant shall pay
to Landlord as additional rental, upon demand, the amount of such excess. In the
event any such amount is not paid within twenty (20) days after the date of
Landlord's invoice to Tenant, the unpaid amount shall bear interest at the rate
of twenty percent (20%) per annum from the date of such invoice until payment by
Tenant. In the event the premises constitute a portion of a multiple occupancy
building, Tenant agrees to pay to Landlord as additional rental, upon demand,
the amount of Tenant's "proportionate share" (as defined in subparagraph 27B) of
the excess taxes referred to in this subparagraph above.
B. If at any time during the term of this lease, the present method of
taxation shall be changed so that in lieu of the whole or any part of any taxes,
assessments, or governmental charges levied, assessed or imposed on real estate
and the improvements thereon, there shall be levied, assessed or imposed on
Landlord a capital levy or other tax directly on the rents received therefrom
and/or a franchise tax, assessment, levy or charge measured by or based, in
whole or in part, upon such rents for the present or any future building or
buildings on the premises, then all such taxes, assessments, levies or charges,
or the part thereof so measured or based shall be deemed to be included within
the term "taxes" for the purposes hereof.
C. The Landlord shall have the right to engage a tax consulting firm to
attempt to assure a fair tax burden for the building and grounds within the
applicable taxing jurisdiction. Tenant shall pay to Landlord upon demand, from
time to time, as additional rent, the amount of Tenant's proportionate share of
the cost of such service.
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D. Any payment to be made pursuant to this Paragraph 4 with respect to
the real estate tax year in which this lease commences or terminates shall be
prorated.
5. Landlord's Repairs and Obligations. Landlord shall at his expense
maintain only the roof, foundation and the structural soundness of the exterior
walls of the building in good repair, reasonable wear and tear excepted. Tenant
shall repair and pay for any damage caused by the negligence of Tenant, or
Tenant's employees, agents or invitees, or caused by Tenant's default hereunder.
The term "walls' as used herein shall not include windows, glass or plate glass,
doors, store fronts or office entries. Tenant shall immediately give Landlord
written notice of defect or need for repairs, after which Landlord shall have
reasonable opportunity to repair same or cure such defect. Landlord's liability
with respect to any defects, repairs or maintenance for which Landlord is
responsible under any of the provisions of this lease shall be limited to the
cost of such repairs or maintenance or the curing of such defect.
6. Tenant's Repairs and Obligations.
A. Tenant shall at its own cost and expense keep and maintain all parts
of the premises (except those for which Landlord is expressly responsible under
the terms of this lease) in good condition, promptly making all necessary
repairs, repainting, and replacements, including but not limited to, windows,
glass and plate glass, doors, any office entries, interior walls and finish
work, floors and floor covering, downspouts, gutters, heating and air
conditioning systems, dock boards, truck doors, dock bumpers, paving, plumbing
work and fixtures, termites and pest extermination, regular removal of trash and
debris, grounds maintenance, common sewage line plumbing, common exterior
lighting (if applicable), common dumpster removal (if applicable)and other
obligations of the building, including, but not limited to, keeping the parking
areas, driveways, alleys and the whole of the premises in a clean and sanitary
condition. Tenant shall not be obligated to repair any damage caused by fire,
tornado or other casualty covered by the insurance to be maintained by Landlord
pursuant to subparagraph 12A below, except that Tenant shall be obligated to
repair all wind damage to glass except with respect to tornado or hurricane
damage.
B. The cost of maintenance and repair of any common party walls (any
wall, divider, partition or any other structure separating the premises from any
adjacent premises) shall be shared equally by Tenant and the tenant or tenants
occupying adjacent premises. Tenant shall not damage any demising wall or
disturb the integrity and support provided by any demising wall and shall, at
its sole cost and expense, promptly repair any damage or injury to any demising
wall caused by Tenant or its employees, agents or invitees.
C. In the event the premises constitute a portion of a multiple
occupancy building, Tenant and its employees, customers and licensees shall have
the exclusive right to use the parking areas, if any, as may be designated by
Landlord in writing, subject to such reasonable rules and regulations as
Landlord may from time to time prescribe and subject to rights of ingress and
egress of other tenants. Landlord shall not be responsible for enforcing
Tenant's exclusive parking rights against any third parties. Parking spaces have
been provided in accordance with applicable local
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building codes and anticipated needs of tenants. Tenant agrees not to use more
than its proportionate share as so provided.
D. Landlord reserves the right to perform and provide all of Tenant's
repairs and obligations under subparagraph 6A above, and Tenant shall, in lieu
of the obligations set forth under subparagraph 6A above with respect to such
items, pay monthly as additional rent due under Paragraph 2A for its
proportionate share of the cost and expense, including overhead, for those
items; provided, however, that Landlord shall have the right to require Tenant
to pay such other reasonable proportions of said repairs and obligations as may
be determined by Landlord in its sole discretion; and further provided that if
Tenant or any other particular tenant of the building can be clearly identified
as being responsible for obstructions or stoppage of the common sanitary sewage
line, then Tenant, if Tenant is responsible, shall pay the entire cost thereof,
upon demand, as additional rent.
E. Omitted.
F. Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance contractor
and the contract must be approved by Landlord. The service contract must include
all services suggested by the equipment manufacturer within the
operation/maintenance manual and must become effective (and a copy thereof
delivered to Landlord) within thirty (30) days of the date Tenant takes
possession of the premises.
7. Alterations. Tenant shall not make any alterations, additions or
improvements to the premises (including, but not limited to, roof and wall
penetrations) without the prior written consent of Landlord. Such consent will
not be denied provided the improvements are building standard office/warehouse
finishes. In the event Landlord consents to the making of any such alterations,
additions or improvements by Tenant, the same shall be made by Tenant, at
Tenant's sole cost and expense, in accordance with all applicable laws,
ordinances and regulations, and all requirements of Landlord's and Tenant's
insurance policies and only in accordance with plans and specifications approved
by Landlord; and any contractor or person selected by Tenant to make the same
and all subcontractors must first be approved in writing by Landlord. Tenant
may, without the consent of Landlord, but at its own cost and expense and in a
good workmanlike manner erect such shelves, bins, machinery and trade fixtures
as it may deem advisable, without altering the basic character of the building
or improvements and without overloading or damaging such building or
improvements, and in each case complying with all applicable governmental laws,
ordinances, regulations and other requirements. All alterations, additions,
improvements and partitions erected by Tenant shall be and remain the property
of Tenant during the term of this lease and Tenant shall, unless Landlord
otherwise elects as hereinafter provided, remove all alterations, additions,
improvements and partitions erected by Tenant and restore the premises to their
original condition by the date of termination of this lease or upon earlier
vacating of the premises; provided, however, that if Landlord so elects prior to
termination of this lease or upon earlier vacating of the premises, such
alterations, additions, improvements and partitions shall become the property of
Landlord as of the date of termination of this lease or upon earlier vacating of
the premises, and shall be delivered up to the Landlord with the premises. All
shelves, bins, machinery and trade fixtures installed by
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Tenant may be removed by Tenant prior to the termination of this lease if Tenant
so elects, and shall be removed by the date of termination of this lease or upon
earlier vacating of the premises if required by Landlord; upon any such removal
Tenant shall restore the premises to their original condition with consideration
for normal wear and tear. All such removals and restoration shall be
accomplished in a good workmanlike manner so as not to damage the primary
structure or structural qualities of the building and other improvements
situated on the premises.
8. Signs. Tenant agrees to conform to Landlord's signage program for
the building; however, all costs and expense of the sign, sign installation,
removal and repair shall be paid by Tenant. Tenant shall only have the right to
install standard signs upon the premises where first approved in writing by
Landlord and subject to any applicable governmental laws, ordinances,
regulations and other requirements. Tenant shall remove all signs prior to the
termination of this lease. Such installations and removals shall be made in such
a manner as to avoid injury or defacement of the building and other
improvements, and Tenant shall repair any injury or defacement, including,
without limitation, discoloration caused by installation and/or removal.
9. Inspection and Right of Entry. Landlord and Landlord's agents and
representatives shall have the right to enter the premises at any time in the
event of an emergency and to enter and inspect the premises at any reasonable
time during business hours, for the purpose of ascertaining the condition of the
premises in order to make such repairs as may be required or permitted to be
made by Landlord under the terms of this lease. During the period that is six
(6) months prior to the end of the term hereof, Landlord and Landlord's agents
and representatives shall have the right to enter the premises at any reasonable
time during business hours for the purpose of showing the premises and shall
have the right to erect on the premises a suitable sign indicating the premises
are available. Tenant shall arrange to meet with Landlord for a joint inspection
of the premises prior to vacating. In the event of Tenant's failure to arrange
such joint inspection, Landlord's inspection at or after Tenant's vacating the
premises shall be conclusively deemed correct for purposes of determining
Tenant's responsibility for repairs and restoration.
10. Utilities. Landlord agrees to provide at its cost water,
electricity and gas (when applicable) service connections into the premises; but
Tenant shall pay for all water, gas, heat, light, power, telephone, sewer,
sprinkler charges and other utilities and services used on or from the premises,
together with any taxes, penalties, surcharges or the like pertaining thereto
and any maintenance charges for utilities and shall furnish all electric light
bulbs and tubes. If any such services are not separately metered to Tenant,
Tenant shall pay a reasonable proportion as determined by Landlord of all
charges jointly metered with other premises, provided, however, Landlord shall
have the right to require Tenant to pay such other reasonable proportion of said
jointly metered charges as may be determined by Landlord in its sole discretion.
Landlord shall in no event by liable for any interruption or failure of utility
services on the premises.
11. Assignment and Subletting.
A. Tenant shall not have the right to assign, sublet, transfer or
encumber this lease, or any interest therein, without the prior written consent
of Landlord. Any attempted assignment,
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subletting, transfer or encumbrance by Tenant in violation of the terms and
covenants of this Paragraph shall be void. All cash or other proceeds of any
assignment, such proceeds as exceed the rentals called for hereunder in the case
of a subletting and all cash or other proceeds of any other transfer of Tenant's
interest in this lease shall be paid to Landlord, whether such assignment,
subletting or other transfer is consented to by Landlord or not, unless Landlord
agrees to the contrary in writing, and Tenant hereby assigns all rights it might
have or ever acquire in any such proceeds to Landlord. Any assignment,
subletting or other transfer of Tenant's interest in this lease shall be for an
amount equal to the then fair market value of such interest. These covenants
shall run with the land and shall bind Tenant and Tenant's heirs, executors,
administrators, personal representatives, representatives in any bankruptcy
proceeding, successors and assigns. any assignee, sublessee or transferee of
Tenant's interest in this lease (all such assignees, sublessees and transferees
being hereinafter referred to as "successors"), by assuming Tenant's obligations
hereunder shall assume liability to Landlord for all amounts paid to persons
other than Landlord by such successors in contravention of this Paragraph. No
assignments, subletting or other transfer, whether consented to by Landlord or
not, shall relieve Tenant of its liability hereunder. Upon the occurrence of an
"event of default" as hereinafter defined, if the premises or any part thereof
are then assigned or sublet, Landlord, in addition to any other remedies herein
provided, or provided by law, may at its option collect directly from such
assignee or subtenant all rents becoming due to Tenant under such assignment or
sublease and apply such rent against any sums due to Landlord from Tenant
hereunder, and no such collection shall be construed to constitute a novation or
a release of Tenant from the further performance of Tenant's obligations
hereunder.
B. If this lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code 11 U.S.C. ss. 101, et seq. (the "Bankruptcy
Code"), any and all monies or other considerations payable or otherwise to be
delivered in connection with such assignment shall be paid or delivered to
Landlord, shall be and remain the exclusive property of Landlord and shall not
constitute property of Tenant or of the estate of Tenant within the meaning of
the Bankruptcy Code. Any and all monies or other considerations constituting
Landlord's property under the preceding sentence not paid or delivered to
Landlord shall be held in trust for the benefit of the Landlord and promptly
paid or delivered to Landlord.
C. Any person or entity to which this lease is assigned pursuant to
the provisions of the Bankruptcy Code, shall be deemed, without further act or
deed, to have assumed all of the obligations arising under this lease on and
after the date of such assignment. Any such assignee shall upon demand execute
and deliver to Landlord an instrument confirming such assumption.
12. Fire and Casualty Damage.
A. Landlord agrees to maintain insurance covering the building of
which the premises are a part in an amount not less than eighty percent (80%)
(or such greater percentage as may be necessary to comply with the provisions of
any co-insurance clauses of the policy) of the replacement cost thereof,
insuring against the perils of Fire, Lightning, Extended Coverage, Vandalism and
Malicious Mischief, extended by Special Extended Coverage Endorsement to insure
against all other regulatory authority for the state in which the premises are
situated for use by
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insurance companies admitted in such state for the writing of such insurance on
risks located within such state. Subject to the provisions of subparagraphs 12C,
12D and 12E below, such insurance shall be for the sole benefit of Landlord and
under its sole control. If, during the second calendar year after the
commencement date of this lease, or during any subsequent calendar year of the
primary term or any renewal or extension, Landlord's cost of maintaining such
insurance shall exceed Landlord's cost of maintaining such insurance for the
first calendar year or the term hereof, Tenant agrees to pay to Landlord, as
additional rental, the amount of such excess not to exceed $4,128.00 per year
(or in the event the premises constitute a portion of a multiple occupancy
building, Tenant's full proportionate share of such excess). The first calendar
year shall be the year in which the lease commences. Said payments shall be made
to Landlord within ten (10) days after presentation to Tenant of Landlord's
statement setting forth the amount due. Any payment to be made pursuant to this
subparagraph A with respect to the year in which this lease commences or
terminates shall bear the same ratio to the payment which would be required to
be made for the full year as the part of such year covered by the term of this
lease bears to a full year. (See additional provision #38.)
B. If the buildings situated upon the premises should be damaged or
destroyed by fire, tornado or other casualty, Tenant shall give immediate
written notice thereof to Landlord.
C. If the buildings situated upon the premises should be totally
destroyed by fire, tornado or other casualty, or if they should be so damaged
thereby that rebuilding or repairs cannot in Landlord's reasonable estimation be
completed within one hundred twenty (120) days after the date upon which
Landlord is notified by Tenant of such damage, this lease shall terminate and
the rent shall be abated during the unexpired portion of this lease, effective
upon the date of the occurrence of such damage.
D. If the buildings situated upon the premises should be damaged by any
peril covered by the insurance to be provided by Landlord under subparagraph 12A
above, but only to such extent that rebuilding or repairs can in Landlord's
reasonable estimation be completed within one hundred twenty (120) days after
the date upon which Landlord is notified by Tenant of such damage, this lease
shall not terminate, and Landlord shall at its sole cost and expense thereupon
proceed with reasonable diligence to rebuild and repair such buildings to
substantially the condition in which they existed prior to such damage, except
that Landlord shall not be required to rebuild, repair or replace any part of
the partitions, fixtures, additions and other improvements which may have been
placed in, on or about the premises by Tenant and except that Landlord may elect
not to rebuild if such damage occurs during the last year of the term of the
lease exclusive of any option which is unexercised at the time of such damage.
If the premises are untenantable in whole or in part following such damage, the
rent payable hereunder during the period in which they are untenantable shall be
reduced to such extent as may be fair and reasonable under all of the
circumstances. In the event that Landlord should fail to complete such repairs
and rebuilding within one hundred twenty (120) days after the date upon which
Landlord is notified by Tenant of such damage, Tenant may at its option
terminate this lease by delivering written notice of termination to Landlord as
Tenant's exclusive remedy, whereupon all rights and obligations hereunder shall
cease and terminate.
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E. Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed of trust covering the
premises requires that the insurance proceeds be applied to such indebtedness,
then Landlord shall have the right to terminate this lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirement
is made by any such holder, whereupon all rights and obligations hereunder shall
cease and terminate.
F. Each of Landlord and Tenant hereby releases the other from any loss
or damage to property caused by fire or any other perils insured in policies of
insurance covering such property, even if such loss or damage shall have been
caused by the fault or negligence of the other party, or anyone for whom such
other party may be responsible. Each of the Landlord and Tenant agrees that it
will request its insurance carriers to include in its policies such a clause or
endorsement. If extra cost shall be charged therefore, each party shall advise
the other thereof and of the amount of the extra cost, and the other party, at
its election, may pay the same, but it shall not be obligated to do so.
13. Liability. Landlord shall not be liable to Tenant or Tenant's
employees, agents, patrons or visitors, or to any other person whomsoever, for
any injury to person or damage to property on or about the premises, resulting
from and or caused in part or whole by the negligence or misconduct of Tenant,
its agents, servants or employee of any other person entering upon the premises,
or caused by the buildings and improvements located on the premises becoming out
of repair, or caused by leakage of gas, oil, water or steam or by electricity
emanating from the premises, or due to any cause whatsoever, and Tenant hereby
covenants and agrees that it will at all times indemnify and hold safe and
harmless the property, the Landlord (including without limitation the trustee
and beneficiaries if Landlord is a trust), Landlord's agents and employees from
any loss, liability, claims, suits, costs, expenses, including without
limitation attorney's fees and damages, both real and alleged, arising out of
any such damage or injury, except injury to persons or damage to property the
cause of which is the negligence of Landlord or the failure of Landlord to
repair any part of the premises which Landlord is obligated to repair and
maintain hereunder within a reasonable time after the receipt of written notice
from Tenant of needed repairs. Tenant shall procure and maintain throughout the
term of this lease a policy or policies of insurance, at its sole cost and
expense, insuring both Landlord and Tenant against all claims, demands or
actions arising out of or in connection with: (i) the premises; (ii) the
condition of the premises; (iii) Tenant's operations in and maintenance and use
of the premises; and (iv) Tenant's liability assumed under this lease, the
limits of such policy or policies to be in the amount of not less than
$1,000,000.00 per occurrence in respect to injury to persons (including death),
and in the amount of not less than $100,000.00 per occurrence in respect to
property damage or destruction, including loss of use thereof. All such policies
shall be procured by Tenant from responsible insurance companies satisfactory to
Landlord. Certificates evidencing of such policies, together with receipt
evidencing payment of premiums therefor, shall be delivered to Landlord prior to
the commencement date of this lease. Not less than fifteen (15) days prior to
the expiration date of any such policies, certificates evidencing the renewals
thereof (bearing notations evidencing the payment of renewal premiums) shall be
delivered to Landlord. Such policies shall further provide that not less than
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thirty (30) days written notice shall be given to Landlord before such policy
may be cancelled or changed to reduce insurance provided thereby. (See
Additional Provision #39.)
14. Condemnation.
A. If the whole or any substantial part of the premises should be
taken for any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof and the taking would prevent or materially interfere with the use of the
premises for the purposes for which they are being used, this lease shall
terminate and the rent shall be abated during the unexpired portion of this
lease, effective when the physical taking of said premises shall occur.
B. If part of the premises shall be taken for any public or
quasi-public use under any governmental law, ordinance or regulation, or by
right of eminent domain, or by private purchase in lieu thereof, and this lease
is not terminated as provided in the subparagraph above, this lease shall not
terminate but the rent payable hereunder during the unexpired portion of this
lease shall be reduced to such extent as may be fair and reasonable under all of
the circumstances.
C. All compensation awarded for any taking (or the proceeds of private
sale in lieu thereof) of the premises, buildings or other improvements, or any
part thereof, shall be the property of Landlord and Tenant hereby assigns its
interest in any such award to Landlord; provided, however, Landlord shall have
no interest in any award made to Tenant for loss of business or for the taking
of Tenant's fixtures and improvements if a separate award for such items is made
to Tenant.
15. Holding Over. Tenant will, at the termination of this lease by
lapse of time or otherwise, yield up immediate possession to Landlord with all
repairs and maintenance required herein to be performed by Tenant completed. If
Landlord agrees in writing that Tenant may hold over after the expiration or
termination of this lease, unless the parties hereto otherwise agree in writing
on the terms of such holding over, the hold over tenancy shall be subject to
termination by Landlord at any time upon not less than five (5) days advance
written notice, or by Tenant at any time upon not less than thirty (30) days
advance written notice, and all of the other terms and provisions of this lease
shall be applicable during that period, except that Tenant shall pay Landlord
from time to time upon demand, as rental for the period of any hold over, an
amount equal to double the rent in effect on the termination date, computed on a
daily basis for each day of the hold over period. No holding over by Tenant,
whether with or without consent of Landlord, shall operate to extend this lease
except as otherwise expressly provided. The preceding provisions of this
paragraph 15 shall not be construed as consent for Tenant to hold over.
16. Quiet Enjoyment. Landlord covenants that it now has good title to
the premises, free and clear of all liens and encumbrances, excepting only the
lien for current taxes not yet due, such mortgage or mortgages as are permitted
by the terms of this lease, zoning ordinances and other building and fire
ordinances and governmental regulations relating to the use of such property,
and easements, restrictions and other conditions of record. Landlord represents
and warrants that it has full right and authority to enter into this lease and
that Tenant, upon paying the rental herein set forth
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and performing its other covenants and agreements herein set forth, shall
peaceably and quietly have, hold and enjoy the premises for the term hereof
without hindrance or molestation from Landlord, subject to the terms and
provisions of this lease.
17. Events of Default. The following events shall be deemed to be
events of default by Tenant under this lease:
A. Tenant shall fail to pay any installment of the rent herein
reserved when due, or any other payment or reimbursement to Landlord required
herein when due, and such failure shall continue for a period of ten (10) days
from the date such payment was due.
B. Tenant or any guarantor of Tenant's obligations hereunder shall
generally not pay its debts as they become due or shall admit in writing its
inability to pay its debts or shall make a general assignment for the benefit of
creditors, or Tenant or any such guarantor shall commence any case, proceeding
or other action seeking to have an order for relief entered on its behalf as a
debtor or to adjudicate it as bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, liquidation, dissolution, or composition of it or its
debts under any law relating to bankruptcy, insolvency, reorganization or relief
of debtors or seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or of any substantial part of its property,
or Tenant or any such guarantor shall take any action to authorize or in
contemplation of any of the actions set forth above in this paragraph, or
C. Any case, proceeding or other action against Tenant or any
guarantor of Tenant's obligations hereunder shall be commenced seeking to have
an order for relief entered against it as debtor or to adjudicate it as bankrupt
or insolvent, or seeking reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors, or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or any substantial part of its property.
D. A receiver to trustee shall be appointed for all or substantially
all of the assets of Tenant.
E. Tenant shall desert or vacate any substantial portion of the
premises.
F. Tenant shall fail to discharge any lien placed upon the premises in
violation of Paragraph 22 hereof within twenty (20) days after any such lien or
encumbrance is filed against the premises.
G. Tenant shall fail to comply with any term, provision or covenant of
this lease (other than the foregoing in this Paragraph 17), and shall not cure
or commence to cure and diligently pursue to completion such failure within
twenty (20) days after written notice thereof to Tenant.
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H. Tenant shall fail to continuously operate its business at the
premises for the permitted use set forth in Paragraph 3 whether or not Tenant is
in default of the rental payments due under this lease.
18. Remedies.
A. Upon the occurrence of any of such events of default described in
Paragraph 17 hereof, Landlord shall have the option to pursue any one or more of
the following remedies without any notice or demand whatsoever:
(1) Terminate this lease, in which event Tenant shall
immediately surrender the premises to Landlord, and if
Tenant fails so to do, Landlord may, without prejudice
to any other remedy which it may have for possession
or arrearage in rent, enter upon and take possession
of the premises and expel or remove Tenant and any
other person who may be occupying such premises or any
part thereof, by force if necessary, without being
liable for prosecution or any claim of damages
therefore.
(2) Enter upon and take possession of the premises and
expel or remove Tenant and any other person who may be
occupying such premises or any part thereof, by force
if necessary, without being liable for prosecution or
any claim for damages therefore.
(3) Enter upon the Premises, by force if necessary,
without being liable for prosecution or any claim for
damages therefore, and do whatever Tenant is obligated
to do under the terms of this lease; and Tenant agrees
to reimburse Landlord on demand for any expenses which
Landlord may incur in thus effecting the compliance
with Tenant's obligations under this Lease, and Tenant
further agrees that Landlord shall not be liable for
any damages resulting to the Tenant from such action,
whether caused by the negligence of Landlord or
otherwise.
(4) Alter all locks and other security devices at the
premises without terminating this lease.
B. In the event Landlord may elect to regain possession of the
premises by a forcible detainer proceeding, Tenant hereby specifically waives
any statutory notice which may be required prior to such proceeding, and agrees
that Landlord's execution of this lease is, in part, consideration of this
waiver.
C. In the event Tenant fails to pay any installment of rent hereunder
as and when such installment is due, to help defray the additional cost to
Landlord for processing such late payments Tenant shall pay to Landlord on
demand a late charge in an amount equal to five (5%) percent of such
installment; and the failure to pay such amount within five (5) days after
demand therefore
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shall be an event of default hereunder. The provision for such late charge shall
be in addition to all of Landlord's other rights and remedies hereunder or at
law and shall not be construed as liquidated damages or as limiting Landlord's
remedies in any manner.
D. In the event Tenant's check, given to Landlord in payment, is
returned by the bank for non-payment, Tenant agrees to pay all expenses incurred
by Landlord as a result thereof.
E. Exercise by Landlord of any one or more remedies hereunder granted
or otherwise available shall not be deemed to be an acceptance or surrender of
the premises by Tenant, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written agreement of
Landlord and Tenant. No such alteration of locks or other security devices and
no removal or other exercise of dominion by Landlord over the property of Tenant
or others at the premises shall be deemed unauthorized or constitute a
conversion, Tenant hereby consenting, after any event of default, to the
aforesaid exercise of dominion over Tenant's property within the premises. All
claims for damages by reason of such re-entry and/or repossession and/or
alteration of locks or other security devices are hereby waived, as are all
claims for damages by reason of any distress warrant, forcible detainer
proceedings, sequestration proceedings or other legal process. Tenant agrees
that any re-entry by Landlord may be pursuant to judgment obtained in forcible
detainer proceedings or other legal proceedings or without the necessity for any
legal proceedings, as Landlord may elect, and Landlord shall not be liable for
trespass or otherwise.
F. Omitted.
G. In the event that Landlord elects to repossess the premises without
terminating the lease, or in the event Landlord elects to terminate the lease,
then Tenant, at Landlord's option, shall be liable for and shall pay to
Landlord, at the address specified for notice to Landlord herein, all rental and
other indebtedness accrued to the date of such repossession, plus rental
required to be paid by Tenant to Landlord during the remainder of the lease term
until the date of expiration of the term as stated in Paragraph 1 diminished by
any net sums thereafter received by Landlord through reletting the premises
during said period (after deducting expenses incurred by Landlord as provided in
subparagraph 18H below). In no event shall Tenant be entitled to any excess of
any rental obtained by reletting over and above the rental herein reserved.
Actions to collect amounts due by Tenant to Landlord under this subparagraph may
be brought from time to time, on one or more occasions, without the necessity of
Landlord's waiting until expiration of the lease term.
H. In case of any event of default or breach by Tenant, or threatened
or anticipatory breach or default, Tenant shall also be liable for and shall pay
to Landlord, at the address specified for notice to Landlord herein, in addition
to any sum provided to be paid above, brokers' fees incurred by Landlord in
connection with reletting the whole or any part of the premises; the costs of
removing and storing Tenant's or other occupant's property; the costs of
repairing, altering, remodeling or otherwise putting the premises into condition
acceptable to a new tenant or tenants, and all reasonable expenses incurred by
Landlord in enforcing or defending Landlord's rights and/or remedies including
reasonable attorney's fees.
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I. In the event of termination or repossession of the premises for an
event of default, Landlord shall not have any obligation to relet or to attempt
to relet the premises, or any portion thereof; and in the event of reletting,
Landlord may relet the whole or any portion of the premises for any period to
any tenant and for any use and purpose.
J. If Tenant should fail to make any payment or cure any default
hereunder within the time herein permitted, Landlord, without being under any
obligation to do so and without thereby waiving such default, may make such
payment and/or remedy such other default for the account of Tenant (and enter
the premises for such purpose), and thereupon Tenant shall be obligated to, and
hereby agrees, to pay Landlord upon demand, all costs, expenses and
disbursements (including reasonable attorney's fees) incurred by Landlord in
taking such remedial action.
K. In the event that Landlord shall have taken possession of the
premises pursuant to the authority herein granted then Landlord shall have the
right to keep in place and use all of the furniture, fixtures and equipment at
the premises, including that which is owned by or leased to Tenant at all times
prior to any foreclosure thereon by Landlord or repossession thereof by any
lessor thereof or third party having a lien thereon. Landlord shall also have
the right to remove from the premises (without the necessity of obtaining a
distress warrant, writ of sequestration or other legal process) all or any
portion of such furniture, fixtures, equipment and other property located
thereon and to place same in storage at any premises within the County in which
the premises is located; and in such event, Tenant shall be liable to Landlord
for costs incurred by Landlord in connection with such removal and storage.
Landlord shall also have the right to relinquish possession of all or any
portion of such furniture, fixtures, equipment and other property to any person
("Claimant") claiming to be entitled to possession thereof who presents to
Landlord a copy of any instrument represented to Landlord by Claimant to have
been executed by Tenant (or any predecessor Tenant) granting Claimant the right
under various circumstances to take possession of such furniture, fixtures,
equipment or other property, without the necessity on the part of Landlord to
inquire into the authenticity of said instrument's copy of Tenant's or Tenant's
predecessor's signature(s) thereon and without the necessity of Landlord making
any nature of investigation or inquiry as to the validity of the factual or
legal basis upon which Claimant purports to act; and Tenant agrees to indemnity
and hold Landlord harmless from all cost, expense, loss, damage and liability
incident to Landlord's relinquishment of possession of all or any portion of
such furniture, fixtures, equipment or other property to Claimant. The rights of
Landlord herein stated shall be in addition to any and all other rights which
Landlord has or may hereafter have at law or in equity; and Tenant stipulates
and agrees that the rights herein granted Landlord are commercially reasonable.
L. Notwithstanding anything in this lease to the contrary, all amounts
payable by Tenant to or on behalf of Landlord under this lease, whether or not
expressly denominated as rent, shall constitute rent for the purposes of the
Bankruptcy Code, 11 U.S.C. ss.502(b)(7).
M. This is a contract under which applicable law excuses Landlord from
accepting performance from or rendering performance to any person or entity
other than Tenant within the meaning of the Bankruptcy Code, 11 U.S.C.
ss.365(c), 365(e)(2).
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N. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, any and all monies or other considerations
payable or otherwise to be delivered in connection with such assignment shall be
paid or delivered to Landlord, shall be and remain the exclusive property of
Landlord and shall not constitute property of Tenant or of the estate of Tenant
within the meaning of the Bankruptcy Code. Any and all monies or other
considerations constituting Landlord's property under the preceding sentence not
paid or delivered to Landlord shall be held in trust for the benefit of Landlord
and be promptly paid or delivered to Landlord.
O. Any person or entity to which this lease is assigned pursuant to
the provisions of the Bankruptcy Code, shall be deemed, without further act or
deed, to have assumed all of the obligations arising under this Lease on and
after the date of such assignment. Any such assignee shall upon demand execute
and deliver to Landlord an instrument confirming such assumption.
19. Omitted.
20. Mortgages. Tenant accepts this lease subject and subordinate to any
mortgage(s) and/or deed(s) of trust now or at any time hereafter constituting a
lien or charge upon the premises or the improvements situated thereon, provided
however, that if the mortgagee, trustee, or holder of any such mortgage or deed
of trust elects to have Tenant's interest in this lease superior to any such
instrument, then by notice to Tenant from such mortgagee, trustee or holder,
this lease shall be deemed superior to such lien, whether this lease was
executed before or after said mortgage or deed of trust. Tenant shall at any
time hereafter on demand execute any instruments, releases or other documents
which may be required by any mortgagee for the purpose of subjecting and
subordinating this lease to the lien of any such mortgage.
21. Landlord's Default. In the event Landlord should become in default
in any payments due on any such mortgage described in Paragraph 20 hereof or in
the payment of taxes or any other items which might become a lien upon the
premises and which Tenant is not obligated to pay under the terms and provisions
of this lease, Tenant is authorized and empowered after giving Landlord five (5)
days prior written notice of such default and Landlord's failure to cure such
default, to pay any such items for and on behalf of Landlord, and the amount of
any item so paid by Tenant for or on behalf of Landlord, together with any
interest or penalty required to be paid in connection therewith, shall be
payable on demand by Landlord to Tenant; provided however, that Tenant shall not
be authorized and empowered to make any payment under the terms of this
Paragraph 21 unless the item paid shall be superior to Tenant's interest
hereunder. In the event Tenant pays any mortgage debt in full, in accordance
with this paragraph, it shall, at its election, be entitled to the mortgage
security by assignment or subrogation.
22. Mechanics Liens and Other Taxes.
A. Tenant shall have no authority, express or implied, to create or
place any lien or encumbrance of any kind or nature whatsoever upon, or in any
manner to bind the interests of Landlord in the premises or to charge the
rentals payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may furnish materials or perform labor for any
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construction or repairs, and each such claim shall affect and each such lien
shall attach to, if at all, only the leasehold interest granted to Tenant by
this instrument. Tenant covenants and agrees that it will pay or cause to be
paid all sums legally due and payable by it on account of any labor performed or
materials furnished in connection with any work performed on the premises on
which any lien is or can be validly and legally asserted against its leasehold
interest in the premises or the improvements thereon and that it will save and
hold Landlord harmless from any and all loss, cost or expense based on or
arising out of asserted claims or liens against the leasehold estate or against
the right, title and interest of the Landlord in the premises or under the terms
of this lease. Tenant agrees to give Landlord immediate written notice if any
lien or encumbrance is placed on the premises.
B. Tenant shall be liable for all taxes levied or assessed against
personal property, furniture or fixtures placed by Tenant in the premises. If
any such taxes for which Tenant is liable are levied or assessed against
Landlord or Landlord's property and if Landlord elects to pay the same or if the
assessed value of Landlord's property is increased by inclusion of personal
property, furniture or fixtures placed by Tenant in the premises, and Landlord
elects to pay the taxes based on such increase, Tenant shall pay to Landlord
upon demand that part of such taxes.
23. Omitted.
24. Certain Rights Reserved to Landlord. Landlord reserves and may
exercise the following rights without affecting Tenant's obligations hereunder:
(a) to change the name, street address, or suite numbers of the building; (b) to
install or maintain a sign or signs on the exterior of the building.
25. Notices. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivery of any notice or the making of any payment
by Landlord to Tenant or with reference to the sending, mailing or delivery of
any notice or the making of any payment by Tenant to Landlord shall be deemed to
be complied with when and if the following steps are taken:
A. All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address hereinbelow set
forth or at such other address as Landlord may specify from time to time by
written notice delivered in accordance herewith. Tenant's obligations to pay
rent and any other amounts to Landlord under the terms of this lease shall not
be deemed satisfied until such rent and other amounts have been actually
received by Landlord.
B. All payments required to be made by Landlord to Tenant hereunder
shall be payable to Tenant at the address hereinbelow set forth, or at such
other address within the continental United States as Tenant may specify from
time to time by written notice delivered in accordance herewith.
C. Any notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered whether actually received or not when
deposited in the United States Mail,
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postage prepaid, Certified or Registered Mail, addressed to the parties hereto
at the respective addresses set out below, or at such other address as they have
theretofore specified by written notice delivered in accordance herewith:
LANDLORD: TENANT:
PEACHTREE CROSSINGS BUSINESS XXXXX MICROCOMPUTER PRODUCTS,
PARK ASSOCIATES INC., a Georgia Corporation
x/x Xxxxxxxx Xxxx Xxxxxxx X. X. Xxx 000000
0000 Xxxxxxxxx Xxxxx, X.X. Xxxxxxx, Xxxxxxx 00000
Xxxxxxxx 000, Xxxxx 000 Attention: President
Xxxxxxx, Xxxxxxx 00000
If and when included within the term "Landlord," as used in this instrument,
there are more than one person, firm or corporation, all shall jointly arrange
among themselves for their joint execution of such a notice specifying some
individual at some specific address for the receipt of notices and payments to
Landlord; if and when included within the term "Tenant," as used in this
instrument, there are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Tenant. All parties
included within the terms "Landlord" and "Tenant," respectively, shall be bound
by notices given in accordance with the provisions of this paragraph to the same
effect as if each had received such notice.
26. Hazardous Waste. The term "Hazardous Substances," as used in this
lease shall mean pollutants, contaminants, toxic or hazardous wastes, or any
other substances, the removal of which is required or the use of which is
restricted, prohibited or penalized by any "Environmental Law," which term shall
mean any federal, state or local law or ordinance relating to pollution or
protection of the environment. Tenant hereby agrees that (i) no activity will be
conducted on the premises that will produce any Hazardous Substance, except for
such activities that are part of the ordinary course of Tenant's business
activities that are part of the ordinary course of Tenant's business (the
"Permitted Activities") provided said Permitted Activities are conducted in
accordance with all Environmental Laws and have been approved in advance in
writing by Landlord; (ii) the premises will not be used in any manner for the
storage of any Hazardous Substances except for the temporary storage of such
materials that are used in the ordinary course of Tenant's business (the
"Permitted Materials") provided such Permitted Materials are properly stored in
a manner and location meeting all Environmental Laws and approved in advance in
writing by Landlord; (iii) no portion of the premises will be used as a landfill
or a dump; (iv) Tenant will not install any underground tanks of any type; (v)
Tenant will not allow any surface or subsurface conditions to exist or come into
existence that constitute, or with the passage of time may constitute, a public
or private nuisance; (vi) Tenant will not permit any Hazardous Substances to be
brought onto the premises, except for the Permitted Materials described below,
and if so brought or found located thereon, the same shall be immediately
removed, with proper disposal, and all required cleanup procedures shall be
diligently undertaken pursuant to all Environmental Laws. If, at any time during
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or after the term of the lease, the premises is found to be so contaminated or
subject to said conditions, Tenant agrees to indemnify and hold Landlord
harmless from all claims, demands, actions, liabilities, costs, expenses,
damages and obligations of any nature arising from or as a result of the use of
the premises by Tenant. The foregoing indemnification shall survive the
termination or expiration of this lease. See Additional Provision #40.
27. Miscellaneous.
A. Words of any gender used in this lease shall be held and construed
to include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires.
B. In the event the premises constitutes a portion of a multiple
occupancy building or building complex, Tenant's "proportionate share," as used
in this lease, shall mean a fraction, the numerator of which is the space
contained in the premises and the denominator of which is the entire space
contained in the building or building complex.
C. The terms, provisions and covenants and conditions contained in
this lease shall apply to, inure to the benefit of, and be binding upon the
parties hereto and upon their respective heirs, legal representatives,
successors and permitted assigns, except as otherwise herein expressly provided.
Landlord shall have the right to assign any of its rights and obligations under
this lease. Each party agrees to furnish to the other, promptly upon demand, a
corporate resolution, proof of due authorization by partners, or other
appropriate documentation evidencing the due authorization of such party to
enter into this lease.
D. The captions inserted in this lease are for convenience only and in
no way define, limit or otherwise describe the scope or intent of this lease, or
any provision hereof, or in any way affect the interpretation of this lease.
E. Tenant agrees from time to time within ten (10) days after request
of Landlord, to deliver to Landlord, or Landlord's designee a certificate of
occupancy (if applicable) to an estoppel certificate stating that this lease is
in full force and effect, the date to which rent has been paid, the unexpired
term of this lease and such other matters pertaining to this lease as may be
requested by Landlord. It is understood and agreed that Tenant's obligation to
furnish such estoppel certificates in a timely fashion is a material inducement
for Landlord's execution of this lease.
F. This lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
G. All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this lease shall survive the
expiration or earlier termination of the term hereof, including without
limitation all payment obligations with respect to taxes and insurance and all
obligations concerning the condition of the premises. Upon the expiration or
earlier termination of the term hereof, and prior to Tenant vacating the
premises, Tenant shall pay to Landlord any
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amount reasonably as necessary to put the premises, including without limitation
all heating and air conditioning systems and equipment therein, in good
condition and repair. Tenant shall also, prior to vacating the premises, pay to
Landlord the amount of Tenant's obligation hereunder for real estate taxes and
insurance premiums for the year in which the lease expires or terminates. All
such amounts shall be used and held by Landlord for payment of such obligations
of Tenant hereunder, with Tenant being liable for any additional costs therefore
upon demand by Landlord, or with any excess to be returned to Tenant after all
such obligations have been determined and satisfied, as the case may be. Any
security deposit held by Landlord shall be credited against the amount payable
by Tenant under this Subparagraph 27G.
H. If any clause or provision of this lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
lease, then and in that event, it is the intention of the parties hereto that
the remainder of this lease shall not be affected thereby, and it is also the
intention of the parties to this lease that in lieu of each clause or provision
of this lease that is illegal, invalid or unenforceable, there be added as a
part of this lease contract a clause or provision as similar in terms to such
illegal, invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
I. Because the premises are on the open market and are presently being
shown, this lease shall be treated as an offer with the premises being subject
to prior lease and such offer subject to withdrawal or non-acceptance by
Landlord or to other use of the premises without notice, and this lease shall
not be valid or binding unless and until accepted by Landlord in writing and a
fully executed copy delivered to both parties hereto.
J. All references in this lease to "the date hereof" or similar
references shall be deemed to refer to the last date, in point of time, on which
all parties hereto have executed this lease.
K. Time is of the essence of this lease and all of its provisions. This
lease in all respect shall be governed by the laws of the State of Georgia.
L. No animals shall be brought into or kept in or about the building.
M. Tenant agrees to comply with subdivision regulations, protective
covenants, or other restrictions of record that are applicable to the building
or building complex.
N. The duties and obligations of Tenant herein shall be binding upon
all or any of them. The duties and obligations of Tenant shall run and extend
not only to the benefit of the Landlord, as named herein, but to the following,
at the option of the following or any of them (i) any person by, through or
under which Landlord derives the right to lease the premises; (ii) the owner of
the premises; and (ii) holders of mortgage or rent assignment interests in the
premises, as their respective interests may appear; provided, however, nothing
contained herein shall be construed to obligate Tenant to pay rent to any person
other than the Landlord until such time as Tenant has been given written notice
of either an exercise of a rent assignment or the succession of some other party
to the interests of Landlord.
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28. Additional Provisions. See Additional Provisions Paragraphs 29
through 40 attached hereto and made a part hereof as if fully incorporated
herein and when in conflict with the printed portion of this lease, said
Additional Provisions shall prevail.
EXECUTED BY LANDLORD, this 13th day of August, 1993.
PEACHTREE CROSSINGS BUSINESS
PARK ASSOCIATES
Attest/Witness By: Xxxxxxx Xxxx Asset Services, Inc.
Its: Agent
By:/s/ Xxxx Xxxxxx
--------------------------------- -----------------------------------
Xxxx Xxxxxx
Title: Title: Executive Vice President
--------------------------
EXECUTED BY TENANT, this 10th day of August, 1993.
Attest/Witness XXXXX MICROCOMPUTER PRODUCTS,
INC., a Georgia corporation
/s/ Xxx Xxxxxxxxx
-------------------------------- By: /s/ Xxxxxx X. Xxxxx
-----------------------------------
Xxxxxx Xxxxx
Title: Contracts Administration Manager Title: President
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ADDITIONAL PROVISIONS
29. If any interest shall be earned on the Tenant's security deposit
provided for in Paragraph 2B hereof, such interest shall be the property of, and
shall be retained by, the Landlord without obligation to Tenant to account
therefore.
30. Tenant expressly agrees that the obligations incurred by Landlord
shall not constitute personal obligations of the officers, directors, trustees,
partners, joint venturers, members, stockholders, or other principals or
representatives of the Landlord. Tenant further agrees that it shall have
recourse against Landlord only to the extent of Landlord's assets for the
satisfaction of the obligations of the Landlord created under this Lease, and
not against the assets of such entity's officers, directors, trustees, partners,
joint venturers, members, stockholders, principals or representatives.
31. Landlord covenants and agrees that if Tenant shall desert, vacate
or abandon the leased premises prior to the expiration or early termination of
the Lease Agreement, Landlord shall use reasonable efforts to lease the leased
premises to another Tenant.
32. While this Lease is in full force and effect, provided Tenant is
not in default of the terms, covenants and conditions thereof, Tenant shall have
the sole right or option to extend the original term of this Lease Agreement for
a further consecutive term of twelve (12) months. Such extension or renewal of
the original term shall be on the same terms, covenants and conditions as
provided in the original term with the rent at the current rate at the time of
option. Notice of Tenant's intention to exercise this right or option must be
given in writing to Landlord on or before March 1, 1998, or the option contained
in this provision shall become null and void and of no effect. The right of
option to extend the original term of this Lease Agreement provided to Tenant
herein shall be for the exclusive benefit of the Tenant and shall terminate upon
the subletting of all or any part of the premises or assignment of this Lease.
33. Notwithstanding any terms or provisions of this Lease which may be
construed to the contrary, Landlord and Tenant agree that Landlord will conduct
common area maintenance on the premises and grounds around the premises. Said
common area maintenance will include, but not be limited to, fire sprinkler
water charges, irrigation, lawn maintenance, security patrol and outside light
maintenance. The cost of said common area maintenance will be paid on a monthly
basis by Tenant and will amount to approximately SEVEN HUNDRED FORTY AND NO/100
DOLLARS ($740.00) per month. Landlord agrees that the monthly amount paid by
Tenant shall be capped at a compounded rate of ten percent (10%) per annum.
However, in the event Landlord elects to discontinue services or elects to
provide additional services as may be necessary under Paragraph 6 of this lease,
the monthly common area maintenance charge will be adjusted to reflect the
change in services provided.
34. Landlord hereby covenants and agrees to use reasonable efforts to
cause any holder of a deed to secure debt or mortgage now or at any time
hereafter constituting a lien or charge upon
22
ADDITIONAL PROVISIONS CONT.
the premises or the improvements situated thereon to enter into a
non-disturbance agreement pursuant to which such holder shall agree that if it
shall acquire the ownership of the premises or the improvements situated thereon
through the exercise of a power of sale or other remedy provided for in such
deed to secure debt or mortgage, it shall permit Tenant to remain in possession
of the premises in accordance with the terms and provisions of this lease,
provided that Tenant shall continue to perform its duties and obligations
hereunder.
35. Landlord and Tenant shall each provide the other with certificates
evidencing the issuance of all policies of insurance required to be maintained
by them under the terms and provisions of this Lease. Such certificates shall be
so provided prior to the commencement date and, thereafter, not less than
fifteen (15) days prior to the expiration date of such policies.
36. Notwithstanding the provisions of Paragraph 3 herein, provided this
Lease Agreement is in full force and effect and Tenant is not in default of the
terms, covenants, and conditions thereof, Tenant shall have the sole right or
option to cancel this Lease Agreement at the end of the forty- eighth (48th)
month of the lease term by: (1) providing Landlord with prior written notice of
its desire to cancel this Lease Agreement on or before March 1, 1997, and (2)
simultaneously depositing with Landlord a cancellation fee to Landlord of ELEVEN
THOUSAND SIX HUNDRED FORTY-FIVE AND NO/100 DOLLARS ($11,645.00). Failure by
Tenant to provide said written notice and cancellation fee on or before March 1,
1997 shall render this right or option null and void, thus rendering this Lease
Agreement in full force through the original sixty (60) month lease term. The
right of option to cancel this Lease Agreement shall be for the exclusive
benefit of the Tenant and shall terminate upon the subletting of all or any part
of the premises or assignment of this Lease.
37. Notwithstanding the provisions of Paragraph 7 hereof, Tenant shall
have the option to remove the following improvements from the premises by the
date of termination of this Lease or upon earlier vacating of the premises
provided Tenant shall restore the premises to their original condition with
consideration for normal wear and tear. All such removals and restoration shall
be accomplished in a good workmanlike manner so as not to damage the primary
structure or structural qualities of the building and other improvements
situated on the premises:
(1) Security Systems (e.g. access control units, CCTV
equipment, magnetic lock sets, internal intercoms,
electric lock sets, etc.)
(2) Support equipment for specialized manufacturing.
(3) Life Safety/Control Panel.
(4) Telephone switching units.
(5) Air compressor units to support operations.
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23
ADDITIONAL PROVISIONS CONT.
(6) Specialized air conditioning units (localized small
self contained units-not roof units).
38. Notwithstanding the provisions of Paragraph 12 herein, Landlord
agrees to name Tenant as additional insured subject to the rights of the
mortgage holder on the insurance covering the building of which the premises are
a part.
39. Notwithstanding the provisions of Paragraph 13 herein, Tenant shall
indemnify Landlord, Landlord's agents and employees from any loss as detailed in
Paragraph 13, however, Tenant shall only be responsible for those costs that are
not insured by Tenant's insurance policy or policies.
40. Notwithstanding Paragraph 26 hereof, Landlord represents and
warrants that to the best of its knowledge and belief, there is no condition on
the premises which currently could be considered as a violation of any
Environmental Law and that to the best of its knowledge and belief no Hazardous
Substances are present in any form on or around the premises.
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24
EXHIBIT "A"
Approximately 30,378 square feet of office/warehouse space in a 30,378
square foot masonry and steel office/warehouse building located in Land Xxx 000
xx xxx 0xx Xxxxxxxx xx Xxxxxxxx Xxxxxx, Xxxxxxx; being more commonly known as
5454 Peachtree Crossings Xxxx Xxxxxxxxx Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxx
00000.
A-1
25
LEASE EXTENSION AND MODIFICATION AGREEMENT
THIS LEASE EXTENSION AND MODIFICATION AGREEMENT made and entered into
this 26th day of June, 1997, by and between PEACHTREE CROSSINGS BUSINESS PARK
ASSOCIATES (hereinafter referred to as "Landlord") and XXXXX MICROCOMPUTER
PRODUCTS, INC., a Georgia Corporation (hereinafter referred to as "Tenant").
W I T N E S S E T H:
WHEREAS, by Lease Agreement dated August 13, 1993, attached hereto as
Exhibit "A" and made a part hereof, Landlord leased to Tenant certain premises
(hereinafter referred to as the "Premises") situated at 0000 Xxxxxxxxx Xxxxxxx
Xxxx, Xxxxxxxx, Xxxxxxx 00000 containing 30,378 square feet; and
NOW, THEREFORE, in consideration of the mutual promises given one to
the other, the parties hereto intending to be legally bound, do hereby covenant
and agree as follows:
1. Said Lease Agreement dated August 13, 1993, attached hereto as
Exhibit "A" and made part hereof, is hereby extended for an additional
twenty-five (25) months commencing September 1, 1998 and expiring September 30,
2000.
2. Tenant's Base Monthly Rental beginning September 1, 1997 shall be
Seventeen Thousand Four Hundred Sixty-Eight and No/100 Dollars ($17,468.00) per
month.
3. Paragraph 32 and 36 of the Lease Agreement dated August 13, 1993
attached hereto as Exhibit "A" and made a part hereof, shall be null and void.
4. Except as herein modified and extended, all terms and conditions of
the Lease Agreement, dated August 13, 1993, attached hereto as Exhibit "A" and
made part hereof, shall remain in full force and effect.
5. The word "Landlord" herein shall be construed to include the said
Landlord, its successors and assigns and the word "Tenant" shall be construed to
include the said Tenant, its successors and assigns.
6. This Agreement shall be binding upon and inure to the benefit of the
parties, their respective heirs, successors and assigns.
26
IN WITNESS WHEREOF, the parties have executed this Lease Extension and
Modification Agreement in quadruplicate the day and year first written above.
WITNESS PEACHTREE CROSSINGS BUSINESS PARK ASSOCIATES
/s/ By: /s/
----------------------------- -----------------------------------------
Title:
--------------------------------------
WITNESS XXXXX MICROCOMPUTER PRODUCTS, INC., a
Georgia corporation
/s/ Xxx Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
----------------------------- -----------------------------------------
Title: Chairman
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