EXHIBIT 10.1
ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT
THIS ASSIGNMENT, ASSUMPTION AND CONSENT AGREEMENT (this "Agreement") is made as
of the 30th day of September 1997 (the "Effective Date") by and among Technology
Service Group, Inc., a Delaware corporation (hereinafter referred to as "TSG");
World Access, Inc. a Delaware corporation (hereinafter referred to as
"Assignee"); and McDonald Windward Partners II, L.L.C., a Georgia Limited
Partnership (hereinafter referred to as "Landlord").
1. Consideration. The parties are entering into this Agreement for and in
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
2. Background. Effective November 12, 1996, TSG and Landlord entered into that
certain lease relating to the premises at 0000 Xxxxxxxx Xxxxx Xxxxxxx (the
"Premises") (known as Building 200 at Windward Ridge) (the "Lease"). By
reason of certain events, TSG no longer has a need for the Premises and
wishes to assign the Lease to Assignee, and Assignee wishes to assume all
of TSG's obligations under the Lease. Having satisfied itself that the
credit-worthiness of Assignee is at least as good as that of TSG, Landlord
is willing to consent to the assignment of the Lease.
3. Assignment.
(a) TSG hereby sells, assigns and transfers to Assignee all of TSG's
right, title and interest in and to the Lease.
(b) TSG represents and warrants that a true, correct and complete copy of
the Lease is attached hereto as Exhibit A.
(c) TSG certifies that it has removed all hazardous materials from the
Premises by the effective date of this Agreement.
(d) TSG makes no other or further representations or warranties of any
kind or nature with respect to the Lease or the Premises.
4. Assumption.
(a) Assignee hereby assumes the obligations of TSG under the Lease and
accepts the Lease and the Premises as is, where is and with all
faults. Assignee agrees to tender to Landlord the security deposit in
the amount of $17,803.33 as required by the Lease upon signing of this
Agreement.
(b) Assignee agrees to defend, indemnify and hold TSG harmless from and
against any loss, cost, damage or expense (including reasonable
attorney's fees and expenses)
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that TSG may suffer arising from and after the date hereof out of the
Lease and/or Assignee's occupancy of the Premises.
5. Consent.
(a) Landlord hereby consents to the assignment to Assignee by TSG of all
of TSG's interests and obligations under the Lease and to the
assumption thereof by Assignee.
(b) Section 14.A. of the Lease to the contrary notwithstanding, effective
with this assignment of the Lease, Landlord agrees that TSG shall have
no further interest in the Lease or the Premises and shall have no
further obligation under the Lease of any kind or nature to Landlord
or to any person or entity claiming by, through or under Landlord,
other than indemnity obligations to Landlord under the Lease relating
to claims that accrued prior to the date of this Agreement.
(c) Landlord represents and warrants to Assignees that (i) Exhibit A is a
true, correct and complete copy of the Lease; (ii) the Lease is in
full force and effect as of the date hereof; (iii) no events of
default by Tenant under the Lease have occurred, and no events have
occurred that with the giving of notice or the lapse of time, or both,
would constitute an event of default under the Lease; and (iv) that
Landlord holds $17,803.33 as a security deposit from the Tenant under
the Lease. Landlord agrees to tender to TSG its security deposit in
the amount of $17,803.33 upon signing of this Agreement.
(d) All base rent, additional rent and all other amounts payable to
Landlord by "Tenant" under the Lease have been paid through and
including September 30, 1997, with the exception of amounts that will
be due to or receivable from Landlord as a result of the year-end
reconciliation of common area maintenance expenses and taxes which
shall be allocated between TSG and Assignee according to the number of
days the Lease was held by each of them during the year in question.
6. Clarification; Miscellaneous.
(a) With reference to Paragraph 32 of the Lease, and in clarification of
said Paragraph, Landlord, TSG, and Assignee agree that the Base Rent
under the Lease at Renewal shall increase by 15% and not 115% as
stated. Therefore, the Base Rent at Renewal shall be 115% of the Base
Rent in effect at the expiration of the initial term of the Lease.
(b) The effective commencement date of the Lease Agreement is April 1,
1997.
(c) This Agreement together with Exhibit A contains the entire
understanding of the parties on the subject matter hereof; shall not
be amended except by written agreement of the parties signed by all of
them; shall be binding upon and inure to the benefit of the parties
and their successors and assigns; and may be executed in one or more
counterparts each of which shall be deemed an original hereof, but all
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of which shall constitute but one and the same agreement.
(d) Each provision of this Agreement shall be interpreted and enforced
without the aid of any canon, custom or rule of law requiring or
suggestion construction against the party drafting or causing the
drafting of such provision.
(e) No representation, affirmation of fact, course of prior dealings,
promise or condition in connection herewith or usage of the trade not
expressly incorporated herein shall be binding on the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the day and year first above
written.
Technology Service Group, Inc. World Access, Inc.
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxx
----------------------------------- -----------------------------------
Xxxxxxx X. Xxxxxxxxx Xxxxxx X. Xxxx
President Chairman and Chief Executive Officer
Technology Service Group, Inc. World Access, Inc.
Attest: /s/ Xxxxxxx X. Xxxxxxxx Attest:_______________________________
------------------------------- Secretary
Secretary
[corporate seal] [corporate seal]
McDonald Windward Partners II, L.L.C.
By: /s/ Xxxx X. XxXxxxxx Attest:_______________________________
----------------------------------- Secretary
Name: Xxxx X. XxXxxxxx
Title: Managing Member
[corporate seal]
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