EXHIBIT 10.86
LEASE AGREEMENT
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This LEASE AGREEMENT, made and entered into by and between XxXXXXXX WINDWARD
PARTNERS IV, L. L. C., a Georgia limited liability company (hereinafter referred
to as "Tenant"):
W I T N E S S E T H:
1. Premises. For and in consideration of the obligation of Tenant to pay rent
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as herein provided, and in consideration of the other terms, provisions and
covenants hereof, Landlord hereby demises and leases to Tenant, and Tenant
hereby leases from Landlord certain premises (Suite 100), being
approximately 22, 400 square feet of space within the building located a t
0000 Xxxxxxxx Xxxxx Xxxxxxx (known as Building 400 at Windward Ridge),
situated within the County of Forsyth, State of Georgia, Described in
Exhibit "A" attached hereby and incorporated herein by reference, together
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with all rights, privileges, easements, and appurtenances belonging to or in
any way pertaining to said premises and together with the building and other
improvements situated or to be situated upon said premises (said real
property, building and improvements being hereinafter referred to as the
"Premises"). Landlord represents that it has not given to any other tenant
exclusive rights to parking around the building.
TO HAVE AND TO HOLD the premises for the Demised Term, as hereinafter
defined.
2. TERM. The term of this lease (hereinafter referred to as the "Demised Term")
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shall be for a period commencing on the Commencement Date, as hereinafter
defined, and ending one hundred twenty (120) months thereafter, unless
sooner terminated as provided in this Lease; provided, however, that, in the
event the Commencement Date is not the first day of a calendar month, the
Demised Term shall extend for the remainder of the calendar month in which
the Commencement Date occurs plus said number of months.
2A. CONSTRUCTION OF PREMISES.
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a. Within ten (10) days after the lease date, Landlord shall prepare, at
Landlord's sold cost and expense, and submit to Tenant a set of plans
and specifications and/or construction drawings (collectively, the
"Plans and Specifications") Based on the preliminary plans and
specifications and/or preliminary floor plans set forth on Exhibit
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"B" attached hereto and incorporated herein, covering all work to be
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performed by landlord in constructing the leasehold improvements to
be constructed in the Premises by or at the Expense of Landlord
(collectively, the "Improvements"). Tenant shall have ten (1) days
after receipt to approve the Plans and Specifications. After Tenant
has approved the Plans and Specifications requested by Tenant shall
by at tenant's
sole cost and expense and subject to Landlord's written approval,
which approval shall not be unreasonably withheld, conditioned or
delayed.
b. Upon substantial completion of the Improvements (the "Commencement
Date"), a representative of Landlord and representative of Tenant
together shall inspect the Premises and generate a punchlist of
defective or uncompleted items relating to the completion of
construction of the Improvements. Landlord shall, within thirty (3)
days after such punchlist is prepared and agreed upon by Landlord and
Tenant, complete such incomplete work and remedy such defective work
as are set forth on the punchlist.
c. Landlord hereby warrants to Tenant that the materials and equipment
(including the building system and other improvements) to be
furnished by Landlord's contractors in the completion of the
Improvements will be of good quality and new, that during the one (1)
year period following the Commencement Date, such materials and
equipment and the work of such contractors shall be free from defects
not inherent in the quality required or permitted hereunder, and that
such work will conform to the Plans and Specifications.
d. In the event that Landlord does not substantially complete the
Improvements on or before March 31, 1998, as extended by Delay (as
defined below), Landlord shall give Tenant credit towards Tenant's
monthly base rent in the amount of one (1) day's base rent for each
day after March 31, 1998 that Landlord does not substantially
complete the Premises. For purposes of this Lease, "Delay" shall mean
delays incurred by reason of Tenant's failure to approve the Plans
and Specifications as set forth above or changes requested by Tenant
in the Plans and Specifications before or after Tenant's approval
thereof that result in a delay in the completion of construction.
e. For purposes of this Lease, the term "substantial completion" or any
grammatical variation thereof shall mean sufficient completion" of
construction of the Premises in accordance with the Plans and
Specifications so that Tenant can lawfully occupy the Premises for
the uses permitted herein, subject only to minor punchlist items ,
the completion of which will not interfere with such permitted uses
by Tenant, as evidenced by the delivery by Landlord to Tenant of (I)
a certificate of Occupancy or its equivalent for the Premises issued
by the appropriate governmental authority if so required by
applicable law, and (ii) a Certificate of Substantial Completion on
standard AIA Form G-704 certified by Landlord's architect.
f. Landlord represents and warrants to tenant that, to Landlord's actual
knowledge, the design and construction of the Building materially
complies with all applicable federal, state, county and municipal
laws, ordinances and codes, expecting therefrom any requirements
related to Tenant's specific use of the Demised Premises.
g. Landlord, at its sole cost and expense, shall be responsible for
causing the Premises to comply with Title III of the Americans With
Disabilities of 1990 (the "ADA") or the regulations promulgated
thereunder, as said Title III pertains to the General public, as of
the Commencement Date.
h. After the Commencement Date, Tenant shall, upon demand, execute and
deliver a letter of acceptance of delivery of the Premises to
Landlord.
3. BASE RENT.
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a. Tenant agrees to pay Landlord rent for the Premises, in advance,
without demand, deduction or set off, for the Demised Term at the
rate of Twelve Thousand Nine Hundred Seventy-Three and 33/100
($12,973.33) Per month. One monthly rent installment shall be due and
payable on the date hereof and a like monthly rent installment shall
be due and payable on or before the first day of each calendar month
during the Denised Term, except that the rental payment for
fractional calendar month at the commencement or end of the Demised
Term shall be prorated on the basis of the thirty-day month.
b. Landlord and Tenant agree that the Base Rent set forth in Paragraph
3.a. above shall be increased annually on each anniversary date of
the Commencement Date during the Demised Term by three percent (3%),
which adjusted rental amount shall remain in effect for the next
twelve (12) consecutive months.
4. USE. The Premises shall be used only for the purpose of receiving, storing,
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shipping and selling products, materials and merchandise made on the
Premises and/or distributed by Tenant and for such other lawful purposes as
may be incidental thereto. 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 other
licenses and permits necessary for such use. Tenant shall comply with all
governmental laws, ordinances and regulations applicable to its specific 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
action which would constitute a nuisance or would disturb or endanger any
other tenants of the building or buildings in which the 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
thank the risk associated with Tenant's stated use or cause the State Board
of Insurance or other insurance authority to disallow any sprinkler credits.
Tenant shall not use the Premises for the generation, storage,
transportation or disposal of dangerous, toxic or hazardous materials,
chemicals, wastes or similar substances.
Without the prior consent of the Landlord, Tenant shall be entitled to use
at the Premises cleaning supplies, toner for photocopying machines and other
similar materials, in containers and ordinary use by Tenant in the routine
operation or maintenance of Tenant's office equipment or in the routine
janitorial service, cleaning and maintenance for the Premises. In addition,
Landlord acknowledges that as part of the business Tenant will conduct at
the Premises, a waste product known as solder flux is produced. Landlord
hereby consents to the presence on the Premises of such product as part of
Tenant's routine business provided that Tenant agrees that the storage,
handling and disposal of such products shall be in accordance with
environmental laws. Landlord represents that Landlord has not treated,
stored or disposed of any hazardous or toxic substances upon or within the
Premises, nor, to the best of Landlord's actual knowledge, has any
predecessor owner of the Premises.
5. TAXES.
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a. Landlord agrees to pay before delinquency, all taxes, assessments and
governmental charges of any kind and nature whatsoever (hereinafter
collectively referred to as "taxes") lawfully levied or
assessed against the Premises; provided, however, that the amount of
taxes to be paid by Landlord hereunder for the Premises during anyone
tax year shall be reimbursed to it by Tenant (the "Landlord's Tax
Share"). Tenant shall pay to Landlord as additional rental, upon
demand the amount of such taxes. In the event any such amount is not
paid within twenty (200 days after the date of Landlord's invoice to
Tenant, the unpaid amount shall bear interest a the rate of fifteen
percent (15%) per annum from the date of the invoice until payment by
Tenant.
In the event the Premises constitute a portion of a multiple
occupancy building or there are several buildings located in the tax
parcel in which the Premises are situated. Tenant agrees to pay to
Landlord, as additional rent, upon demand, the amount of Tenant's
"proportionate share" of the Landlord's Tax Share. Tenant's
"proportionate share", as used in this Lease, shall mean a fraction,
the numerator of which is gross square footage space contained in the
Premises and the denominator of which is the gross square footage
contained in the building or buildings located on the tax parcel in
which the Premises are situated.
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 charged, levied assessed or
imposed on real estate and the improvements thereon, there shall be
charged, 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 charged
measured by or based, in whole part, upon such 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
If Landlord does not elect to contest taxes, Tenant may request in
writing that Landlord contest taxes. Landlord may then elect to contest
taxes or allow Tenant to so contest taxes subject to Landlord's
reasonable approval of the firm or individual hired to protest taxes.
c. Landlord shall have the right (but no obligation) to employ a tax
consulting firm to attempt to assure a fair tax burden on the
buildings in which the Premises are located and grounds surrounding
the Premises within the applicable tax jurisdiction. Tenant shall
pay to Landlord upon demand from time to time, as additional rent,
the amount of Tenant's "proportionate share" (as defined in
subparagraph 5. a herein) of the reasonable cost of such service.
d. Any payment to be made pursuant to this Paragraph 5 shall be
prorated4ed in the event any portion of the Demised Term is not
within a full real estate tax year.
6. LANDLORD'S REPAIRS. Landlord shall at its expense maintain only the roof,
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foundation and the structural soundness of the exterior walls of the Premises in
good repair, reasonable wear and tear expected. Tenant shall repair and pay for
bay 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, special store
fronts or office entries. Tenant shall within a reasonable amount of time 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 failure to repair or cure such defect after a reasonable notice and
right-to-cure period (but in no event less than thirty (30) days) shall be a
default hereunder by Landlord. 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.
7. TENANT'S REPAIRS.
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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 which Landlord is
expressly responsible under the terms of this Lease) in good
condition, promptly making all necessary repairs and replacements,
including but not limited to, windows, glass and plate glass, doors
any special office entry, interior walls and finish work, floors and
floor covering, downsprouts, gutters, heating and air conditioning
systems, dock boards, truck doors, dock bumbers, paving plumbing work
and fixtures, interior termite and pest extermination, and regular
removal of trash and debris.
Tenant shall provide Landlord with prior notice of any repair to be
undertaken by Tenant and such other information as Landlord may
reasonably request with respect to such repair, except such notice shall
not be required if immediate repair is be necessary for security or
safety reasons.
b. Tenant shall not damage any wall or disturb the integrity and support
provided by any wall and shall, at its sole cost and expense,
promptly repair any damage or injury to any wall caused by Tenant or
its employees, agents or invites.
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 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.
d. Tenant shall, at its own cost and expense, enter into a regularly
scheduled preventive maintenance/service contract with a maintenance
contractor for serving al hot water, heating and air conditioning
systems and equipment within the Premises. The maintenance contractor
and the contract must be reasonably 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) no later than
thirty (3) days after the Commencement Date).
8. COMMON AREA MAINTENANCE. Tenant shall pay to Landlord as additional rent a
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common area operating and maintenance fee equal to Tenant's "proportionate
share" (as defined in subparagraph 5a herein) of the common areas of the
building and park in which the Premises are located, including, but not
limited to , the mowing of grass, care of shrubs, general landscaping,
common sewage, line plumbing, maintenance of building, parking areas,
entrances, driveways and management (no more than four percent (4%) of gross
rents for the Premises) thereof. If Tenant can be clearly identified as
being responsible for obstruction or stoppage of the common sanitary sewer,
the Tenant, if Tenant is responsible, shall pay the entire cost thereof,
upon demand, as addition rent. Payment shall be made on the first day of
each month based on the projected cost of such maintenance. At the end of
each year Landlord shall determine the actual costs of such maintenance. Any
additional costs due from Tenant based on the actual costs shall be promptly
paid by Tenant. Any savings will be paid promptly to Tenant after such
determination.
9. TENANT IMPROVEMENTS TO PREMISES. Except for nonstructural changes costing
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Five Thousand Dollars ($5,000.00) or less per change, Tenant shall not make
any alterations, additions or improvements to the Premises, exterior or
interior, without the prior written consent of Landlord, except for
unattached movable fixtures which may be installed without drilling, cutting
or otherwise defacing, damaging or
overloading the Premises. All alterations, additions or improvements 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 provided below,
remove all alterations, additions or improvements erected by Tenant and
restore the Premises to their original Condition, reasonable wear and tear
excepted, by the date of the termination of this Lease. Tenant may not use
or penetrate the roof of the Premises for any purpose whatsoever without
landlord's prior written consent. All construction work done by Tenant 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 transactions business in the building or buildings in
which the Premises are located.
10. SIGNAGE. Tenant shall not install any signs visible from outside the
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Premises except with the prior written consent of Landlord. Any permitted
signs shall be maintained in compliance with applicable governmental rules
and regulations governing such signs. Tenant shall be responsible to
Landlord for any damage caused by the installation, use or maintenance of
said signs. Tenant agrees, upon removal of said signs, to repair all damage
incidental thereto.
11. RIGHT OF ENTRY; INSPECTION. Upon reasonable notice to Tenant (except in case
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of an emergency), Landlord and Landlord's agents and representatives shall
have the right to enter and inspect the Premises at any reasonable time
during business hours, to ascertain the condition of the Premises, to make
such repairs as may be required or permitted to be made by Landlord under
the terms of this Lease, or, within the last year of the Demised Term, to
show the Premises to prospective purchasers or tenants. Landlord
