Exhibit 10.33 Lease Agreement between Technology Service Group, Inc. and
▇▇▇▇▇▇▇▇ Windward Partners II, L.L.C. dated November 12, 1996
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LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between TECHNOLOGY
SERVICE GROUP, INC., a Delaware corporation (hereinafter referred to as
"Tenant"), and McDONALD WINDWARD PARTNERS II, L.L.C., a Georgia limited
liability company (hereinafter referred to as "Landlord");
W I T N E S S E T H
1. PREMISES. For and 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 leases from Landlord certain premises being approximately 39,200 square
feet of space within the building located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ (known
as ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇), ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, described in
Exhibit "A" attached hereto and incorporated herein by reference, together with
all rights, privileges, easements, and appurtenances belonging to or in any way
pertaining to said 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 Premises for the Demised Term, as hereinafter
defined.
2. TERM. The term of this lease (hereinafter referred to as the "Demised
Term") shall be for a period commencing on the Commencement Date, as hereinafter
defined, and ending sixty (60) 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.
The "Commencement Date" shall be the date upon which the buildings and
other improvements erected and to be erected upon the Premises shall have been
substantially completed in accordance with the plans and specifications
described on Exhibit "B" attached hereto and incorporated herein by reference.
Landlord shall notify Tenant in writing as soon as Landlord deems said buildings
and other improvements to be completed and ready for occupancy as aforesaid. In
the event that said buildings and other improvements have not in fact been
substantially completed as aforesaid, Tenant shall notify Landlord in writing of
its objections. Landlord shall have a reasonable time after delivery of such
notice in which to take such corrective action as may be necessary, and shall
notify Tenant in writing as soon as it deems such corrective action has been
completed so that said buildings and other improvements are completed and ready
for occupancy. Taking of possession by Tenant shall be deemed conclusively to
establish that said buildings and other improvements have been completed in
accordance with the plans and specifications and are in good and satisfactory
condition. In the event of any dispute as to substantial completion of work
performed or required to be performed by Landlord, or the date of substantial
completion of such work, the certificate of Landlord's architect or general
contractor shall be conclusive. Tenant acknowledges that no representations as
to the condition of the Premises have been made by Landlord, unless such are
expressly set forth in this lease. After the Commencement Date, Tenant shall,
upon demand, execute and deliver to Landlord a letter of acceptance of delivery
of the Premises.
3. BASE RENT. 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 Seventeen Thousand Eight Hundred Three and 33/100 Dollars ($17,803.33) 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 Demised Term, except that the rental
payment for any fractional calendar month at the commencement or end of the
Demised Term shall be prorated on the bases of a thirty-day month.
In the event the Commencement Date occurs on or before December 31, 1996,
Base Rent under this Paragraph 3 shall ▇▇▇▇▇ during the period beginning on the
Commencement Date and ending on January 31, 1997. In the event the Commencement
Date occurs on or after January 1, 1997, Base Rent under this Paragraph 3 shall
▇▇▇▇▇ during a thirty-day period beginning on the Commencement Date.
4. SECURITY DEPOSIT. Tenant agrees to deposit with Landlord on the date
hereof, in addition to the rent specified in Paragraph 3, the sum of Seventeen
Thousand Eight Hundred Three and 33/100 Dollars ($17,803.33), which sum shall be
held by Landlord, without obligation for interest (except as may be required by
law), 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 payment or a measure of Landlord's damages in case of
Tenant's default. Upon the occurrence of any event of default by Tenant under
this lease, Landlord may (but without obligation to do so), from time to time,
without prejudice to any other remedy provided herein or provided by law or in
equity, use this security deposit to the extent necessary
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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.
Tenant shall pay Landlord, on demand, the amount of the security deposit so
applied in order to restore the security deposit to its original amount. This
security deposit shall be deemed the property of Landlord, but 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.
5. USE. The Premises shall be used only for the purpose of receiving,
storing, shipping and selling (other than at retail) and fabricating /
assembling printed circuit boards and products, materials and merchandise made
and/or distributed by Tenant and for such other lawful purposes as may be
incidental thereto, including headquarters offices and administrative functions
of the Tenant. Outside storage, including without limitation, trucks and other
vehicles, is prohibited without Landlord's prior written consent; provided,
however, that Landlord consents to the parking of Tenant's trucks (bobtail and
tractor-trailer), and the use by Tenant of a trash compactor or similar
receptacle, at Tenant's loading docks at the rear of the building. Tenant shall
at its own cost and expense obtain any and all other 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 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 inflammable. 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. Tenant
shall not use the Premises for the generation, storage, transportation or
disposal of dangerous, toxic or hazardous materials, chemicals, wastes or
similar substances, except as hereinafter provided below.
Tenant's permitted use of the Premises shall also include printed circuit
board insertion and product assembly operations, soldering and wave-flow
operations, sapanofiers in aqueous cleaning operations with recycling system,
and conformal coating and painting operations. All of Tenant's operations shall
be performed in accordance with acceptable industry standards and shall comply
with all environmental regulations.
Tenant's permitted use of the Premises shall further include the use,
receipt, storage, and handling of: (a) explosive or highly flammable material,
as identified by Tenant on Exhibit "C"; and (b) hazardous materials and related
waste, and the discharge of gases and fumes (by means of external equipment
venting through exhaust curbs), all as identified by Tenant on Exhibit "C".
Tenant may, after receipt of Landlord's written consent (which consent shall not
be unreasonably withheld), modify the list on Exhibit "C" to include additional
materials reasonably required by Tenant in the conduct of its business. Tenant
warrants and agrees: (c) to store, as necessary, all flammable substances in
UL-approved flammable liquid storage cabinets; and (d) to store all hazardous
materials and waste in appropriate containers and at an appropriate location on
the Premises, and to dispose of hazardous waste using state-approved and
licensed subcontractors.
6. TAXES.
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
Premises; provided, however, that the maximum amount of taxes to be paid by
Landlord hereunder for the Premises during any one real estate tax year shall be
$.15 per square foot. (the "Landlord's Tax Share"). If in any real estate tax
year during the Demised Term hereof or in any renewal or extension period the
taxes levied or assessed against the Premises 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 thirty (30) days after the date of Tenant's receipt of
Landlord's invoice, the unpaid amount shall bear interest at 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 taxes in excess
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.
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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 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 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 (but no obligation) to employ a
tax consulting firm to attempt to assure a fair tax burden on the building or
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 6.A herein) of the cost of such service.
D. Any payment to be made pursuant to this Paragraph 6 shall be
prorated in the event any portion of the Demised Term is not within a full real
estate tax year.
7. LANDLORD'S REPAIRS. Landlord shall at its expense maintain only the
roof, foundation and the structural soundness of the exterior walls of the
Premises 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,
special store fronts or office entries. Tenant shall immediately give Landlord
written notice of defects 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 defects.
8. TENANT'S REPAIRS.
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 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, heating and air condition systems, dock boards, truck doors,
dock bumpers, plumbing work and fixtures, 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 costing in excess of $5,000 (in Tenant's reasonable
estimation) 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 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 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 located directly in front and to
the rear of the Premises (as expanded or contracted in the future), subject to
such reasonable rules and regulations as Landlord may from time to time
prescribe to rights of ingress and egress of other tenants. Parking in the
street, in the drive along the side of the building, or in the flow of traffic
to the rear of the building is prohibited. 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 all hot water, heating and air conditioning systems and equipment
within the Premises. The 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) no later than thirty
(30) days after the Commencement Date).
9. COMMON AREA MAINTENANCE. Tenant shall pay to Landlord as additional rent
a common area operating and maintenance fee equal to Tenant's "proportionate
share" (as defined in subparagraph 6.A. herein) of the cost and expense for the
operation and maintenance 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 thereof. Landlord
estimates that the common area maintenance charges for 1997 will be $0.31 per
square foot. 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
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is responsible, or such other responsible tenant, shall pay the entire cost
thereof, upon demand, as additional 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 credited against the following year's
payments.
10. TENANT IMPROVEMENTS TO PREMISES. 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; provided, however, that Tenant may anchor (or
otherwise secure to the floor) its business equipment and fencing, which
equipment and fencing shall be removed by Tenant by the date of termination of
this lease, and Tenant shall repair all damages caused by the installation or
removal thereof. 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, 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 termination of this lease; provided, however, that if Landlord so elects
prior to termination of this lease, such alterations, additions or improvements,
with the exception of Tenant's business equipment discussed in the previous
sentence, shall become the property of Landlord as of the date of 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. Any roof
penetrations and exhaust curbs necessary for the ventilation of Tenant's
equipment shall be performed and/or installed by Landlord's contractor of
choice, at Tenant's sole expense. 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
transaction of business in the building or buildings in which the Premises are
located.
11. SIGNAGE. Tenant shall not install any signs visible from outside the
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 (including
discoloration) incident thereto.
12. RIGHT OF ENTRY; INSPECTION. Landlord and Landlord's agents and
representatives shall have the right, upon twenty-four hours notice (except in
the case of emergencies), 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 to show the Premises to prospective purchasers or
tenants for spaces other than the Premises, or to show, during the last six (6)
months of the Demised Term, the Premises for re-leasing. Landlord shall have the
right to place or erect on the Premises a suitable sign indicating the Premises
are available for rent during the last six (6) months of the Demised Term. As a
condition to entry, Landlord and Landlord's agents and representatives shall
observe Tenant's reasonable security and confidentiality rules, except in the
case of emergencies.
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 a 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.
13. UTILITIES. Landlord agrees to provide at its cost water, electricity
and telephone 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 in 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. Landlord shall in no event be liable for any interruption
or failure of utility services on the Premises.
14. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not, directly or indirectly, have the right to assign
this lease or to sublet the whole or any part of the Premises without the prior
written consent of Landlord. Consent to any assignment or sublease shall not be
deemed a waiver of the right of Landlord to approve or disapprove a further
assignment or subletting. Notwithstanding any permitted assignment or
subletting, Tenant shall at all times remain directly, primarily and fully
responsible and liable for the payment of the rent herein specified and for
compliance with all if its other obligations under the terms, provisions and
covenants of this lease. 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
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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
constructed to constitute a novation or a release of Tenant from the further
performance of Tenant's obligations hereunder. For purposes of this Paragraph
14, each of the following events shall be deemed to be an assignment:
(i) if Tenant is a partnership, a dissolution of the partnership or a
change in ownership, legal or beneficial, of 50% or more of the
partnership interests, whether by withdrawal or admission, voluntary
or by operation of law;
(ii) if Tenant is a corporation, the dissolution, consolidation or merger
of Tenant (except a consolidation or merger in which Tenant is the
surviving company) or the sale or transfer to a single buyer of more
than 50% of the voting stock of Tenant; or
(iii)distribution or sale of over 50% of the value of Tenant's assets (net
of undistributed consideration received) excluding the sale of
inventory other than a bulk sale.
B. In the event that Tenant assigns this lease or sublets the Premises
or any part thereof, as permitted herein, and at any time received rent and/or
other consideration which exceeds that which Tenant would at that time be
obligated to pay Landlord, Tenant shall pay to Landlord 100% of the gross excess
in such rent as such rent is received by Tenant and 100% of any other
consideration received by Tenant from such assignee or subtenant. In addition,
should Landlord agree to an assignment or sublease agreement, Tenant will pay to
Landlord on demand a sum equal to all Landlord's costs, including reasonable
attorney's fees, incurred in connection with such assignment or transfer. If an
assignment or subletting is approved, tenant shall be entitled to deduct from
any excess proceeds described in this subparagraph 14.B. its reasonable
expenses, including attorneys fees and leasing commissions, incurred in
connection with such assignment of subletting.
15. INSURANCE.
A. Landlord agrees to maintain standard fire and extended coverage
insurance covering the building or buildings of which the Premises are a part in
an amount not less than 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 as such term is defined in the Replacement Cost
Endorsement to be attached thereto, insuring against the perils of Fire,
Lightning and Extended Coverage, such coverage and endorsements to be as
defined, provided and limited in the standard bureau forms prescribed by the
insurance regulatory authority for the State in which the Premises are situated
for use by insurance companies admitted in such state for the writing of such
insurance on risks located within such state. Subject to the provisions of this
Paragraph 15, such insurance shall be for the sole benefit of Landlord and under
its sole control.
Notwithstanding the foregoing, the maximum amount Landlord shall pay for
such insurance coverage shall be $.05 per square foot of the Premises for any
one-year period and, if the cost of the insurance coverage exceeds this amount,
the Tenant shall pay to Landlord such excess. Said payments shall be made to
Landlord within thirty (30) days after presentation to Tenant of Landlord's
statement setting forth the amount due. Any payment to be made pursuant to this
subparagraph 15.A. shall be prorated for any portion of the Demised Term which
is not a full premium period under said insurance policy.
B. Tenant shall, throughout the term of this lease, at its cost and
expense, provide and keep in force a comprehensive general public liability
insurance policy in the amount of not less than $1,000,000.00 with respect to
injury or death to any one person, $3,000,000.00 with respect to injury or death
of number of persons and $500,000.00 with respect to fire damage of property.
Tenant shall be solely responsible for keeping insured, to the extent Tenant
elects, its own personal property located on the Premises.
All insurance provided by Tenant as required by this subparagraph 15.B.
shall name, as additional insured, Landlord and any mortgagees or deed to secure
debt holders of the Premises, and be carried by such responsible companies and
in such form satisfactory to Landlord.
Tenant agrees to deliver to Landlord on or before the Commencement Date the
original policy of insurance required by this subparagraph 15.B. or certificate
thereof and evidence of payment of premium. At least thirty (30) days prior to
the expiration of each such policy, Tenant shall deliver to Landlord the new
original policy or certificate for renewal insurance and evidence of payment of
premium.
Tenant shall not violate or knowingly permit to be violated any of the
conditions or provisions of any policy required by this subparagraph 15.B.
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Each insurance policy (including renewal insurance) or certificates thereof
issued by the insurer shall contain an agreement by the insurer that such policy
shall not be cancelled without at least thirty (30) days prior written notice to
Landlord, and in no event shall such policies be cancelled by Tenant without
Landlord's prior written consent.
C. Tenant and Landlord shall cooperate in connection with the
collection of any insurance monies that may be due in the event of loss. Tenant
and Landlord shall execute and deliver such proofs or loss and other instruments
which may be required for the purpose of obtaining the recovery of any such
insurance monies.
D. Any insurance provided for in this Paragraph 15 may be effected by
a policy or policies of blanket insurance; provided, however, that the amount of
the total insurance allocated to the Premises shall be such as to furnish in
protection the equivalent of separate policies in the amount herein required,
and provided further that in all other respects, any such policy or policies
shall comply with the other provisions of this lease. In any such case it shall
not be necessary to deliver the original of any such blanket policy, but rather
a certified duplicate as such policy or certificate thereof.
16. DAMAGE OR DESTRUCTION; SUBROGATION.
A. If the Premises should be damaged or destroyed by fire, tornado or
other casualty, Tenant shall give immediate written notice thereof to Landlord.
B. If 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 fifty (150) 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.
C. If 50% or more of the gross square footage of the building in which
the Premises are located is damaged or destroyed by any peril or casualty,
Landlord shall have the right to terminate this Lease. Subject to the foregoing,
if the Premises should be damaged or destroyed by any peril covered by the
insurance to be provided by Landlord under subparagraph 15.A., but only to the
extent that rebuilding or repairs can in Landlord's estimation be completed
within one hundred fifty (150) days after the date upon which the 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, addition and
other improvements which may have been placed in, on or about the Premises by
Tenant. 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 fifty (150) 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, except as otherwise provided in Paragraph
30.H.
D. Notwithstanding anything herein to the contrary, in the event the
holder of any indebtedness secured by a mortgage or deed to secure debt 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, except as otherwise provided in
Paragraph 30.H.
E. Each of Landlord and Tenant hereby releases the other from any loss
or damage to property caused by fire or any other perils insured through or
under them by way of subrogation or otherwise for 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 party may be
responsible. Each of the Landlord and Tenant agrees that it will request its
insurance carriers to include in its policies a clause or endorsement to the
effect that any such release shall not adversely affect or impair said policies
or prejudice the right of the releasor to recover thereunder.
17. LIABILITY. Landlord shall not be liable to Tenant or Tenant's
employees, agents, invitees, patrons or visitors, or to any other person
whomsoever, for any injury to person or damage to property on the Premises,
resulting from and/or caused in part or whole by, the negligence or misconduct
of Tenant, its employees, agents, invitees, patrons or visitors, or of any other
person entering upon the Premises, or caused by the buildings and improvements
located on the Premises becoming out of repair, use, generation, storage or
disposal of toxic or hazardous materials or substances on the premises, or
caused by leakage of gas, oil, water or steam or by electricity emanating from
the Premises, and Tenant hereby covenants and agrees that it will at all times
indemnify and hold safe and harmless the Landlord (including without limitation,
the trustee and
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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 to the extent
caused by 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.
18. CONDEMNATION.
A. If 50% or more of the gross square footage of the building in which
the Premises are located should be taken for public or quasi-public use under
governmental law, ordinance or regulation by right of eminent domain, or by
private purchase in lieu thereof, Landlord shall have the right to terminate
this lease and the rent shall be abated effective on the date of Landlord's
election to so terminate. Additionally, 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 purpose for which that are being
used, this lease shall terminate and the rent shall be abated during the
unexpired portion of this lease, effective on the date of the physical taking of
the Premises.
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
in not terminated as provided in subparagraph 18A., 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. In the event of any such taking or private purchase in lieu
thereof, Landlord and Tenant shall each be entitled to receive and retain such
separate awards and/or portion of lump sum awards as may be allocated to their
respective interests in any condemnation proceedings.
19. HOLDING OVER. Tenant shall, at the termination of this lease by lapse
of time or otherwise, deliver immediate possession of the Premises to Landlord.
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 such hold over,
an amount equal to two hundred percent (200%) of 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 19 shall not be constructed as Landlord's
consent for Tenant to hold over.
20. QUIET ENJOYMENT. 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 and performing its other covenants and agreements herein
set forth, shall peaceably and quietly have, hold and enjoy the Premises for the
term hereof, subject to the terms and provisions of this lease.
21. EVENTS OF DEFAULT. The following events shall each be deemed to be an
event of default by Tenant under this lease:
A. Tenant shall fail to pay any installment of the rent herein
required when due, or any payment with respect to taxes hereunder when due, or
any other payment or reimbursement to Landlord required herein when due, and
such failure shall continue for a period of five (5) days after written notice
of non-payment.
B. Tenant shall become insolvent, or shall make a transfer to defraud
creditors, or shall make an assignment for the benefit of creditors.
C. Tenant shall file a petition under any section or chapter of the
National Bankruptcy Act, as amended, or under any similar law or statute of the
United States or any State thereof, or Tenant shall be adjudged bankrupt or
insolvent in proceedings filed against Tenant thereunder.
D. A receiver or trustee shall be appointed for all or substantially
all of the assets of Tenant.
E. Tenant shall desert or abandon any substantial portion of the
Premises.
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F. Tenant shall fail to comply with any term, provision or covenant of
this lease (other than as set forth in clauses A. through E. in this Paragraph
21), and shall not cure such failure within thirty (30) days after written
notice thereof to Tenant.
22. REMEDIES. Upon the occurrence of any of the events of default described
in Paragraph 21 hereof, Landlord shall have the option to pursue any one or more
of the following remedies without notice or demand whatsoever:
A. 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 the Premises or any part
thereof, by force if necessary (to the extent permitted by law), without being
liable for prosecution or any claim of damages therefor, and Tenant agrees to
pay to Landlord on demand the amount of all loss and damages which Landlord may
suffer by reason of such termination, whether through inability to relet the
Premises on satisfactory terms or otherwise.
B. Enter upon and take possession of the Premises and expel or remove
Tenant and any other person who may be occupying the Premises or any part
thereof, by force if necessary (to the extent permitted by law), without being
liable for prosecution or any claim for damages thereof, and relet the Premises
and receive the rent therefor; and Tenant agrees to pay to the Landlord on
demand any deficiency that may arise by reason of such reletting. In the event
Landlord is successful in reletting the Premises at a rental in excess of that
agreed to be paid by Tenant pursuant to the terms of this lease, Landlord and
Tenant each mutually agree that Tenant shall not be entitled, under any
circumstances, to such excess rental, and Tenant does hereby specifically waive
any claim to such excess rental.
C. Enter upon the Premises, by force if necessary (to the extent
permitted by law), without being liable for prosecution or any claim for damages
therefor, 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 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.
D. Landlord shall have all other rights and remedies provided by law
or in equity.
In the event Tenant fails to pay any installment of rent hereunder within
ten (10) days after such installment is due, to help defray the additional cost
to Landlord for processing such late payments, Tenant shall pay to Landlord a
late charge in an amount equal to three percent (3%) of such installment; and
the failure to pay such amount within ten (10) days shall be an event of default
hereunder. The provision for such late charge shall be in addition to all
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.
Pursuit of any of the foregoing remedies shall not preclude pursuit of any
of the other remedies herein provided or any other remedies provided by law, nor
shall pursuit of any remedy herein provided constitute a forfeiture or waiver of
any rent due to Landlord hereunder or any damages accruing to Landlord by reason
of the violation of any of the terms, provisions and covenants herein contained.
No act or thing done by the Landlord or its agents during the Demised Term shall
be deemed a termination of this lease or an acceptance of the surrender of the
Premises, and no agreement to terminate this lease or accept a surrender of the
Premises shall be valid unless in writing signed by Landlord. No waiver by
Landlord of any violation or breach of any of the terms, provisions and
covenants herein contained shall be deemed or construed to constitute a waiver
of any other violation or breach of any of the terms, provisions and covenants
herein contained. Landlord's acceptance of the payment of rental or other
payments hereunder after the occurrence of an event of default shall not be
construed as a waiver of such default, unless Landlord so notifies Tenant in
writing. Forbearance by Landlord to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to constitute
a waiver of such default or of Landlord's right to enforce any such remedies
with respect to such default or any subsequent default. If, on account of any
breach or default by Tenant in Tenant's obligations under the terms and
conditions of this lease, it shall become necessary or appropriate for Landlord
to employ or consult with an attorney concerning or to enforce or defend any of
Landlord's rights or remedies hereunder, Tenant agrees to pay any reasonable
attorney's fees so incurred.
Tenant agrees to indemnify and hold Landlord harmless from any and all
losses, costs, expenses (including, without limitation, attorney's fees),
liabilities, causes of action, suits, claims, and damages arising out of, or in
connection with any violation or breach of, or failure of Tenant to fully and
completely observe, satisfy, perform and comply with, the terms and conditions
of this lease.
23. [deleted]
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24. MORTGAGES AND GROUND LEASES.
A. Tenant hereby agrees and accepts that this lease is and shall be
subject and subordinate to any mortgage(s) and/or deeds to secure debt
(collectively referred to as the "Mortgage") now or any time hereafter
constituting a lien or charge upon the Premises or the improvements situated
thereon; provided, however, that if the holder of any such Mortgage elects to
have Tenant's interest in this lease superior to any such instrument, then by
notice to Tenant from such holder, this lease shall be deemed superior to such
lien, whether this lease was executed before or after said Mortgage. Tenant
shall at any time hereafter on demand execute any instruments, releases or other
documents which may be required by the holder of the Mortgage for the purpose of
subjecting and subordinating this lease to the lien of any such Mortgage.
If, in connection with obtaining financing or refinancing for the Premises,
or a sale of the Premises, any lender or purchaser shall request reasonable
modifications in this lease as a condition to such financing or purchase, Tenant
will not unreasonably withhold or delay or defer its consent thereto, provided
that such modifications do not increase the obligations of Tenant hereunder or
materially and adversely affect Tenant's rights hereunder.
B. Tenant hereby further agrees and accepts that this lease is and
shall be subject and subordinate to any ground lease now or at any time
hereafter affecting the Premises. Tenant shall at any time hereafter on demand
execute any instruments, releases or other documents which may be required by
the ground lessor of any ground lease affecting the Premises for the purpose of
subjecting and subordinating this lease to any such ground lease.
In the event any ground lessor of a ground lease affecting the Premises
requests reasonable modifications in this lease, Tenant will not unreasonably
withhold or delay or defer its consent thereto, provided that such modifications
do not increase the obligations of Tenant hereunder or materially and adversely
affect Tenant's rights hereunder.
25. MECHANIC'S LIENS. Tenant shall have no authority, express or implied,
to create or place any lien or encumbrance of any kind or nature whatever upon
or in any matter to bind, the interest of Landlord in the Premises or to charge
the rental payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may furnish materials or perform labor for any
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 the lease.
26. NOTICES. Any notice, demands, payments or other communications required
or permitted to be delivered under this lease shall be given by personal
delivery or by deposit in the United States Mail, 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 (After Commencement):
McDonald Windward Partners II, L.L.C. Technology Service Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
Bldg 300, Suite 650 Alpharetta, GA 30202
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: President
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
TENANT (Prior to Commencement):
Technology Service Group, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
With copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
All notices shall be deemed given upon personal delivery or deposit with a
courier service that provides next-business-day service, except as otherwise
specifically provided in this lease and except as to the payments of rent to
Landlord which shall be effective upon receipt by Landlord.
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
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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 within the terms "Landlord" and "Tenant", respectively, shall be bound
by notices given accordance with the provisions of this Paragraph 26 to the same
effect as if each had received such notice.
27. RESTRICTIVE COVENANTS. Tenant acknowledges that this lease shall be
subject and subordinate at all times to the Declaration of Easements, recorded,
or to be recorded, in Forsyth County, Georgia Records, as the same may be
amended from time to time (hereinafter referred to as the "Declaration"), which
affects the Premises. Tenant agrees to comply with all of the terms and
provisions of the Declaration, and not suffer or cause any act by Tenant or any
of its employees, agents or invitees, which would violate the Declaration;
provided, however, that Landlord warrants that Tenant's permitted use of the
Premises does not violate the Declaration.
28. REAL ESTATE BROKER. Tenant represents and warrants that the Tenant has
dealt with no broker, agent or finder in connection with this lease other than
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Company, which broker is acting on behalf of Tenant and shall be
paid a commission by Landlord pursuant to a separate agreement, and insofar as
the Tenant knows, no other brokers, agent or finder negotiated this lease or is
entitled to any commission or fee in connection herewith. Tenant agrees to
indemnify, defend and hold Landlord free and harmless from and against all
claims for broker's or agent's commissions or finder's fees by any person
claiming to have been retained by Tenant in connection with this transaction, or
any other losses, costs, expenses (including, without limitation, attorney's
fees), liabilities, damages, causes of actions or suits arising out of the
alleged employment or use of a broker, agent or finder by Tenant.
29. LIMITATIONS AND LANDLORD'S LIABILITY. Any liability for damages or
breach or nonperformance by Landlord, or arising out of the subject matter of
this lease or the relationship created hereby, shall be limited to, and
collectible only out of, Landlord's interest in the Premises and no personal
liability is assumed by, or shall at any time be asserted against, Landlord or
its affiliated corporations, its and their partners, venturers, directors,
shareholders, officers, agents, servants and employees, or any of its or their
successors or assigns; all such liability, if any, being expressly waived and
released by Tenant. If Landlord, in violation of the terms of this lease or the
provisions of law, withholds, denies or delays any consent which Tenant is
required to obtain hereunder, Tenant may seek specific performance but shall not
be entitled to damages therefor. Landlord's review, supervision, commenting on
or approval of any aspect of work to be done by or for Tenant is solely for
Landlord's protection and, except as expressly provided, creates no warranties
or duties to Tenant or to third parties.
30. 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. 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.
C. 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. Time is of the essence of this lease.
F. Tenant agrees from time to time within ten (10) days after request
of Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate stating whether 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 reasonably 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.
G. This lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
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H. All obligations of Tenant and Landlord hereunder not fully
performed as of the expiration or earlier termination of the Demised Term shall
survive the expiration or earlier termination of the Demised Term, 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 Demised Term, and prior to Tenant
vacating the Premises, Tenant shall pay to Landlord any amount reasonably
estimated by Landlord 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, as estimated by Landlord, 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 therefor upon demand by Landlord, or being liable for
any additional costs therefor 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 Paragraph 30.H.
I. If any clause, sentence, paragraph 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, sentence, paragraph or provision of this lease that is illegal, invalid
or unenforceable, there be added as a part of this lease contract a clause,
sentence, paragraph 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.
J. Provided Landlord is the prevailing party, Tenant agrees to pay any
and all attorneys' fees and expenses Landlord incurs in enforcing any of the
obligations of Tenant under this lease. Provided Tenant is the prevailing party,
Landlord agrees to pay any and all attorneys' fees and expenses Tenant incurs in
enforcing any of the obligations of Landlord under this lease.
K. This lease shall create the relationship of Landlord and tenant
between Landlord and Tenant; no estate shall pass out of Landlord; Tenant has
only a usufruct, not subject to levy and sale.
L. Neither this lease, nor any memorandum, affidavit or other writing
with respect thereto, shall be recorded by Tenant or by anyone acting through,
under or on behalf of Tenant, and the recording thereof in violation of this
provision shall make this lease voidable at Landlord's election.
M. 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.
N. 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.
O. This lease may be executed in counterparts, each of which shall be
deemed an original, and all of which shall constitute one and the same lease
agreement.
31. MONUMENT SIGNAGE. Tenant is authorized to erect, at its sole cost and
expense, a monument sign identifying the Premises; provided, however, that such
a sign must be: (a) compatible with the architectural standards of Windward
Ridge, (b) in compliance with Windward sign standards, and (c) approved in
advance by Landlord. Tenant shall submit plans to Landlord specifying the
design, materials, and location of such a sign, and upon Landlord's and
Windward's written approval of the plans, Tenant shall erect the sign in
accordance with the approved plans.
32. RENEWAL OPTION. Tenant is hereby granted the option to renew the term
of this lease for a period of five (5) years (the "Renewal Term") in addition to
the initial Demised Term, provided that Tenant shall not be in default hereunder
at the time of exercise of such option or at the expiration of the Demised Term.
Such option shall be exercised by giving Landlord written notice thereof not
later than one hundred eighty (180) days prior to the date on which the term
would otherwise expire. All of the terms, covenants, conditions, and provisions
hereof, with the exception of this Paragraph 32, shall remain in full force and
effect during the Renewal Term; provided, however, that the Base Rent payable
under Paragraph 3 hereof shall increase during the Renewal Term by 115% of the
Base Rent in effect at the expiration of the initial Demised Term.
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33. LANDLORD'S IMPROVEMENTS. Landlord's responsibility for the cost of
constructing the improvements to the Premises described on Exhibit "B" shall not
exceed the sum of $300,250.00, and Landlord's obligation for space planning and
construction drawings for Tenant shall not exceed $7,500.00. Any costs in excess
of these amounts, in addition to the cost of work outside of the scope of the
plans and specifications described on Exhibit "B", shall be the sole
responsibility of Tenant. Any modifications to the plans and specifications on
Exhibit "B" (last revised November 6, 1996) must be approved by Landlord, which
approval shall not be unreasonably withheld.
EXECUTED BY LANDLORD, this 12th day of November, 1996.
McDONALD WINDWARD PARTNERS II, L.L.C.,
a Georgia limited liability company
By:_______________________________________
Title:____________________________________
EXECUTED BY TENANT, this 12th day of November, 1996.
TECHNOLOGY SERVICE GROUP, INC.,
a Delaware corporation
By:________________________________________
Title:_____________________________________
By:________________________________________
Title:_____________________________________
108