STATE OF GEORGIA,
COUNTY OF ▇▇▇▇▇▇▇
INDENTURE OF LEASE
THIS INDENTURE OF LEASE (this "Lease"), made and executed in
duplicate as of the 12 day of October, 1993, by and between
DEVELOPMENT AUTHORITY OF ▇▇▇▇▇▇▇ COUNTY
a body politic created by statutory authority contained in
provisions of an Act of the Georgia General Assembly (Ga. Laws,
1969, p.137, et.seq., as amended) with its office in ▇▇▇▇▇▇▇
County, Georgia ("Lessor"), and
THIMBLE SQUARE, INC.
a Georgia corporation with its registered office in ▇▇▇▇▇ County,
Georgia, and a place of business in ▇▇▇▇▇▇▇ County, Georgia
("Lessee").
WITNESSETH :
WHEREAS, Lessor owns the Premises ( as hereinafter defined),
and desires to lease same to Lessee; and
WHEREAS, Lessee desires to lease the Premises from Lessor with
the right to purchase upon the terms and conditions set forth
herein;
NOW, THEREFORE, for and in consideration of the rents stated
in Article III hereof and of the covenants and agreements
hereinafter mentioned to be kept and performed by Lessee, Lessor
does by these presents lease and let unto Lessee, and Lessee does
hereby hire and take from Lessor, that certain improved tract or
parcel of land in the ▇▇▇▇▇▇▇ County Industrial Park described in
Exhibit A attached hereto and made a part hereof, and hereinafter
referred to as the "Premises".
It is hereby mutually covenanted and agreed that; (a) delivery
of the Premises is being made by Lessor to Lessee in its present
condition "as is" and "where is" and that Landlord has made no
representation with respect to the physical condition thereof
except that Lessor will warrant the heating and air conditioning
system to be in good operating condition for a period of thirty
(30) days after the Commencement Date; and (b) this Lease is made
upon the following agreements, conditions, covenants and terms:
ARTICLE I. HEADINGS.
Section 1.01. The various headings and numbers herein, and
the grouping of the provisions of this Lease into separate Articles
and Paragraphs, are for the purpose of convenience only and in no
way define, limit, construe, or describe the scope or intent of
such Sections or Articles nor in any way affect this Lease.
ARTICLE II. TERMS OF THIS LEASE
Section 2.01. The term of this Lease shall commence on the
first day of October, 1993, (the "Commencement Date"), and shall
continue for a term of eighty-four (84) months (the "Term"),
commencing on the Commencement Date and expiring the last day of
September, 2000 (the "Termination Date"), unless sooner terminated
in accordance with this Lease. For the purpose of this Lease, the
term "Lease Year" shall mean any twelve (12) month period beginning
on the first day of the month next following the Commencement Date
unless the Term commences on the first day of a month in which
event the twelve (12) month period shall commence on the
Commencement Date.
ARTICLE III. RENT.
Section 3.01. Lessee covenants and agrees to pay without
demand, set-off or abatement, except as specifically otherwise set
forth herein, and Lessor agrees to accept as "Monthly Rent" (herein
so called) for the Premises during the Term the following sums:
a. $2,000.00 per month for the first and second Lease Years
(October, 1993 through September, 1995);
b. $2,500.00 per month for the third Lease Year (October, 1995
through September, 1996); and
c. $3,000.00 per month for the balance of the Lease Term.
The aforesaid lease payments ("Monthly Rent") shall be paid on
the first day of each calendar month in advance. In the event the
Commencement Date is other than the first day of a month, rent for
the initial month shall be prorated according to the number of days
from the Commencement Date through the end of the month.
All rental payments hereunder shall be made to Lessor at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place or to
such other person as Lessor may designate in writing from time to
time.
Section 3.02. All payments other than Monthly Rent required
to be made by Lessee under any of the terms or conditions of this
Lease shall be collectible as "Additional Rent" hereunder whether
or not the provision requiring such payment specifically so states
(Monthly Rent and Additional Rent are collectively referred to
herein as "Rent"). Any payment of Rent not made by Lessee on the
date or time herein specified for such payment shall bear interest
at the lesser of eighteen percent (18%) per annum (the "Lease
Interest Rate"), from such date or time until such payment shall be
made by Lessee.
Section 3.03. The parties intend that this Lease shall
provide for a net return to Lessor in the amount of the rentals set
forth hereinabove. The parties, therefore, agree that all costs,
expenses or obligations related to Lessee's use or occupancy of the
Premises, shall be paid and discharged by Lessee and shall be
collectible as Additional Rent for all purposes of this Lease.
This section contemplates that Lessee shall be responsible for
taxes, utilities, insurance and routine maintenance attributable to
Lessee's use of the Premises.
ARTICLE IV. ADDITIONS, CHANGES AND ALTERATIONS; EQUIPMENT.
Section 4.01. At any time, and from time to time, with
Lessor's prior written approval, which will not be unreasonably
withheld, Lessee, at its sole cost and expense, may make additions
to and structural changes and alterations in and upon any or all of
the improvements now or hereafter located on the Premises and may
make additional improvements on the Premises provided that:
a. Such additions, changes, alterations or improvements, when
completed, shall not materially impair the strength or value of the
existing improvements located on the Premises and shall be in
conformity and compliance with all applicable laws, building
ordinances and regulations;
b. Whenever the contemplated cost of such structural
additions, changes, alterations, or improvements exceeds $5,000.00,
Lessee shall first deliver to Lessor detailed plans and
specifications therefor and Lessee shall ▇▇▇▇▇ ▇▇▇▇▇▇ a period of
thirty (30) days during which Lessor may approve such plans and
specifications or indicate the reasons for its disapproval of same.
Provided that the work to be constructed is in accordance with
Subsection 4.01 (a) hereof, Lessor shall approve such plans and
specifications. If Lessor has not acted within thirty (30) days of
the date of delivery of such plans and specifications, it will be
deemed to have approved the same. Nothing in the Lease shall imply
or be deemed to be a consent or agreement by Lessor to subject
Lessor's estate or the Premises to liability under any mechanics'
or other lien law. All such additions, changes, alterations or
improvements shall be and remain part of the realty and the
property of the Lessor and subject to this Lease.
Section 4.02.
a. At any time, and from time to time, Lessee may, at its sole
cost and expense, install, assemble or place upon the Premises any
items of Equipment (as defined in Subsection 4.02 (b)), which
Equipment shall be and remain the property of Lessee or other owner
thereof and shall not become part of the Premises.
b. As used herein, the term "Equipment" shall mean all
wquipment, appliances, machinery, signs, furniture and trade
fixtures now or hereafter installed or placed on the Premises,
whether or not physically attached thereto, and used or useable in
the operation and maintenance of the business of Lessee or any
Permitted Subtenant (as defined in Article XII) or any other person
on the Premises. Equipment shall not include heating, ventilating
and air-conditioning plants and systems, electrical (except bus
duct installed by Lessee), sprinkler and plumbing fixtures and
systems and other like equipment and fixtures which constitute an
integral part of the building constructed on the Premises.
c. Lessee may remove the Equipment at any time at or prior to
the Expiration Date or earlier termination of this Lease, provided
that Lessee shall repair any and all damage to the Premises
resulting from such removal. For the purposes of this Subsection
4.02(c), the term "Lessee" shall be deemed to include subsidiaries
of Lessee and any other Permitted Subtenant.
ARTICLE V. RECONSTRUCTION OF DAMAGED, DESTROYED OR REMOVED
IMPROVEMENTS; REPAIR AND MAINTENANCE.
Section 5.01. In the event that the Premises are damaged or
destroyed by fire or other casualty, Lessee shall have the right
and option to either (i) repair, replace or reconstruct the
premises utilizing insurance proceeds, or (ii) terminate this
Lease, with Lessor and/or Lessor's mortgagee to receive all
building insurance proceeds and the parties having no further
rights or obligations with respect to the other. Lessee shall be
entitled to the proceeds of the insurance on its contents, business
interruption and other insurance it may obtain in connection with
the business conducted upon the Premises. If Lessee elects to
continue, the repair, replacement or reconstruction shall be
accomplished within such time as may be reasonable under the
circumstances after allowing for delays caused by strikes,
lockouts, acts of God, fire, unavailability of materials or labor,
or any other cause or casualty beyond the reasonable control of
Lessee. The design and specifications of such repair, replacement
or reconstruction shall be as determined by Lessee after obtaining
Lessor's prior consent, which shall not be unreasonably withheld;
but such work shall restore the Premises to not less than their
value immediately prior to the damage, destruction, demolition or
removal.
Section 5.02. Lessee, at its sole cost and expense, will keep
and maintain the Premises in good repair and in safe and sanitary
condition and will, at its sole expense, make all necessary non-
structural repairs, replacements and renewals, which shall be
substantially equal in quality and class to the original work.
Lessee will conform with and do all things necessary to comply with
every valid law, regulation, order and requirement of any
governmental authority relating to the Premises and will hold and
save Lessor free and harmless of all losses, costs, expenses,
claims or liabilities for the breach thereof, or failure to comply
therewith and for the breach of or failure to comply with any valid
law, regulation, order and requirement of any governmental
authority relating to the conduct of Lessee's business in the
Premises.
ARTICLE VI. USE OF THE PREMISES.
Section 6.01. The Premises shall be used only for lawful,
proper and legitimate purposes, and Lessee shall not use, nor
suffer nor permit any person to use, the same or any part thereof
for any purpose or in violation of the laws of the United States or
of the State in which the Premises are located, or of the
ordinances of any political subdivision of the State, or any
covenant, restriction or condition affecting the Premises, nor for
any immoral or unlawful purpose whatsoever.
Section 6.02. Lessor shall not be liable for any encroachment
upon any property adjacent to the Premises by any future building
or other structure intended to be erected upon the Premises by
Lessee. Lessee agrees to indemnify and save harmless Lessor from
and against any and all liabilities, penalties, damages, expenses
and judgments on account of the location of any such building or
other structure on or partly on such adjacent property.
ARTICLE VII. CONSTRUCTION LIENS.
Section 7.01. Lessee will keep the Premises free and clear of
mechanics', laborers', or materialmen's liens, and other liens of
similar nature, which may arise in connection with any work
performed on the Premises by or at the direction or sufferance of
Lessee; provided, however, that Lessee shall have the right to
contest the validity or the amount of any such lien or claimed
lien, if Lessee shall, within ten (10) days after Lessee is
informed that the lien is filed against the Premises, give to
Lessor or any mortgagee of the Premises ( a "Mortgagee"), such
reasonable security as may be demanded by Lessor or a Mortgagee to
insure payment of such lien and prevent any sale, foreclosure or
forfeiture of the Premises by reason of such nonpayment. On final
determination of the lien or claimed lien, Lessee shall immediately
pay any judgement rendered, with all proper costs and charges, and
shall have the lien released or judgment satisfied at Lessee's own
expense. Should any such lien be placed on the Premises and the
same ripen into a judgment which has become final, Lessor, at its
option, may pay any such final judgment and clear the Premises
therefrom, and any monies so paid out by Lessor on account of any
such judgment shall be repaid by Lessee to Lessor at the next
ensuing rent day and shall draw interest at the Lease Interest Rate
from time of payment by Lessor until repaid by Lessee.
Section 7.02. In the event any lien is filed against the
Premises or any such action is commenced affecting the title
hereto, as between Lessor and Lessee, the notified party shall give
the other prompt written notice thereof.
Section 7.03. Nothing in this Lease shall authorize Lessee
to, and Lessee shall not do any act which will in any way encumber
the title of Lessor in and to the Premises, nor shall the interest
or estate of Lessor in the Premises be in any way subject to any
claim whatsoever by virtue of any act or omission of Lessee. Any
claim to a lien upon the Premises arising from any act or omission
of Lessee shall be valid only against Lessee and shall in all
respects be subordinate to the title and rights of Lessor and any
person claiming by, through or under Lessor in and to the Premises.
Lessee shall remove any lien or encumbrance on its interest in the
Premises within ten (10) days after it has received notice thereof;
provided, however, that Lessee may in good faith contest any such
item if it posts a bond or other adequate security with Lessor.
ARTICLE VIII. TAXES, ASSESSMENTS, AND UTILITY CHARGES.
Section 8.01. Lessor and Lessee agree that Lessor is under no
obligation to provide and/or pay for any services, including any
utilities, and taxes, including personal property taxes,
assessments and levies, whether general or special, ordinary or
extraordinary, of every nature or kind whatsoever which may be
taxed, charged, assessed, levied or imposed at any time or from
time to time during the term of this Lease (including taxes for the
year in which such term begins) by the State, any political
subdivision thereof or any governmental or quasi-governmental body
having jurisdiction thereover, upon or against: (i) the Premises or
the occupancy, use or possession thereof; or (ii) any estate,
right, title or interest of Lessor and of Lessee or of either of
them in or to the Premises. It is agreed, however, that (x) taxes
for the years in which the commencement and the termination of this
Lease occur shall be prorated, and Lessee shall be required to pay
as its prorated share only that portion of the taxes levied for the
period of the taxable year for which this Lease shall have been in
effect, and (y) Lessee shall not be obligated to pay any
installment of any special assessment which may be levied, assessed
or confirmed during the Term, but which does not fall due and is
not required to be paid until after its termination, unless the
special assessment is attributable to Lessee's use, occupancy or
possession of the Premises. All amounts payable by Lessee but not
paid when due may be paid by Lessor and collectible by Lessor as
though the same were Additional Rent hereunder.
Section 8.02. Nothing contained herein shall be construed to
require Lessee to pay any transfer, estate, inheritance,
succession, or gift tax or taxes imposed in respect of any devise
or gift of any interest of Lessor or it successors or assigns in
the Premises, nor nay income tax imposed in respect of Lessor's
income from the Premises.
Section 8.03. Except as permitted by Section 8.04 the taxes,
assessments and other impositions to be paid by Lessee in this
Article VIII shall be paid before any delinquency can occur therein
or in any part or installment thereof, and certificates of payment
shall be delivered to Lessor upon request.
Section 8.04. Both Lessor and Lessee shall have the right to
contest the legality or validity of any of the taxes, assessments
or other impositions herein provided to be paid by Lessee, but no
such contest shall be carried on or maintained by Lessee after the
time limit for the payment of any such taxes, assessments or other
impositions unless Lessee as its option, (i) shall pay the amount
involved under protest; or (ii) shall procure and maintain a stay
of all proceedings to enforce any collection of such taxes,
assessments or other impositions, together with all penalties,
interest, costs and expenses, by a deposit of a sufficient sum of
money or by such undertaking as may be required or permitted by law
to accomplish such stay; or (iii) shall deposit with Lessor, or a
Mortgagee, as security for the performance by Lessee of its
obligations hereunder with respect to such taxes, assessments or
other impositions, such reasonable security which will not be less
than the amount of the taxes, assessments or other impositions,
then due as may be demanded by Lessor or a Mortgagee to ensure
payment of such contested taxes, assessments or other impositions
and all penalties, interest costs and expenses which may accrue
during the period of the contest. In the event any such contest id
made by Lessee, then, within thirty (30) days after final
determination thereof, Lessee shall fully pay and discharge the
amount determined in or by any such contest, together with all
penalties, fines, interest, costs or expenses that may have accrued
thereon or that may have result from any such action by Lessee,
whereupon Lessor shall return to Lessee all amounts, if any,
deposited by Lessee in accordance with the provisions hereof.
Section 8.05. Lessor will promptly deliver to Lessee any and
all tax notices or assessments which it may receive relating to the
Premises.
ARTICLE IX. PUBLIC LIABILITY AND PROPERTY DAMAGE.
Section 9.01.
a. Lessee does hereby release Lessor and shall at all times
indemnify and defend Lessor and save it harmless from and against
all claims, suits, actions, damages, judgments, liabilities, fines,
penalties, costs and expenses for loss of life, personal injury or
damage to property arising from or out of occurrences during the
Term within or upon the Premises occasioned wholly or in part by
any act or omission of Lessee or breach of this Lease by Lessee or
by any person or entity under its control. If Lessor shall be made
a party to any litigation commenced by or against Lessee or by any
third party, which litigation is related solely to Lessee's use or
occupancy of the Premises and involves Lessor only as owner of the
Premises, Lessee shall indemnify and hold Lessor in connection with
such litigation. Provided, however, that this indemnify is not
intended and shall not extend to any action filed by Lessee against
Lessor as a result of any claimed breach of this Lease.
b. Lessee also hereby releases Lessor from any and all
liability arising from (i) the operation, conduct or management of
or from any work or thing whatsoever done in, on or about the
Premises or any building, structure, equipment (including, without
limitation, plumbing, heating or air-conditioning equipment, water
pipes and electrical wiring) or improvement now or hereafter
erected or placed on the Premises, excepting Lessor's thirty (30)
day heating and air conditioning system warranty set forth at the
beginning of this Lease.
Section 9.02. Lessee will keep in effect at its sole cost and
expense and with financially responsible insurance companies
qualified to do business in the state in which the Premises is
located and acceptable to Lessor (an "Insurer"), a comprehensive
general liability policy either directly or indirectly covering the
Premises and providing coverage with minimum limits of liability
not less than $500,000.00 for bodily injury to one person,
$1,000,000.00 for bodily injury to any group of persons as a result
of one accident and $1,000,000.00 for property damage. Such policy
shall name Lessor and a Mortgagee, if any, as additional insured
and certificates that such insurance is in force shall be delivered
to Lessor; such certificate containing an agreement by the Insurer
that such policy shall not be cancelled or modified (as it applies
to Lessor and a Mortgagee) without thirty (30) days' prior written
notice to Lessor and a Mortgagee by registered mail, return policy
receipt requested, and that no act or omission by Lessee shall
invalidate such policy as it applies to Lessor or Mortgagee.
Section 9.03. Lessee shall bring or keep property upon the
Premises solely at its own risk, and Lessor shall not be liable for
any damages thereto or any theft thereof. Lessee shall maintain
fire and extended coverage insurance, which may include self-
insurance, covering such personal property in such amounts and
against such risks as is customarily maintained by similar
businesses, and provide Lessor with evidence of such insurance
coverage.
ARTICLE X. FIRE INSURANCE.
Section 10.01. Lessee, at its sole cost and expense, will
keep the buildings and the improvements now or hereafter located on
the Premises insured against fire (with extended coverage) with an
Insurer in an amount equal to not less than their full fair
insurable value, exclusive of foundations, excavations and
pavement. Such insurance shall be so issued as to cover the
several interests of Lessor, a Mortgagee, and Lessee, and shall
provide that in case of loss or damage the proceeds thereof shall
be payable to Lessor, Mortgagee, and Lessee, as their interests may
appear. Such insurance may also provide for "rents coverage"
insurance.
Section 10.02. If after any loss insured against pursuant to
Section 10.01, Lessor shall, pursuant to Lessee's options set forth
in Section 5.01, hereof, either (i) proceed with repair or
rebuilding the Premises, or (ii) terminate this Lease.
Section 10.03. Lessee shall deliver to Lessor certificates
evidencing that all insurance which Lessee is required to provide
and maintain in effect hereunder is in force. Should Lessee fail
to provide, maintain or pay for any of the insurance hereinbefore
provided for, Lessor at its option may procure such insurance. Any
sums paid out by Lessor for any such insurance shall be repaid by
Lessee to Lessor on the first day of the calendar month next
following payment thereof by Lessor, together with interest thereon
at the Lease Interest Rate from the date of payment by Lessor until
repaid by Lessee.
Section 10.04. Lessor, Lessee and the owner of the Premises
shall be named insureds, as their interests may appear, in any
insurance policy issued pursuant to Articles IX and X.
ARTICLE XI. CONDEMNATION.
Section 11.01. In the event that the Premises, or any part
thereof, shall be taken in condemnation proceedings or by exercise
of any right of eminent domain or by agreement between Lessor,
Lessee and those authorized to exercise such right (any such
"Partial Taking" [herein so called] or "Full Taking" [herein so
called]) being hereinafter generically referred to as a "Taking"),
Lessor, Lessee and any person or entity having an interest in the
award or awards shall have the right to participate in any such
condemnation proceedings or agreement for the purpose of protecting
their interests hereunder. Each party so participating shall pay
its own expenses therein.
Section 11.02. If at any time during the Term there shall be
a Taking of the whole or substantially all of the Premises, this
Lease shall terminate and expire on the date of such Taking and
Monthly Rent and Additional Rent shall be apportioned and paid to
the date of such Taking. For the purpose of this Article XI,
"substantially all of the Premises" shall be deemed to have been
taken if Lessee and Lessor agree, or failing such agreement, it is
determined by arbitration as provided in Section 11.05, that the
untaken part of the Premises is insufficient for the economic and
feasible operation thereof by Lessee.
Section 11.03. If this Lease shall have terminated as a
result of such Taking, the proceeds from the real estate award
("the Award"), shall be applied for the following purposes in the
following order:
a. First, to pay the unpaid balance of any mortgages affecting
the Premises at the time of taking; and
b. Second, any balance of the Award remaining after payment of
the amount set forth in Subsection 11.03(a) shall be paid to Lessor
as owner of the fee, and Lessee for its leasehold interest, as the
parties or a court may determine.
Lessee shall be entitled to a separate award for removal and
dislocation expenses as granted to tenants of real estate under the
Eminent Domain Laws of the State in which the Premises is located.
Section 11.04. If this Lease shall not have been terminated
pursuant to Section 11.02, after any such Taking, this Lease shall
continue in full force and effect as to the portion of the Premises
not taken and otherwise remain unaffected except:
a. The Monthly Rent shall be reduced by an amount which bears
the same proportion to the Monthly Rent immediately prior to the
Partial Taking as the amount of the Award paid to Lessor or a
Mortgagee and not applied to the restoration of the improvements
located on the Premises pursuant to Subsection 11.04(b) shall bear
to the condemnation proceedings or agreement. Until the new
Minimum Rent shall have been determined, Lessee shall continue to
Minimum Monthly Rent as set forth in Section 1.01 of Schedule One
and upon such determination, an appropriate adjustment shall be
made and Lessee shall receive credit for any overpayment.
b. Lessee shall, promptly after such Taking and, at its sole
cost and expense, restore such building or buildings to a complete
architectural unit, in which event Lessee shall be entitled to
reimbursement from Lessor for the costs thereof the Award. Lessee
shall be responsible for obtaining at its sole cost and expense any
replacement or substitute equipment required by it.
c. The Award shall be paid to Lessor and applied first to
restoration as set forth in Subsection 11.04(b) and any balance of
the Award shall be the property of Lessor subject to an obligation
to make a Minimum Annual Rent adjustment as set forth in Subsection
11.04(a).
Section 11.05. In the event of any dispute between Lessor and
Lessee with respect to any issue of fact (other than one determined
by the condemnation court or board or other body authorized to make
the award) arising out of a Taking set forth in this Article XI,
such dispute shall be resolved by arbitration in accordance with
the Georgia Arbitration Special Statutory Proceedings (O.C.G.A.
Sections 9-9-30, et.seq.).
ARTICLE XII. ASSIGNMENTS, TRANSFERS, AND SUBLETTING.
Section 12.01. Any assignment or subletting of Lessee's
rights in this Lease shall require the prior written consent of
Lessor, which will not be unreasonably withheld. No such
subletting or assignment shall relieve Lessee of any of the
obligations under the terms and conditions of this Lease, and
Lessor shall at all times have the right to look to Lessee for the
performance of all of the covenants to be performed on the part of
Lessee.
Section 12.02. This Lease may be assigned or transferred by
Lessor without limitation; provided that (except in the case of
assignments to a Mortgagee) twenty (20) days' prior notice of the
assignment or transfer is given to Lessee; and upon such assignment
or transfer, which shall be subjected to this Lease, and notice to
Lessee thereof, the individuals and corporate entity now comprising
Lessor shall be relieved of any liability hereunder thereafter
accruing; provided, further, that any successor or assignee assumes
all obligations and covenants of Lessor under this Lease and
immediately thereafter is in compliance therewith. In the event of
an assignment of this Lease by Lessor to a Mortgagee, Lessee agrees
upon notice to pay all monthly Rent and Additional Rent directly to
such Mortgagee.
ARTICLE XIII. EXPENSES OF ENFORCEMENT; LESSORS'S BANKRUPTCY;
TERMINATION; SURRENDER OF PREMISES.
Section 13.01.
a. Either party hereto shall pay all reasonable attorneys'
fees and expenses incurred by the other in enforcing any of the
obligations under this Lease.
b. Subject to the notice requirements of this Article XIII, if
Lessee shall default in the observance or performance of any of its
obligations hereunder, Lessor may preform such obligations after
twenty (20) days following notice to Lessor. If Lessor, in
connection therewith or in connection with any default by Lessee in
the covenant to pay Rent hereunder, makes any expenditure or incurs
any obligations for the payment of money, including, but not
limited to, reasonable attorney's fees and costs incurred in
instituting, prosecuting or defending any action or proceeding,
such sums so paid or obligations incurred, together with interest
at the Lease Interest Rate, shall be deemed to be Additional Rent
hereunder and shall be paid by Lessee to Lessor upon demand in
accordance with the provisions of Article III. If the Term shall
have expired or this Lease shall have been terminated at the time
Lessor makes such expenditures or incurs such obligations, such
sums shall be recoverable by Lessor as damages.
Section 13.02.
a. If Lessee defaults under this Lease, and such default shall
continue for ten (10) days following notice thereof from Lessor, in
the payment of Rent due hereunder, or of any other sum required to
be paid by Lessee under this Lease, or under the terms of any other
agreement between the parties, or if default shall be made, and
shall continue for twenty (20) days following notice, in the
performance of any of the other terms, covenants or conditions
which Lessee is required to observe and perform under the Lease or
if the interest of Lessee in this Lease shall be levied upon
execution or other legal process, or if any petition shall be filed
by or against Lessee in a court of bankruptcy, or if Lessee shall
be declared insolvent according to law, or make an assignment, or
if Lessee shall abandon or vacate the Premises during the Term,
then Lessor may, but need not, treat the occurrence of any one or
more of the foregoing events as a breach of this Lease, and
thereupon may, at its options, terminate this Lease, repossess the
Premises in accordance with the provisions hereof, and be entitled
to recover immediately, as damages, the total amount of Rent and
any other charges due and to be paid by Lessee during the balance
of the Term, less the fair rental value of the Premises for said
period, together with any other sum of money owed by Lessee to
Lessor.
b. Lessee or any trustee for Lessee may only assume this Lease
if (i) it cures or provides adequate assurance that Lessee or the
trustee will promptly cure any default hereunder, (ii) it
compensates or provides adequate assurance that Lessee will
promptly compensate Lessor for any actual pecuniary loss to Lessor
resulting from Lessee's default, and (iii) it provides adequate
assurance of future performance under this Lease by Lessee. To the
extent permitted by law, in on event after the assumption of this
Lease by Lessee or any trustee for Lessee shall any then existing
default remain uncured for a period in excess of that permitted by
this Lease. Adequate assurance of future performance of this Lease
shall include, without limitation, adequate assurance (x) of the
source of Rent required to be paid by Lessee hereunder, and (y)
that assumption or permitted assignment of this Lease will not
breach any provision hereunder.
Section 13.04.
a. Upon the expiration or earlier termination of this Lease,
whether by lapse of time, operation of law or pursuant to the
provisions of this Lease, Lessee shall surrender the Premises
(including approved alterations, additions or improvements made
pursuant to Articles IV and V) in good condition and repair,
reasonable wear and tear excepted, remove all of its personal
property from the Premises and repair any damage to the Premises
caused by such removal.
b. If Lessee shall fail or refuse to restore the Premises,
Lessor may do so and recover its cost from Lessee for so doing. If
Lessee shall fail or refuse to comply with Lessee's duty to remove
all personal property from the Premises and the building upon the
expiration or termination of this Lease, the parties hereto agree
and stipulate that Lessor may, at its election (i) treat such
failure or refusal as an offer by Lessee to transfer title to such
personal property to Lessor, in which event the title thereto shall
thereupon pass under this Lease as a ▇▇▇▇ of sale, or (ii) treat
such failure or refusal as conclusive evidence, on which Lessor
shall be entitled to rely absolutely, that Lessee has forever
abandoned such personal property. In either event, Lessor may,
with or without accepting title thereto, keep or remove, store,
destroy, discard or otherwise dispose of all or any part thereof in
any manner that Lessor shall choose without incurring liability to
Lessee or to any other person. In connection with any such
disposition, Lessor shall use reasonable efforts to mitigate its
damages. In no event shall Lessor ever become or be charged with
the duties of a bailee of any personal property of Lessee. The
failure of Lessee to remove any personal property from the Premises
shall forever bar Lessee from bringing any action or asserting any
liability against Lessor with respect to any such property which
Lessee fails to remove.
ARTICLE XIV. OWNERSHIP AND POSSESSION WARRANTY.
Section 14.01. If Lessee shall perform all of its covenants,
agreements and obligations hereunder, Lessor covenants and agrees
that Lessee shall have the peaceful and quiet enjoyment of the
Premises throughout the Term without hindrance on the part of
Lessor.
ARTICLE XV. HOLDING OVER BY LESSEE.
Section 15.01. If Lessee holds over or remains in possession
or occupancy of the Premises or any part thereof after the
expiration of the Primary Term or any extended term (if such option
has been provided for in this Lease and has been properly exercised
by Lessee) or after any sooner termination of this Lease, without
a proper exercise of any extension option or without another
written agreement leasing the Premises being actually made and
entered into by Lessor and Lessee, and only if Rent is paid by
Lessee and accepted by Lessor for or during any period of time
Lessee so holds over or remains in possession or occupancy, such
holding over or continued possession of occupancy shall create only
a tenancy from month to month at a mutually agreeable rental but no
less than the last Minimum Monthly Rent in effect on the last day
of the Term or any extension thereof then in effect and upon all
terms, covenants and conditions, (other than length of the Term and
extension thereof), set forth in this Lease, which may at any time
be terminated by either Lessor or Lessee by giving to the other
thirty (30) days prior notice of intention to terminate the same.
ARTICLE XVI. WAIVERS.
Section 16.01. No waiver by Lessor of any breach by Lessee of
any of its obligations or agreements, or the terms, covenants and
conditions hereunder shall be deemed to be a waiver of any
subsequent breach of the same or any other covenants, agreements or
obligations, nor shall any forbearance by Lessor to seek a remedy
for any breach by Lessee by deemed a waiver by Lessor of its rights
or remedies with respect to such breach.
ARTICLE XVII. TERMINATION.
Section 17.01. At the termination of this Lease or upon
repossession by Lessor for any reason, Lessee and any subtenants
under Lessee, and any and all persons holding or claiming under
Lessee, shall surrender possession of the Premises to Lessor as
provided in Section 13.04 hereof.
Section 17.02. At the termination of this Lease for any
cause, provided Rent and other charges shall have been fully paid,
Lessee and any subtenants under Lessee, and any and all persons
holding or claiming under Lessee, shall have the right to remove
from the Premises all personal property, tools, machinery and trade
fixtures and Equipment installed by Lessee or any person holding
under Lessee at its own expense, irrespective of how any of such
property may be attached to the Premises; provided, however, that
Lessee shall repair to Lessor's satisfaction any and all damage to
the Premises caused by the removal of such property.
ARTICLE XVIII. COVENANTS TO RUN WITH THE LAND.
Section 18.01. All covenants, agreements, and engagements in
this Lease shall be construed as covenants running with the land,
and all rights given to and obligations imposed upon the respective
parties shall be construed as inuring to and binding upon the
successors in interest and assigns of the parties hereto,
respectively.
ARTICLE XIX. SHORT FORM OF THIS LEASE.
Section 19.01. Upon request of either party after the
execution of this Lease, the parties agree to promptly execute,
acknowledge and deliver a Short Form or Memorandum of Lease for
recording purposes if requested by one of the parties, and the
terms hereof shall constitute a part thereof as though recited at
length therein.
ARTICLE XX. NOTICES
Section 20.01. Any notice provided for herein must be
delivered by courier service or mailed by certified or registered
United States mail, postage prepaid, return receipt requested, to
the parties as follows:
If to Lessor: Development Authority of ▇▇▇▇▇▇▇ County
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Chairman
Fax: ▇▇▇-▇▇▇-▇▇▇▇
If to Lessee: Thimble Square, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇/▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇, President
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Each party shall have the right to specify any other address
in the United States by giving to the other party at least fifteen
(15) days prior written notice thereof.
ARTICLE XXI. SUBORDINATION, ATTORNMENT AND NON-DISTURBANCE.
Section 21.01. This Lease and Lessee's leasehold estate shall
be subordinate and subject in all respects to any presently
existing mortgage or mortgages which ar liens against the Premises
and, at Lessor's request, Lessee shall execute and deliver to
Lessor an instrument in recordable form confirming such
subordination; provided that such subordination shall not affect
the respective rights of Lessor, Lessee and any mortgagee under
Article XII hereof; and, provided further, that Lessor will use its
best efforts to secure for Lessee at such time an instrument
executed by all necessary parties in recordable form whereby any
Mortgagee or proposed mortgagee agrees that Lessee shall not be
interfered with or disturbed in its use, possession and enjoyment
of the Premises by the mortgagee, or any person or firm claiming
under the mortgagee, such instrument to be binding upon any
successor of a Mortgagee or any purchaser at judicial sale upon
foreclosure of the mortgage, so long as Lessee is not in default
hereunder.
If at any time during the Term any Mortgagee or proposed
mortgagee shall become owner of the Premises as a result of
foreclosure or otherwise or becomes a "Mortgagee in Possession" of
the Premises, Lessee shall, upon request and upon assumption by
said mortgagee of Lessor's obligations hereunder, attorn to such
mortgagee from time to time upon the then terms and conditions of
this Lease and shall execute instruments in confirmation of such
attornment.
ARTICLE XX11. ESTOPPEL; CERTIFICATE.
Section 22.01. At any time, and from time to time, Lessee
shall execute, acknowledge and deliver to Lessor a statement in
writing in form satisfactory to Lessor certifying that this Lease
is unmodified and in full force and effect (or if there have been
modifications, that the same is in full force and effect as
modified and stating the modifications), and the dates to which
Minimum Monthly Rent and Additional Rent have been paid in advance,
if any, and stating whether or not to the best knowledge of the
signer of such certificate Lessor is in default in performance of
any term, covenant or condition contained in this Lease.
ARTICLE XXIII. ENTRY AND INSPECTION.
Section 23.01. Lessee shall permit Lessor and Lessor's
authorized agents to enter upon the Premises at reasonable time
during Lessee's business hours for the purpose of inspecting the
same and of ascertaining Lessee's compliance with the terms and
conditions of this Lease.
Section 23.02. In entering upon the Premises, Lessor will
observe Lessee's prevailing security arrangements and will make
such entries so as to cause as little inconvenience, annoyance or
disturbance as possible.
ARTICLE XIV. CUMULATIVE REMEDIES; NO WAIVER; ENTIRE AGREEMENT,
NO ORAL CHANGE; GOVERNING LAW; SEVERABILITY; EXHIBITS; SIGNS.
Section 24.01. The specific remedies to which Lessor or
Lessee may resort under the terms of this Lease are cumulative and
are not intended to be exclusive of any other remedies or means of
redress to which they may be lawfully entitled in case of any
breach or threatened breach by either of them of any provision of
this Lease. The failure of either party to insist in any one or
more cases upon the strict performance of any of the covenants of
this Lease, or to exercise any option herein contained, shall no be
construed as a waiver or relinquishment for the future of such
covenant or option. A receipt by Lessor of any installment of Rent
with knowledge of the breach of any covenant hereof shall not be
deemed a waiver of such breach. This Lease and the Schedules and
Exhibits attached to this Lease and made a part hereof set forth
all the covenants, promises, agreements, conditions and
understanding between Lessor and Lessee concerning the Property,
and there are no covenants, promises, agreements, conditions or
understandings, heretofore made, either oral or written, between
them other than as herein set forth. No waiver, change,
modification or discharge by either party hereto of any provision
in this Lease shall be effective unless expressed in writing and
signed by the party to be bound.
Section 24.02. This Lease shall be construed and enforced in
accordance with the laws of the State of Georgia.
Section 24.03. If any provisions of this Lease or the
application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Lease
shall not be affected thereby and each provision of this Lease,
including the invalid or unenforceable provision, shall be valid
and enforceable to the fullest extent permitted by law.
Section 24.04. Any signs which Lessee desires to use on the
Premises must be approved by Lessor, which approval shall not be
unreasonable withheld, and meet all applicable laws, ordinances and
regulations.
ARTICLE XXV. SUCCESSORS AND ASSIGNS.
Section 25.01. This Lease shall be binding upon and inure to
the benefit of the parties hereto and their successors and assigns.
ARTICLE XXVI. ENVIRONMENTAL COMPLIANCE.
Section 26.01. Lessee covenants and agrees that it will use
the Premises in compliance with any and all local, state or federal
laws and regulations dealing with hazardous or dangerous waste,
clean air and water and other environmental matters, and Lessee
specifically shall indemnify and hold Lessor harmless for any costs
and expenses incurred by Lessor in default of this covenant by
Lessee. Any work or expense for such compliance shall be the sole
responsibility of Lessee from and after the Commencement Date.
Section 26.02. At the termination of this Lease, Lessee shall
remove any tanks, drums or other storage of any hazardous or
dangerous waste substances (as so defined by any local, state or
federal authority) installed by Lessee or installed by Lessor at
the written request of Lessee. Such removal shall satisfy all
applicable laws and regulations, and Lessee shall furnish to Lessor
appropriate documentation of lawful removal and disposition.
Section 26.03. If, at any time during the term of this Lease,
any local, state or federal authority or any of Lessor's mortgagees
should request a report on any such hazardous substances Lessee has
stored or allowed to be stored on the Premises during the Term,
Lessee will either cause said report to be made as soon as
practicable at its own cost and expense, or if not made within
thirty (30) days of Lessor's request for the same, will reimburse
Lessor, as Additional Rent, for Lessor's cost of obtaining said
report.
Section 26.04. Lessee shall dispose of any cleaning
materials, including rags, cloths, liquids, gases or chemical
compounds off of the Premises promptly and according to any
applicable laws or regulations after use.
Section 26.05. At any time during the Term, or within one
hundred eighty (180) days thereafter, Lessor may enter upon the
Premises and inspect the Premises for any evidence of hazardous or
dangerous waste or substances. In the event that there exists any
such hazardous waste or hazardous substances deposited during the
Term by Lessee, Lessee shall promptly remove and dispose of the
same in accordance with all applicable federal, state or local laws
or regulations. This Section 26.05. shall survive the termination
or expiration of this Lease.
ARTICLE XXVII. BROKERS.
Section 27.01. Lessor and Lessee each represent that it has
not dealt with any broker in connection with the negotiation,
execution, or delivery of this Lease.
ARTICLE XXVIII. COMPLIANCE WITH LAW.
Section 28.01. Lessee shall, at its sole cost and expense,
comply or cause compliance with any notices of violations of any
laws and regulations of federal, state, municipal and local
governments, departments, commissions and boards, pursuant to law,
which may impose any violation, order or duty upon Lessee with
respect to the Premises, arising out of Lessee's use thereof.
Notwithstanding the foregoing, Lessee may contest or appeal such
violations, requirements or orders and shall not be required to
comply therewith if Lessee shall contest same by appropriate
proceedings and shall not subject Lessor to criminal liability or
material civil liability provided Lessee shall give such reasonable
security during the pendency of such contest as shall be requested
by Lessor with respect to any costs, fines, expenses, penalties or
damages which may be imposed on Lessor by reason of Lessee's
contest; provided, however, that during any such contest, Lessee
shall, unless prohibited by law (i) continue to pay all rentals due
under this Lease to Lessor and, (ii) continue operations of the
Premises in accordance with the terms and conditions of this Lease.
Upon final resolution of any such contest, Lessee shall promptly
comply with judgement, finding, or order.
ARTICLE XXIX. RELATIONSHIP OF PARTIES; DEFINITION OF LESSOR;
DEFINITION OF LESSEE.
Section 29.01. Nothing contained in this Lease shall be
construed to create the relationship of principal and agent,
partnership, joint venture, or any other relationship between the
parties hereto other than the relationship of landlord and tenant.
Nothing contained in this Lease shall in any way impose any
liability upon the stockholders, officers or directors of Lessor or
stockholders, officers, directors or trustees of Lessee, should
such parties be corporate entities.
29.02. The term "Lessor" as used herein, means Lessor named
herein and subsequent owner of Lessor's estate hereunder, but any
owner of Lessor's estate shall be relieved of all liability under
this Lease, after the date it ceases to be the owner of Lessor's
estate (except for any liability arising or accruing prior to such
date) provided the party succeeding to Lessor's estate shall have
executed an agreement of assumption and assignment of Lessor's
estate; and further provided that any such assumption of liability
is approved in writing by Lessee, which approval shall not by
unreasonably withheld.
Section 29.03. The term "Lessee" as used herein, means Lessee
named herein and any subsequent owner of Lessee's estate hereunder.
ARTICLE XXX. OPTION TO PURCHASE THE PREMISES.
Section 30.01. Lessee shall have the right and option to
purchase the premises at any time prior to the termination of this
Lease for the sum of Three Hundred Eighty Thousand Dollars
($380,000.00); provided that Lessor shall receive written notice of
Lessee's intention to exercise its right to purchase at least
ninety (90) days prior to the expiration of the Lease Term.
Section 30.02. All lease payments made pursuant to Article
III hereof shall be credited against the said price, so that the
price paid at closing shall be a sum equal to the aforesaid
purchase price less the total of lease payments made.
Section 30.03. In the event Lessee desires to exercise its
right to purchase prior to the end of the Lease Term, Lessee shall
notify Lessor in writing of its intention at any time during the
Lease Term, and closing shall occur within thirty (30) days of the
receipt of said notice by Lessor. Each party shall be responsible
for the payment of such closing costs as are customarily paid by
selling and purchasing parties in ▇▇▇▇▇▇▇ County, Georgia.
IN WITNESS WHEREOF, Lessor and Lessee have caused this Lease
to be duly executed the day and year first above written.
LESSOR:
DEVELOPMENT AUTHORITY OF
▇▇▇▇▇▇▇ COUNTY
By:_________________________(L.S.)
▇.▇. ▇▇▇▇, Chairman
Attest:_____________________(L.S.)
▇▇▇▇ ▇▇▇▇, ▇▇., Secretary
Signed, sealed and delivered (CORPORATE SEAL)
this 12 day of October, 1993,
in the presence of:
____________________
Unofficial Witness
/s/▇▇▇▇ ▇▇▇▇▇▇▇
Notary Public
State of Georgia
County of ▇▇▇▇▇▇▇
Commission Expires: 11/22/96
(NOTARY SEAL)
LESSEE:
THIMBLE SQUARE, INC.
By:/s/▇▇▇ ▇▇▇▇▇▇▇▇ (L.S.)
Title: President
Attest:/s/▇▇▇▇ Silk (L.S.)
Title: Asst. Secretary
Signed, sealed and delivered (CORPORATE SEAL)
this 12 day of October, 1993,
in the presence of:
____________________
Unofficial Witness
/s/▇▇▇▇ ▇▇▇▇▇▇▇
Notary Public
State of Georgia
County of ▇▇▇▇▇▇▇
Commission Expires: 11/22/96
(NOTARY SEAL)
EXHIBIT A
TO LEASE BETWEEN
DEVELOPMENT AUTHORITY OF ▇▇▇▇▇▇▇ COUNTY, As Lessor
and THIMBLE SQUARE, INC., As Lessee
Dated October 12, 1993
All that tract or parcel of land lying and being in Land ▇▇▇ ▇▇.▇▇▇
▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ of ▇▇▇▇▇▇▇ County, Georgia, consisting
of 3.50 acres, more or less, being designated as Tract No. 3 on
that certain plat of survey by ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, G.R.L.S 2271,
which plat is recorded in Plat Book 9, Page 291, ▇▇▇▇▇▇▇ County
Records, and incorporated by reference herein for a more full and
complete description and all other legal purposes.
This property is subject to an easement for a Georgia Power Company
power line right way as shown on the aforesaid plat of survey.