EXHIBIT 10.16
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THE ATLANTA MERCHANDISE MART
LEASE AGREEMENT
This Lease Agreement made and entered into this 17th day of April 1998
by and between AMC, INC., a Georgia corporation (hereinafter referred
to as "Lessor"), and DESTINATION, INC., a corporation under the laws
of the State of Georgia (hereinafter referred to as "Lessee").
WITNESSETH:
In consideration of the promises and covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Lessor hereby leases to Lessee, and
Lessee hereby leases from Lessor, those certain premises more
particularly described herein, in accordance with the Terms and
Conditions attached hereto and incorporated herein by this reference.
This lease shall consist of the following Basic Lease Information, any
special stipulations set forth herein, the attached Terms and
Conditions, and any exhibits expressly incorporated herein
(collectively hereinafter referred to as the "Lease").
BASIC LEASE INFORMATION:
Section 1.2 Showroom: 22-S-20
Section 1.2 Gross Square Feet of Showroom: Approximately 9,933
Section 2.1 Term Commencement Date: May 1, 1998
Section 2.1 Expiration Date: June 30, 2002
Section 3.1 Base Rent: $11,333.00 per month from May 1, 1998
to June 30, 1999
$11,786.32 per month from July 1, 1999
to June 30, 2000
$12,257.77 per month from July 1, 2000
to June 30, 2001
$12,748.08 per month from July 1, 2001
to June 30, 2002
Section 3.3 Base Year: 1998
Section 3.3 Gross Leasable Square Feet
in Building: 2,027,385
Section 3.3 Lease's Percentage Share: .0048994%
Section 3.5 Security Deposit N/A
Section 6.9 Time of Operation: 8:00 AM - 6:00 PM Monday through Friday, and such hours as
may be designated by Lessor during all Market Exhibition
Periods.
BASIC LEASE INFORMATION, CONTINUED:
Section 12.12 Address of Parties:
Lessor: AMC, Inc.
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▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Lease Administrator
With a copy to:
AMC, Inc.
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▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
Lessee: Destination, Inc.
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▇▇▇▇▇ ▇▇-▇-▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Section 12.18 Special Stipulations (if any):
12.18 CONSTRUCTION LOAN. Notwithstanding anything contained herein
to the contrary, Lessor agrees to loan to Lessee an amount
equal to fifty thousand dollars ($50,000.00) (hereinafter
referred to as the "Construction Loan"), for Lessee's total
cost of the construction of Lessee Improvements made to the
Premises, as indicated in EXHIBIT "C" HERETO. Lease agrees to
reimburse and pay to Lessor the Construction Loan in accordance
with the terms of the Promissory Note, a copy of which is
attached hereto as EXHIBIT "B" and made a part hereof. The
parties further agree that any default under said Promissory
Note shall be deemed an Event of Default under this Lease.
12.19 (a) In the event the Agreement dated April 17, 1998 is
terminated on the Termination Date (as said term is
defined in the Agreement), or if sooner terminated (except
if such termination is due to a monetary default by
Lessee), this Lease shall terminate within one hundred
eighty (180) days from the effective date of termination
of the Agreement. Lessee agrees that all Rent and other
amounts paid to Lessor are non-refundable, including
without limitation, any payments made pursuant to the
Promissory Note dated April 17, 1998, and Lessee shall not
have any claim thereto. Lessee will have the right to
vacate and surrender the Premises in accordance with the
terms and conditions of this Lease, within one hundred
eighty (180) days from the effective date of termination
of the Agreement, by providing written notice to Lessor of
the effective date of vacation and surrender of the
Premises, which shall also be the effective date of
termination of the Lease. Lessee agrees that it shall
remain in compliance with all of the terms and conditions
of the Lease during said time period, including without
limitation the payment of Rent and installment payments
under the Promissory Note dated April 17, 1998.
(b) This Lease may not be terminated as provided in this
Section 12.19 at any time during which Lessee is in
default of its covenants and obligations under this Lease,
and no termination shall be effective if Lessee shall be
in default of its obligations and covenants under this
Lease as of the date of such termination, unless Lessor
otherwise expressly agrees in writing.
12.20 PRIOR LEASE. Lessee's lease dated May 18, 1993, for the
premises known as Space 13-A-11, and a Portion of B2, B3 and B5
in the Building (the "Prior Lease") shall be deemed to
terminate on April 30, 1998. Notwithstanding the above, Lessee
shall continue to pay Lessor Base Rent and Additional Rent and
any other charges due pursuant to the terms of both the Prior
Lease and the Lease, until possession of the former premises is
actually delivered by Lessee to Lessor. Following Lessee's
delivery of the former premises to Lessor, Lessee shall be
responsible only for payment of Base Rent, Additional Rent, and
any other charges due pursuant to the terms of the Lease.
12.21 TERM. The Term of this Lease is intended to be co-terminus
with that certain Agreement between Destination, Inc. and AMC,
Inc. dated April 17, 1998 (the "Agreement"), provided that, in
accordance with the terms of Section 12.19 of this Lease,
Lessee shall have up to one hundred eighty (180) days to vacate
the Premises upon termination of the Agreement.
The Sections of the Terms and Conditions identified above in the left
margin are those sections where references to particular Basic Lease
Information appear. Each such reference shall incorporate the
applicable Basic Lease Information. In the event of any conflict
between any Basic Lessee Information and the Terms and Conditions, the
latter shall control.
Lessor: AMC, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Executive Vice President
Attest: _________________________________________
Name: ___________________________________________
Title: ___________________________________________
Lessee: Destination, Inc.
By: /s/▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Title: Secretary/Treasurer
Name: ____________________________________________
Title: ___________________________________________
By: ______________________________________________
Name: ____________________________________________
Title: ___________________________________________
ATLANTA MERCHANDISE MART
TERMS AND CONDITIONS
Article 1
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PREMISES
1.1 DEFINITIONS. Unless the context of this Agreement shall
require otherwise:
(a) "Bare wall," "bare wall premises," and "bare wall
condition" shall mean and refer to the unfinished interior
walls as originally constructed, including, without
limitation, drywall, concrete block, aluminum and/or
glass.
(b) "BLI" shall mean and refer to the Basic Lease Information
pages attached hereto and incorporated herein by
reference.
(c) "Building" shall mean and refer to that structure owned or
operated by Lessor and located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and known as the Atlanta
Merchandise Mart, as said structure may from time to time
hereafter be expanded or modified.
(d) "Common Area" shall mean and refer to all areas of the
Building used or available for use in common by lessees,
their employees and invitees, including, without
limitation, lobbies, stairs, escalators, elevators,
corridors, restrooms, parking areas, landscaped areas,
loading docks, and all other areas and improvements which
may be provided by Lessor for the convenience and use of
the lessees and occupants of the Building, and their
respective agents, employees and invitees.
(e) "Market Exhibition Period" shall mean and refer to those
market periods for professional buyers, wholesalers, and
retail shop owners in the rugs, furniture, gift, textile
and decorative accessories industries, as may be organized
and arranged by Lessor from time to time during this
Lease. Such market periods shall be held on such dates, at
such times, and for such duration as may be established by
Lessor in its sole discretion.
(f) "Gross Square Feet" shall mean and refer to that area
contained in the Premises as measured from centerline to
centerline of all perimeter partitions of the Premises and
from the outermost portion of the showroom front of all
corridors to either the inside face of all exterior
building walls or the centerline of an interior partition,
as the case may be, plus Lessee's prorata share of the
Common Area. It is acknowledged and agreed by the parties
that the total gross square feet in the Premises as
defined herein shall be subject to adjustment only in the
event the area of the actual as-built Premises varies by
more than one percent (1%) from the gross square footage
set forth in the BLI.
(g) "Gross Leasable Square Feet" shall mean the aggregate of
all gross square feet in the Building.
(h) "Premises" shall mean and refer to that particular demised
showroom referred to in Section 1.2.
(i) "Rent" shall mean and refer to all charges payable by
Lessee to Lessor hereunder, including, without limitation,
Base Rent and Additional Rent (as said terms are hereafter
defined).
1.2 PREMISES.
(a) Lessor does hereby lease, demise, and rent to Lessee and
Lessee does hereby lease, take, and rent from Lessor under
and according to the provisions of this Agreement, those
certain premises described on the BLI containing
approximately the number of Gross Square Feet set forth on
the BLI, as more specifically shown on the floor plan
attached hereto as "Exhibit A" and incorporated herein by
reference (hereinafter referred to as the "Premises");
provided, however, that the Premises shall exclude the
foundations, concrete floorslabs, exterior walls (except
plate glass or other glass), and the roof of the Building.
(b) Subject to the Building Manual (a copy of which Lessee
hereby acknowledges receipt of) and such other rules and
regulations as may be prescribed by Lessor from time to
time, the use and occupancy by the Lessee of the Premises
shall include the use of the Common Area in common with
all others to whom Lessor has or may hereafter grant
rights to use the same and the use of such other
facilities of Lessor as may be designated from time to
time by Lessor as Common Area. The Common Area shall be
under the control of Lessor and any use thereof by Lessee
is under revocable license. Lessor reserves the right at
any time, and from time to time, to change the
configuration of the Common Area, to eliminate all or part
of the Common Area, to subject the Common Area and the use
thereof to any restrictions which Lessor, in its sole
discretion, may determine, to close temporarily any part
or portion of the Common Area to make repairs to changes
or to perform such other acts in and to the Common Area as
Lessor, in its sole judgment, may deem desirable.
(c) Lessor expressly reserves the right to relocate Lessee, at
Lessor's sole cost and expense, to any other space or
showroom within the Building of comparable size, with
comparable improvements, and at a comparable Rent.
(d) No easement of light or view is included in this Lease of
the Premises, and no diminution or shutting off of light
or air or view shall affect this Lease.
Article II
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TERM
2.1 TERM.
(a) The term of this Lease (hereinafter referred to as the
"Lease Term") shall commence on the Term Commencement Date
set forth on the BLI, or on the date that Lessor delivers
the Premises to Lessee, whichever is earlier (hereinafter
referred to as the "Commencement Date") and shall cease,
unless terminated earlier in accordance with the terms of
this Lease, on midnight of the Expiration Date set forth
on the BLI (hereinafter referred to as "Expiration Date").
Lessor shall have no liability to Lessee if Lessor is
unable to deliver possession of the Premises on the above
Commencement Date by reason of the holding over of the
prior occupant, or by reason of delay in completion of the
Building or Lessor's improvements, if any, to the
Premises, or for any other cause beyond the reasonable
control of Lessor, but in such event Base Rent shall not
commence until possession of the Premises is tendered to
Lessee. An adjustment in the date Base Rent shall commence
shall not adjust the Expiration Date or Commencement Date
of this Lease. If Lessee shall occupy the Premises prior
to the Commencement Date with the consent of Lessor, such
occupancy shall be subject to all the terms and conditions
of this Lease.
(b) In the event Lessee holds possession of the Premises
beyond the Expiration Date set forth herein and obtains
the written consent of Lessor therefor, then this Lease
and the Lease Term hereof shall be deemed to be extended
on a month-to-month basis upon all of the terms and
conditions herein set forth except that: (i) Such tenancy
may be terminated upon not less than thirty (30) days
prior written notice by either party hereto; and (ii)
Lessee shall pay to Lessor monthly Rent in advanced on the
first day of such extension period and thereafter on the
first day of each calendar month or portion thereof during
such extension period in an amount equal to one hundred
fifty percent (150%) of the Rent payable in the last full
calendar month preceding the first day of such extension
period.
2.2 INSPECTION AND ACCEPTANCE OF PREMISES.
(a) Lessor agrees to grant Lessee reasonable time and access
to inspect the Premises prior to occupancy.
(b) Occupancy of the Premises by Lessee shall be deemed
conclusively to establish that the Premises and all other
improvements required to be made by Lessor hereunder, if
any, have been completed per specifications and floor
plans and in accordance with Lessee's wishes and needs and
are accepted by Lessee as being in good and satisfactory
condition.
Article III
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RENT
3.1 BASE RENT. Lessee shall pay Lessor Base Rent for the Premises
in the amounts set forth on the BLI. Base Rent shall be due and
payable in advance upon the Commencement Date (except as may be
provided in Section 2.1(a) hereof) and upon the first day of
each calendar month thereafter during the Lease Term; provided,
however, that if the Lease Term shall commence on a day other
than the first day of the calendar month, then the Base Rent
for such first fractional month shall be such proportion of the
monthly rental set forth above as the numbers of days in such
fractional month bears to the total number of days in that
calendar month, and shall be payable along with the first full
month's rent on or before the Commencement Date.
3.2 PAYMENT OF RENT. Base Rent, Additional Rent, and all other
charges payable by Lessee hereunder are cumulative, shall be
promptly paid by Lessee to Lessor without prior demand therefor
by Lessor, and shall be made without deduction or set-offs of
any kind or nature whatsoever in lawful money of the United
States of America at the office of Lessor, or such other
location as Lessor may request. Overdue Base Rent, Additional
Rent, and all other charges payable by Lessee hereunder shall
bear interest as set forth in Section 12.6 herein. Lessor shall
have no obligation to accept less than the full amount of all
amounts payable by Lessee hereunder and any applicable interest
thereon, and if Lessor shall accept less than the full amount
owing, Lessor may apply the sums received, in Lessor's sole
discretion, toward any of Lessee's obligations to Lessor, and
such acceptance of less than the full amount due and owing at
any given time shall not constitute a waiver of any Events of
Default hereunder.
3.3 ADDITIONAL RENT.
(a) Lessor shall pay all real estate taxes, assessments, and
other governmental levies against the Building
(hereinafter referred to as "Real Estate Taxes"), except
as otherwise hereinafter provided. Commencing in the first
calendar year after the Base Year (as described on the
BLI), if the amount of the Real Estate Taxes levied or
assessed against the Building shall exceed by more than
six percent (6%) per annum the Real Estate Taxes assessed
in the Base Year, Lessee shall pay as Additional Rent
Lessee's Percentage Share of that portion of such excess
(e.g., over and above six percent (6%) per annum).
The computation of Additional Rent under this Section
3.3(a) is expressed by the following formula:
A = [T-B(1+(0.6 x C))] x L
A = Additional Rent
T = Real Estate Taxes for the calendar year in
question
B = Real Estate Taxes for the Base Year
C = The number of calendar years since the end of
the Base Year
L = Lessee's Percentage Share
(b) Lessor shall pay the costs of providing water, gas and
electricity (hereinafter collectively called the "Utility
Costs") to the Building. Commencing in the first calendar
year after the Base Year, if the amount of the Utility
Costs shall exceed by more than six percent (6%) per annum
the Utility Costs for the Base Year, Lessee shall pay as
Additional Rent under this Section 3.3(b) is expressed by
the following formula:
A = (U-B(1+0.6 x C)) x L
A = Additional Rent
U = Utility Costs for the calendar year in question
B = Utility Costs for Base Year
C = The number of calendar years since the end of
the Base Year
L = Lessee's Percentage Share
(c) In any calendar year in which the tenancy of the Lessee is
for less than the full calendar year, the Additional Rent
due under this Section 3.3 shall be adjusted and prorated
so that the Lessee's Percentage Share of said sum shall
bear the same percentage that the partial calendar year
bears to the full calendar year. Such Additional Rent due
under this Section 3.3 shall be paid in one (1) lump sum
which shall be due and payable thirty (30 days after
Lessee is invoiced therefor. Lessee's obligation to pay
such Additional Rent shall survive the termination of this
Lease in the event the Real Estate Taxes or Utility Costs
payable during the last year of Lease cannot reasonably be
determined until after the termination of this Lease.
(d) Lessor shall cause an independent certified public
accountant selected by Lessor, in its sole discretion, to
prepare on an annual basis a statement of the Utility
Costs and Real Estate Taxes paid by Lessor, a copy of
which shall be made available to Lessee upon written
request. The Statement of said independent certified
public accountant shall be final and binding upon Lessor
and Lessee, absent manifest error. Lessee hereby waives
any further accounting by Lessor.
3.4 ACCORD AND SATISFACTION. No endorsement or statement on a
check or letter accompanying any check or payment by Lessee to
Lessor shall be deemed an accord and satisfaction or a release
of liability, and Lessor may accept such check or payment
without prejudice to Lessor's rights to recover the balance of
all sums due to Lessor hereunder or to pursue any other remedy
set forth in this Lease or granted by law or in equity.
3.5 SECURITY DEPOSIT. Lessee has deposited with Lessor a Security
Deposit as set forth on the BLI (the "Deposit"). The Deposit
shall be held by Lessor as security for the faithful
performance by Lessee of all the provisions of this Lease to be
performed or observed by Lessee. If Lessee fails to pay Base
Rent, Additional Rent, or other charges due hereunder, or an
Event of Default otherwise occurs with respect to any provision
of this lease, Lessor may use, apply, or retain all or any
portion of the Deposit for the payment of any such Base Rent,
Additional Rent, or other charge for which Lessor may become
obligated by reason of Lessee's Event of Default or for
compensation to Lessor for any loss, expense, or damage which
Lessor may suffer thereby. If Lessor so uses or applies all or
any portion of the Deposit, Lessee shall, within ten (10) days
after demand therefor, deposit cash with Lessor in an amount
sufficient to restore the Deposit to the full amount thereof
and Lessee's failure to do so shall be a material breach of
this Lease. If Lessee performs all of Lessee's obligations
hereunder, the Deposit, or so much thereof as has not
theretofore been applied by Lessor, shall be returned without
payment of interest or other increment for its use to Lessee at
the expiration of the Lease Term after Lessee has vacated the
Premises. No trust relationship is created herein between
Lessor and Lessee with respect to the Deposit, and Lessor shall
not be required to keep the Deposit separate from its general
accounts.
Article IV
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PREMISES CONSTRUCTION, MAINTENANCE AND ALTERATION
4.1 LESSOR'S IMPROVEMENTS.
(a) Lessor is responsible for the construction and maintenance
of the Building, including the Common Area and the
structural portion of the Building from the exterior of
the Building to the perimeters of the Premises and of the
premises of other lessees. If this Lease is for the
Premises which are unfinished at the date of execution
hereof, Lessor agrees to provide, without expense to
Lessee, except as otherwise expressly provided herein,
including without limitation Section 12.18 hereof, the
following items: (i) Concrete ceiling and floor comprising
structure of Building; (ii) Demising walls in bare wall
condition defining the perimeter of the Premises; (iii)
Electrical service to junction box(es) located in the
concrete ceiling of the Premises; (iv) Conditioned air;
(v) glass door(s); and those items listed on Exhibit "C"
hereto.
(b) If this Lease is for space which has been previously
furnished prior to execution hereof, Lessor provides the
Premises to Lessee on an "as is" basis, and by taking
possession of the Premises, Lessee acknowledges that the
Premises are in good and satisfactory condition and that
Lessor has agreed to perform no improvements to the
Premises unless the same are expressly set forth herein.
4.2 LESSOR'S MAINTENANCE OF THE PREMISES. After Lessor has
completed its improvements to the Premises as set forth in
Section 4.1 herein, if applicable, Lessor shall provide
maintenance service only to those portions of the Premises
constituting structural portions of the Building, as set forth
in section 4.1(a) herein, including parts and labor for fan
units and maintenance for electrical equipment constituting
structural portions of the Building, and electrical conduits
and lines to the perimeter of the Premises and of other lessees
(but not including light fixtures, lamps, light bulbs, and
other electrical accessories).
4.3 LESSEE'S IMPROVEMENTS AND ALTERATIONS.
(a) Lessee agrees to cause the Premises to be finished, in
accordance with this Agreement, with paintings and other
interior decoration suitable for a trade mart and of a
quality and design consistent with the standards generally
observed in Lessee's industry. All alterations or
improvements to the bare wall Premises or previously
finished Premises shall be made by Lessee at Lessee's sole
cost and expense, shall be of good and workmanlike
construction, and shall in every respect comply with all
governmental laws, codes, ordinances, regulations, and
other requirements, whether federal, state, or local,
which may govern construction of said alterations or
improvements, including, without limitation, obtaining the
proper building permits and certificates of occupancy.
Lessee shall not make or cause to be made any said
alterations or improvements or erect, remove or alter
partitions in the Premises without first delivering to
Lessor final plans and specifications therefor and
obtaining Lessor's prior written consent thereto, but such
review and consent by Lessor shall not waive or in any
manner diminish Lessee's responsibilities with respect to
such construction as set forth in this Lease or estop
Lessor from latter asserting breach by Lessee of such
responsibilities in the event such breach later becomes
apparent to Lessor; provided, however, that Lessee may,
without the consent of Lessor, but at its own cost and
expense and in good and workmanlike manner, make such
minor alterations, additions, or other improvements to the
Premises as it may deem advisable, without altering the
basic character or layout of the Premises or the Building
or the improvements to the Premises, such as erecting
shelves and display fixtures. (For purposes of this
Agreement, the term "display fixtures" shall mean those
trade fixtures which are common in Lessee's business.)
Within ninety (90) days of the projected date of occupancy
of the Premises by Lessee or, if later, the date on which
the Lease is executed, Lessor shall provide Lessee with a
suggested list of contractors from which list Lessee may
select its contractor to make alterations or improvements
to the Premises. Such list may be amended by Lessor from
time to time. In the event Lessee desires to use a
contractor not on such list, Lessee shall first obtain the
written approval of Lessor for such contractor.
(b) Lessee shall require in any agreement with any contractor
or any subcontractor for alterations or improvement to the
Premises that such contractor or subcontractor must obtain
and maintain such insurance as Lessor shall reasonably
require, and must comply with all rules and regulations
governing the Building and the Premises, and the use or
access thereto, and such further rules and regulations
governing the building and premises as may be promulgated
by Lessor from time to time.
(c) All alterations, additions and improvements to or of the
Premises and all fixtures, equipment and signs attached to
the Premises, whether now in existence or hereinafter made
by either Lessor or Lessee (herein referred to
collectively as the "Improvements") shall, during the
Lease Term, be Lessee's property, and all taxes or
governmental charges with respect thereto during the Lease
Term shall be paid by Lessee. Upon the expiration or
sooner termination of this Agreement or upon the entry,
repossession or reentry of the Premises by Lessor pursuant
to Section 11.2 hereinbelow, whichever is earlier, all
such Improvements (including, without limitation, all
components of any track lighting or other lighting system
installed within the Premises, but excluding personal
property, movable furniture, trade fixtures which can be
removed without leaving the Premises in an unsightly
condition or rendering any systems in the Premises non-
functional, and such Improvements that Lessee is to remove
in accordance with Section 12.15) shall be and become
Lessor's property without compensation to Lessee.
Improvements shall include, but not be limited to all
partitions, all portions of any ceiling or wall-mounted
light fixtures, wall racks, floor coverings, conditioned
air ducts, drapery hardware, wall coverings, ceiling
cover, electrical wiring, pipes and conduits. Lessee shall
not remove any Improvements from the Premises except as
herein provided, and shall fully repair any damage
occasioned by any such permitted removal.
4.4 LESSEE'S MAINTENANCE OF THE PREMISES. Lessee shall, at all
times during the Lease Term and at Lessee's sole cost and
expense, keep and maintain the Premises and every part thereof
(including, without limitation, all Improvements, glazing, and
store fronts, but excluding exterior walls, roofs, floors and
structural elements) in good and sanitary condition and repair
and free from pests. Lessee hereby waives all rights to make
repairs at the expense of Lessor as may be provided by any law,
statute or ordinance now or hereafter in effect.
4.5 ENTRY BY LESSOR. In the event of the expansion of or other
structural alteration to the Building by Lessor, or in the
event any repairs are to be made by Lessor pursuant to this
Lease or any other lease of showrooms in the Building. Lessor
shall have the right to enter the Premises and make use of any
portion of the Premises as are necessary to accomplish said
expansion, structural alteration or repair, and Lessee shall be
entitled to an abatement of Rent in such event only to the
extent such entry prevents Lessee from conducting its normal
business in the Premises. In addition, Lessor and its
employees, agents, and assigns shall have the right to enter
the Premises at any time during normal business hours (i) to
inspect the condition of the Premises for the compliance by
Lessee with this Lease, but no such inspection or failure to
inspect shall waive any rights of Lessor with respect to any
Event of Default by Lessee, whether any such Event of Default
was or should have been discovered; (ii) to post "For Lease"
signs upon or within the premises during the last ninety (90)
days of the lease term or during any period of holding over by
lessee; (iii) to exhibit the Premises to Prospective lessees or
purchasers; and (iv) to post notices of non-responsibility
and/or non-payment. In the event Lessee fails to maintain and
clean the Premises as required hereunder, Lessor may enter the
Premises at any time for the purpose of cleaning
and restoring same to a clean and sanitary condition, and
Lessee shall pay on demand Lessor's actual expenses incurred
thereby as Additional Rent hereunder. The foregoing shall not
obligate Lessor to take any actions with respect to the
Premises. Lessor shall use its best efforts to accomplish its
actions within the Premises with minimum interference with
Lessee, provided, however, that any liability of Lessor arising
out of any such entry shall be limited to Lessor's gross
negligence or willful misconduct.
Article V
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ADDITIONAL OBLIGATIONS OF LESSOR
5.1 UTILITIES AND OTHER SERVICES. Lessor agrees to provide
physical connections for electricity to the perimeter of the
Premises in addition to conditioned air to the Premises and of
the Common Area of the Building at such times as Lessor in its
sole discretion deems reasonably necessary for the comfortable
occupancy thereof; provided, however, Lessor shall not be
required to deliver or furnish in excess of five (5) ▇▇▇▇▇ of
electricity per square foot to the Premises. Lessee agrees to
reimburse to Lessor, upon demand, all costs incurred by Lessor
in connection with Lessee's use of electrical power in excess
of five (5) ▇▇▇▇▇ per square foot of the Premises. Lessor
further agrees to provide public escalator or elevator service
for the Building. Lessor reserves the right to discontinue
escalator and elevator service, the supply of conditioned air,
and other similar services to the Premises and Common Area of
the Building on Saturdays, Sundays, and holidays between the
hours of 5:00 p.m. and 8:00 a.m. and at such other times as
Lessor may reasonably specify; provided, however, such services
shall remain in operation during the business hours of all
Market Exhibition Periods.
5.2 COMMON AREA MAINTENANCE. Lessor will maintain and operate the
Common Area in reasonably good order and condition. The cost
of repairing damage to any part of the Common Area caused by
the act of the Lessee or its agents, employees, or invitees
shall be paid by Lessee upon demand by Lessor.
5.3 SHIPPING AND RECEIVING SERVICES. Lessor may provide, but shall
be under no obligation to provide, services in connection with
the shipping and receiving of merchandise by Lessee to or from
the Premises or the Building. In the event such services are
provided, Lessee expressly agrees that the acceptance by
Lessor, its contractors, agents or employees, of custody or
control of any merchandise or other personal property of Lessee
shall not constitute a bailment, and lessee expressly waives
any claim against Lessor, its contractors, agents or employees,
arising out of or relating to any loss of or damage to any such
personal property, unless such loss or damage results solely
from the gross negligence or intentional misconduct of Lessor,
its employees or agents acting within the scope of their
employment or agency.
Article VI
----------
ADDITIONAL OBLIGATIONS OF LESSEE
6.1 INSURANCE. Lessee at its sole expense, shall procure and
maintain during the Lease Term: (i) broad form commercial
general liability insurance, including fire legal liability
coverage, bodily injury coverage (which includes personal
injury coverage), and property damage liability coverage
insuring against any and all liability of Lessee, its agents
and its employees with respect to the Premises or arising out
of the maintenance, use, or occupancy thereof, said liability
insurance to have combined limits in the aggregate for bodily
injury and property damage of not less than $1,000,000 in any
one incident; and (ii) fire and extended coverage insurance on
all improvements to the Premises and all contents therein in an
amount not less than one hundred percent (100%) of the
replacement cost thereof.
All such insurance shall insure the performance by Lessee of
the indemnity agreement contained in Section 6.7 herein with
respect to liability for injury to or death of persons and
injury to or damage to property. Lessor shall be named as an
additional insured on all such policies, as lessor's interest
may appear. The policy or policies evidencing such insurance
shall provide that same may not be canceled or amended without
thirty (30) days prior written notice to Lessor, and shall be
issued by an insurance company licensed to do business in
Georgia. Prior to the Commencement Date Lessee shall furnish
to Lessor a certificate of insurance evidencing the existence
of all insurance required to be maintained by Lessee pursuant
to this Lease. Lessee will not permit the Premises to be used
for any purpose which would render the insurance thereon or on
the Building void or the insurance risk more hazardous or
increase the premium rate therefor, it being understood and
agreed that the use of the Premises in the proper and ordinary
conduct of Lessee's business for the purposes set forth in
Section 7.1 herein shall not in any event be considered a
violation of this Section.
6.2 RULES AND REGULATIONS. Lessee, its employees, guests and
invitees shall observe and comply with any and all rules and
regulations established by Lessor from time to time, written
notice of which shall be provided to Lessee, including, without
limitation, all rules and regulations set forth in the Building
Manual. Said rules and regulations, including those set forth
in the Building Manual, are a part of this Lease as if fully
set forth herein in their entirety.
6.3 COMPLIANCE AND LAWS. Lessee shall, at its sole cost and
expense, promptly comply with, keep and maintain the Premises
in compliance with the following as now in effect or as may be
hereinafter in effect; all laws, statutes and ordinances and
all rules, regulations and orders of any governmental authority
including, without limitation, City of Atlanta Building Codes;
any direction or occupancy certificate issued pursuant to any
law, regulation or rule by any public officer, the
provisions of any and all recorded documents affecting the
Premises; insofar as any of the foregoing related to or
affect the condition, use or occupancy of the Premises,
excluding requirements of structural change unless related
to or affected by Lessee's improvements or acts.
6.4 LIENS. Lessees shall keep the Premises, the Building, and the
land upon which the Building is situated free from any liens
and claims of lien arising out of any work performed, materials
furnished, or obligations incurred by, for, or at the instance
of Lessee or its licensees, sublessees, assigns, or
concessionaires. Lessor shall have the right to post or keep
posted on the Premises any notices that may now or hereafter be
provided by law or which Lessor may deem to be proper for the
protection from and against such liens. Should any such lien or
claim of lien be filed or recorded, Lessee shall bond against
or discharge the same within five (5) days after notice of such
lien or claim of lien is received by Lessee or Lessor, and
shall immediately notify Lessor upon receipt of any notice or
claim of lien, including a preliminary notice of lien. Lessee
authorizes Lessor, at its sole option, to deliver on its behalf
any statutory demand for filing lien claims to any person who
has delivered material and equipment to or has furnished labor
or services upon the Premises. Nothing contained in this Lease
or in any subsequent agreement between Lessor and Lessee or any
contractor or subcontractor of Lessee relating to improvements,
alterations or repairs shall be deemed or construed in any way
as constituting the consent or request of Lessor, expressed or
implied, by inference or otherwise, to any contractor,
subcontractor, laborer, mechanic or materialman for the
performance of any labor or the furnishing of any materials for
any specific improvement, alteration, or repair of or to the
Premises, or any part thereof, or as giving Lessee a right,
power, or authority to contract for or permit the rendering of
any services or the furnishing of any materials that would give
rise to the filing of any mechanic's or materialmen's liens or
claims of lien against the Premises or Lessee's interest
therein, the Building, or the land upon which the Building is
situated.
6.5 FURTHER ASSURANCE. Lessee agrees, at any time and from time to
time upon not less than ten (10) days prior written notice by
Lessor, to execute, acknowledge, and deliver to Lessor a
written statement in a form acceptable to Lessor addressed to
Lessor and such other party or parties as Lessor shall direct,
in which statement Lessee shall (i) certify that this lease is
unmodified and in full force and effect or, if there have been
modifications, that this lease, as modified, is in full force
and effect; (ii) state the dates through which all Rent has
been paid; (iii) certify that there exists no default in the
performance of any covenant, agreement, term, provision, or
condition of this Lease or, if there exists such a default,
specify the nature of each such default; and (iv) certify that
there are no set-offs, counterclaims, or defenses available to
Lessee against Lessor, or, if there exists any such set-off,
counterclaim or defense, specify the nature thereof. Lessee
hereby agrees that Lessor and such other party or parties to
whom such certificate is addressed may and will rely upon
Lessee's certifications and statements in connection with any
financing or sale of the Building or of the Building and the
land on which it is located.
6.6 DEFECTS. Lessee shall report immediately and in writing to
Lessor any defective condition in or about the Premises,
actually known, or if Lessee should have reasonably known by
its actual occupancy of the Premises, which Lessor is required
to repair under the terms of this Lease. A failure to report
same shall make Lessee liable to Lessor for any expense or
damage, whether direct or indirect, to Lessor arising out of
any such failure to report a defective condition. Lessee's
liability for indirect damages in connection with the
negligence of Lessee, its agents, contractors and employees in
failing to report any such defective condition shall be limited
to the amount of comprehensive general liability insurance and
fire extended coverage insurance required under the Lease.
There shall be no limit on indirect damages caused by or in
connection with the gross negligence or willful misconduct of
Lessee, its agents, contractors and employees in filing to
report same.
6.7 INDEMNIFICATION. Lessee agrees to indemnify and hold Lessor
harmless from and against any and all claims, liabilities,
actions, expenses, losses, or damages whatsoever on account of
or in connection with any loss, injury, death or damage to
persons or property or business arising out of or in connection
with Lessee's use or occupancy of the Premises, including,
without limitation, the condition of the Premises, or any act
or omission, whether or not negligent, of Lessee, its agents,
contractors, employees, guests, or invitees, or any water
and/or plumbing system malfunction, developing as a result of
lessee's extension and use of Lessor's water and sewage systems
(such indemnification included, but shall not be limited to
water damage to the Premises and the Building; the costs for
repair, restoration and replacement of any surfaces, finish,
structure, equipment, furnishings, or merchandise damaged or
altered by said extension, as well as any attendant liability
arising therefrom); provided, however, Lessee shall not be
required to indemnify or hold Lessor harmless from or against
any claims, liabilities, actions, expenses, losses, or damages
to the extent same arise directly out of the gross negligence
or intentional misconduct of Lessor, its agents or employees
acting within the scope of their agency or employment. Lessee
shall further indemnify and hold Lessor harmless from and
against the performance or non-performance of any covenant or
agreement to be performed by Lessee pursuant to the terms and
conditions of this Lease. In addition, Lessee shall hold Lessor
harmless from and against all costs, reasonable attorney fees,
expenses, and liabilities incurred in connection with any
claim, action or proceeding brought or in any way connected
with the matters against which Lessee has agreed to hold Lessor
harmless.
6.8 TAXES. Lessee shall pay before delinquency any and all taxes,
assessments or governmental charges (whether same are now in
effect or subsequently enacted) during the Lease Term which are
levied or assessed against Lessee's business in the Premises or
upon Lessee's improvements, fixtures, furniture, appliances or
personal property installed or located in the Premises or which
constitute a lien against any of the foregoing.
6.9 TIME OF OPERATION. Lessee shall keep the Premises illuminated
and open for business with an adequate staff in attendance and
its products available for display and marketing during all
Market Exhibition Periods, and during such other times as are
set forth in the BLI (as such times may reasonably be adjusted
by Lessor, from time to time).
Article VII
-----------
USE OF PREMISES
7.1 USE.
(a) The Premises shall be used and occupied by the Lessee as
an office and for no other purpose. Lessee agrees to
conduct its business at all times in a reputable manner
and to operate all of the Premises unless prevented from
doing so because of fire, accident or force majeure.
Lessee shall, at its own cost and expense, obtain any and
all licenses and permits necessary for the aforesaid use.
(b) Lessee shall not solicit, peddle, canvas or distribute
handbills or other written material or permit any such
acts in its behalf, in the hallways, corridors, or other
Common Areas of the Building, or on the grounds, parking
areas, and sidewalks surrounding the Building. All such
activities shall be confined to the Premises. Lessee shall
not solicit sales from persons other than accredited
retail and wholesale merchants and their representatives.
(c) Lessor reserves the right to prescribe qualifications and
time for admission to the Building, including but not
limited to the payment of an admission fee, and to
restrict access to the Building or any portion thereof to
accredited retail and wholesale merchants and their
representatives, and to make admission into the Building
conditioned upon presentation and exhibition of such
credentials as Lessor may deem necessary or appropriate.
Lessee shall be furnished with credentials for admission
into the Building if deemed necessary by Lessor.
(d) No sign, tag, label, picture, advertisement, or notice
shall be displayed, installed, distributed, inscribed,
painted or affixed by Lessee on the exterior doors, plate
glass or exterior or interior walls of the Premises or on
any part of the outside or inside of the Building without
the prior written consent of the Lessor as to the content
and design thereof. Lessee shall remove all signs, if any,
at the termination of this Lease. Installation and removal
of all signs shall be made in a good and workmanlike
manner so as to avoid injury to or defacement of the
Building, Premises and the improvements therein. No show
cases or other fixtures or objects shall be placed by
Lessee in front of the Building, in the corridors or
elsewhere in or about the Building, other than within the
Premises.
(e) Furniture, products, merchandise, and other bulky objects
shall be brought into and removed from the Building only
through the freight entrance and freight elevators, and
movement of such objects shall be subject to reasonable
requirements of Lessor as to time and manner of moving. No
such items shall be brought into or removed from the
Building during any major Market Exhibition Period without
prior written consent from Lessor.
(f) No additional locks shall be placed on the doors of the
Premises by Lessee, nor shall any existing locks be
changed. Lessor will without charge, furnish Lessee with
three keys for each lock existing upon the entrance doors
to the Premises when Lessee assumes possession. A charge
of five dollars ($5.00) shall be required for additional
keys. Keys are to be issued to authorized personnel only.
(g) Safes and other unusually heavy objects shall be placed by
Lessee only in such places as may be approved by Lessor.
Any damage caused by overloading the floor or by taking in
or removing any object from the Premises shall be paid by
Lessee. Lessee may not place upon the floor of the
Premises any object whatsoever that weights in excess of
fifty (50) pounds per square foot of floor area covered.
(h) Models, salespersons, or other employees or
representatives of Lessee, shall not model, demonstrate,
display, or show in any manner any products outside of the
Premises without Lessor's prior written consent.
(i) Lessee shall not do or permit anything to be done in or
about the Premises which will in any way obstruct or
interfere with the rights of other tenants of the
Building, or injure or annoy them, or use or allow the
Premises to be used for any improper, immoral, unlawful or
objectional purpose, nor shall Lessee cause, maintain or
permit any nuisance in, on or about the Premises. The
Premises may not be used for timeshare, hotel, or
residential purposes.
(j) Neither Lessee nor its contractors, subcontractors,
agents, laborers, mechanics, or materialmen shall use,
generate, store or dispose of any hazardous waste, toxic
substance, or related materials, including, without
limitation, asbestos and polychlorinated biphenyl ("PCB"),
in or on the Premises, the Building, and the land upon
which the Building is situated.
(k) All plate glass windows and sliding glass doors which face
any corridor shall at all times be and remain totally
clear and unobstructed (except for such identifying signs
as Lessor may approve in writing) so that a full and
obstructed view of the Premises and the corridors beyond,
if applicable, may be had through said plate glass windows
and sliding glass doors. All sliding doors which face any
corridor shall be and remain open and free of obstructions
during all applicable Market Exhibition Periods.
(l) Lessee will conduct its business in the Premises in a
lawful manner in compliance with all governmental laws,
ordinances, regulations, and other requirements, whether
federal, state, or local, applicable to the use of the
Premises and will promptly comply with all governmental
orders and directives applicable to the Lessee's use and
occupancy of the Premises, including, without limitation,
such orders and directives for the correction, prevention,
and abatement of nuisances in or connected with the
Premises, all at Lessee's sole expense.
(m) Lessee will not do any act tending to injure the
reputation of Lessor or to interfere with the operation,
public relations, or promotions of Lessor.
Article VIII
------------
INTEREST OF LESSEE
8.1 SUBORDINATION OF LEASE. The rights of Lessee under this Lease
shall be and are subject and subordinate to any ground leases
for the land on which the Building is located and the lien and
security title of any mortgage or security deed now or
hereafter placed on the Building or the land on which the
Building is located, or any part thereof, and to any renewals,
modifications, extensions, consolidations and replacements
thereof. Although such subordination shall be self-operative,
Lessees shall execute and deliver, upon demand, such further
instruments confirming such subordination as may be requested
by Lessor. In the event any such security deed shall be
foreclosed (whether by judicial foreclosure or by exercise of a
private power of sale), the party foreclosing such security
deed shall have the option (i) of foreclosing subject to this
Lease so that this Lease will in no way be disturbed or
terminated by such foreclosure, whereupon at the request of the
purchaser at the foreclosure sale (or purchaser by deed in lieu
of a foreclosure), Lessee will attorn to such purchaser and
will execute such instruments as may be necessary or
appropriate to evidence such attornment, or (ii) of terminating
this Lease by such foreclosure. Lessee hereby irrevocably
appoints Lessor as attorney-in-fact for Lessee with full power
and authority to execute and deliver in the name of Lessee any
instrument or instruments required by Lessee under this Section
8.1.
8.2 INTEREST CONVEYED. This Lease shall create only the
relationship of lessee and lessor between the parties hereto;
no estate shall pass out of Lessor, and Lessee has only a
usufruct, which is not subject to levy and sale.
Article IX
----------
TRANSFER
9.1 ASSIGNMENT AND SUBLETTING. Lessee may not assign this Lease or
any interest herein or in the Premises or mortgage, pledge,
encumber, hypothecate or otherwise transfer or sublet the
Premises or any part thereof, or permit the use of the Premises
by any party other than Lessee, without the prior written
consent of Lessor. Notwithstanding anything contained herein to
the contrary, in the event Lessee shall sublet a portion of the
Premises to an affiliate company whose predominant business is
in the travel or hospitality industry, Lessor's consent shall
not be unreasonably withheld. This prohibition against
assignment and subletting shall include, without limitation, a
specific prohibition against Lessee permitting any person,
firm, or entity other than Lessee and its employees from
temporarily or permanently licensing, using, or otherwise
operating out of the Premises in any manner whatsoever. For the
purpose of this Section, the term "employee" shall mean a
natural person whose compensation is directly paid and funded
by Lessee and is primarily in the form of wages upon which
Lessee is required to withhold state and federal taxes and
whose job functions, responsibilities, and activities are
exclusively controlled by Lessee. In addition, in the event
that the beneficial owners of Lessee sell, exchange, bequeath,
or otherwise transfer all or any portion of their interest in
Lessee such that after the date hereof forty-nine percent (49%)
or more of the beneficial ownership interest of Lessee is
changed, such change in ownership shall be deemed a transfer of
the Premises for the purposes of this Section, except if ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ is manager in charge of Lessor's accounts and
continues to control the day to day operations of Lessee's
business. Lessor reserves the right to examine Lessee's
business records upon reasonable notice to insure Lessee's
compliance with the provisions of this Section.
Article X
---------
DAMAGE, DESTRUCTION AND CONDEMNATION
10.1 DAMAGE OR DESTRUCTION OF BUILDING. In the event of such
substantial damage to or destruction of the Building by fire or
other casualty that the roof, walls, floors, or other
structural members thereof are damaged or that a substantial
number of the premises in the Building are damaged, but
regardless of whether the Premises of the Lessee are damaged
thereby, then Lessor shall have the option to terminate this
Lease upon written notice to Lessee given within ninety (90)
days of such casualty. If Lessor chooses, in its sole
discretion, so to terminate this Lease, such termination shall
be effective on the day specified in such notice, but not
earlier than thirty (30) days following the date of such
written notice.
10.2 RESTORATION OF PREMISES AND IMPROVEMENTS; ABATEMENT OF RENT.
(a) In the event of any damage to or destruction of the
Premises or the improvements therein by fire or other
casualty, then unless this Lease is terminated by Lessor
pursuant to Section 10.1 above: (i) Lessor shall promptly
take appropriate action to repair and restore a sufficient
portion of the Building to permit access to and occupancy
of the Premises by Lessee and to restore the Premises to
bare wall condition, including all improvements described
in Section 4.1(a) herein; and (ii) Lessee shall promptly
repair, replace, or restore the improvements in the
Premises to a condition comparable to that existing prior
to the casualty at Lessee's sole cost and expense without
contribution or reimbursement by Lessor, except that any
insurance proceeds applicable to such improvements which
are paid to Lessor, pursuant to the loss payee provisions
of insurance coverage required of Lessee under Section
6.1, shall be distributed to Lessee after completion of
such improvements for the purpose of reimbursing Lessee
for such repairs and restoration. If any improvements to
the Premises are damaged or destroyed at any time and not
subsequently replaced, restored, or repaired by Lessee,
the entire amount of the proceeds of any insurance
thereon, including, without limitation, the insurance
required to be maintained by Lessee pursuant to Section
6.1 herein, shall be paid to and retained by Lessor.
(b) In the event that the Premises are rendered untenantable
as a result of fire or other casualty and this Lease
remains in force, then commencing on the date of such
casualty, Base Rent shall ▇▇▇▇▇ in proportion to the area
of the Premises which is untenantable until the date the
Premises are restored, provided, however, that if Lessee
unreasonably delays in its obligation to restore the
improvements to the Premises, as required by Section
10.2(a)(ii) herein, then the Base Rent abatement period
shall terminate on the date the Premises would have been
tenantable had Lessee not so unreasonably delayed.
10.3 CONDEMNATION.
(a) If the whole of the Building or the Premises should be
permanently 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
(hereinafter referred to as "Condemnation"), this Lease
shall terminate effective when the physical taking of said
Building or Premises shall occur. If any substantial part
of the Building or the Premises should be permanently
taken by Condemnation, at the option of Lessor this Lease
shall terminate, effective when the physical taking of
said portion of the Building or Premises shall occur. In
the event that a Condemnation of a portion of the Building
or Premises shall occur and this Lease shall not be
terminated by Lessor as aforesaid: (i) Lessor shall
promptly, upon receipt of the Condemnation proceeds, take
appropriate action to repair or restore a sufficient
portion of the Building to permit access to and occupancy
of the Premises by Lessee and to restore the Premises to
bare wall condition, including all the improvements
described in Section 4.1(a) herein; and (ii) Lessee shall
promptly repair, replace, and restore any damaged or
removed improvements to the Premises to a condition
comparable to that existing prior to the Condemnation at
Lessee's sole cost and expense without contribution or
reimbursement by Lessor, except as provided in Section
10.3(c).
(b) In the event that a portion of the Premises are taken by
Condemnation but this Lease is not terminated by Lessor,
then, effective when the physical taking of said Premises
shall occur, the Base Rent payable under this Lease during
the unexpired portion of the Lease Term shall be reduced
by a proportion which the untenantable portion of the
Premises bears to the tenantable portion of the Premises.
(c) All proceeds of any Condemnation, including proceeds
attributable to the improvement to the Premises, shall be
paid to Lessor. In the event that Lessee is required to
repair, replace, or restore the improvements to the
Premises in accordance with this Lease, Lessor shall
distribute to Lessee after completion of such improvements
that portion of the Condemnation proceeds applicable to
such improvements, provided, however, that in the event
Lessee fails to repair, replace, or restore such
improvements within a reasonable period of time, then that
portion of the Condemnation proceeds applicable to such
improvements shall be retained by Lessor and Lessee shall
be in default hereunder.
Article XI
----------
DEFAULT
11.1 EVENTS OF DEFAULT. The occurrence or any of the following
shall constitute an "Event of Default" hereunder:
(i) Failure by Lessee to pay in full any Base Rent,
Additional Rent or other charge payable hereunder
within ten (10) days from the date due, and after
ten (10) days' written notice, which notice shall
only be provided once during each calendar year
during the Lease Term;
(ii) Failure by Lessee to abide by the terms of Section
7.1, 8.1 or 9.1;
(iii) Failure by Lessee to observe or perform any of the
terms, covenants, agreements, or conditions
contained in this Lease (other than as specified
elsewhere in this Section) or in the Building
Manual (and any additional rules and regulations
now or hereafter established by Lessor to govern
the operation of the Building) for a period of
thirty (30) days after written notice thereof by
Lessor;
(iv) Filing by Lessee of a voluntary petition in
bankruptcy or a voluntary petition or answer
seeking reorganization, arrangement, readjustment
of its debts, or for any other relief under the
provisions of the United States Code relating to
Bankruptcy, as amended (hereinafter referred to as
the "Bankruptcy Code"), or under any other
insolvency act or law, state or federal, now or
hereafter existing; the application by Lessee for
the appointment of a receiver or trustee for all or
a substantial part of Lessee's property; the making
by Lessee of any assignment for the benefit of its
creditors; the insolvency or inability of Lessee to
pay its debts as they mature; or the issuance of
attachment, execution, or other similar process
against any substantial part of the property of
Lessee;
(v) The continuation for a period of sixty (60) days
undismissed, unbonded, or undischarged of any
involuntary proceeding against Lessee in bankruptcy
or seeking reorganization, arrangement,
readjustment of its debts, or for any other relief
under the Bankruptcy Code or under any other
insolvency act or law, state or federal, now or
hereafter existing, or of any involuntary
appointment of a receiver or trustee of Lessee, for
all or a substantial part of its property;
(vi) The desertion, vacation, or abandonment of the
Premises, or the failure of Lessee to observe the
provisions of Section 6.9 hereof more than two (2)
times during the Lease Term; or
(vii) Default by Lessee or any Lessee affiliate of any
other lease agreement between Lessee or any Lessee
affiliate and Lessor for any premises in the
Building. As used therein, "Lessee affiliate" shall
mean any sole proprietorship, partnership,
corporation, joint venture, or other business
association in which Lessee is a beneficial owner
or active participant.
11.2 RIGHTS OF LESSOR UPON EVENTS OF DEFAULT.
(a) At any time after the occurrence or existence of any Event
of Default, Lessor, at its option and without prejudice to
any other rights arising from such default which Lessor
may have under this Lease or which may be allowed at law
or in equity, shall have the right to:
(i) remove, in any manner not prohibited by law, Lessee
and any or all property of Lessee from the Premises
and repossess the Premises and all improvements
therein, without terminating the Lease; in which
event the rights and obligations of Lessor and
Lessee under this Lease shall be hereinafter
provided in this Article XI;
(ii) regardless of whether or not Lessor has previously
exercised its rights pursuant to subparagraph (i)
above, terminate this Lease upon written notice to
Lessee, which notice will specify the date upon
which this Lease shall terminate;
(iii) following repossession of the Premises by Lessor,
regardless of whether this Lease has been
terminated by Lessor, from time to time, to re-let
the premises or any part thereof, or to re-let the
Premises or any part thereof together with
additional premises, for such term or terms (which
may be greater or less than the original Lease Term
herein specified) and on such conditions (which may
include concessions, free rent, or alterations of
the Premises) and for such uses as Lessor, in
Lessor's sole discretion, may determine, whereupon
Lessor may collect and receive all rent paid
pursuant to such re-letting. Lessor shall in no way
be responsible or liable for any failure to re-let
the Premises or any part thereof or for any failure
to collect any Rent due upon such re-letting. Any
such sums from such re-letting collected by Lessor
prior to termination of this Lease, net of all
costs incurred by Lessor in connection with such
re-letting, shall be collected by Lessor as agent
of Lessee and applied by Lessor against the sums
due and owing by Lessee to Lessor pursuant to this
Lease. Should such rentals and other payments
received from such re-letting during any month be
less than the amount of Rent and other charges
payable by Lessee for such month hereunder, then
Lessee shall pay such deficiency to Lessor. Such
deficiency shall be calculated and paid monthly;
(iv) if Lessee shall fail to pay any sum of money, other
than Rent, required to be paid by it hereunder or
shall fail to perform any other act on its part to
be performed hereunder and if such failure shall
continue for thirty (30) days after notice thereof
by Lessor, Lessor may (but shall not be obligated
so to do) without waiving or releasing Lessee from
any obligations of Lessee, make any such payment or
perform any such other act on Lessee's part to be
made or performed as provided in this Lease. All
sums so paid by Lessor and all necessary incidental
costs shall be deemed Additional Rent hereunder and
shall be payable to Lessor on demand; and/or
(v) in the event of any breach or threatened breach by
Lessee of any of the agreements, terms, covenants,
or conditions contained in this Lease, Lessor shall
be entitled to enjoin such breach or threatened
breach and shall have the right to invoke any
rights and/or remedies allowed at law or in equity
or by statute or otherwise as though re-entry,
summary proceedings, and other remedies were not
provided for in this Lease.
(b) Upon the occurrence or existence of an Event of Default,
neither the removal of Lessee or any property of Lessee
from the Premises nor the re-entry, repair, alteration, or
re-letting of the Premises by Lessor shall constitute a
termination of this Lease or a surrender of acceptance of
the Premises, unless and until Lessor has given to Lessee
the written notice hereinabove described expressly
terminating this Lease.
(c) No vacancy or abandonment of the Premises by Lessee,
repossession of the Premises by Lessor, or re-letting of
the Premises by Lessor shall relieve Lessee of Lessee's
liability and obligations under this Lease. Termination of
this Lease by Lessor upon the occurrence of existence of
an Event of Default shall likewise not relieve Lessee of
its liability for damages for Lessee's breach of its
obligations under this Lease, and upon termination Lessor
may, at Lessor's option, elect to accelerate the
difference, if any, between all Rent due under this Lease
from the date of termination through the end of the Lease
Term, and the fair rental value of the Premises (taking
into account, among other factors, the reasonably
anticipated costs and delays occasioned by re-letting the
Premises) through the end of the Lease Term, in which
event all such sums shall become immediately due and
payable by Lessee to Lessor, provided, however, that such
payments shall not constitute a penalty or forfeiture or
liquidated damages, but shall merely constitute payment in
advance of such sums for the remainder of the Lease Term.
In the event of such acceleration by Lessor, the amount
due and payable shall be adjusted to present value at the
date of termination by discounting all payments due after
such date at the then current prime rate of NationsBank,
or any bank or financial institution into which same shall
be merged or consolidated. Such amount shall then accrue
interest until paid at the rate specified in Section 12.6.
The payment by Lessee of such accelerated amounts shall in
no way reduce or diminish any other liability of Lessee to
Lessor for breach of this Lease.
(d) No termination of this Lease shall affect the right of
Lessor to collect any damages occasioned by Lessor as a
result of such termination, including, without limitation,
all unpaid Rent arising hereunder for the period prior to
such termination, and Lessee shall pay to Lessor the
aggregate amount thereof (together with accrued interest
thereon as provided herein) upon the date of termination.
(e) In the event of the occurrence of any Event of Default
(including, without limitation, termination of this Lease
by operation of law), then it is agreed and understood and
the parties contemplate that the damages to Lessor arising
from such breach shall include all expenses incurred by
Lessor in enforcing Lessor's rights hereunder and
recovering, restoring, and re-letting the Premises
(including, without limitation, reasonable brokerage fees
and attorneys' fees in the amount of fifteen percent
(15%)for monetary defaults and in a reasonable amount for
non-monetary defaults), said damages being due and payable
by Lessee immediately upon their being incurred by Lessor.
(f) If Lessor shall not be permitted to terminate this Lease
as hereinabove provided because of the provisions of the
Bankruptcy Code, then Lessee as a debtor in possession or
any trustee for Lessor agrees to assume or reject this
Lease within sixty (60) days after the filing of a
voluntary or involuntary petition in which Lessee is named
as the debtor, and Lessee on behalf of itself and any
trustee agrees not to seek or request any extension or
adjournment of any such application by Lessor with such
Court. In such event, Lessee as a debtor in possession, or
any trustee of lessee, may only assume this Lease if (a)
it cures or provides adequate assurance that it will
promptly cure any default hereunder, (b) it compensates or
provides adequate assurance that Lessee will promptly
compensate Lessor for any actual pecuniary loss to Lessor
from Lessee's defaults, and (c) it provides adequate
assurance of performance during the fully stated Lease
Term hereof of all the terms, covenants, and conditions of
this Lease to be performed by Lessee. In no event after
the assumption of this Lease shall any then existing
default remain uncured for a period in excess of ten (10)
days. Adequate assurance of performance of this Lease, as
set forth hereinabove, shall include, without limitation,
adequate assurance (1) of the source of Rent reserved
hereunder, and (2) that the assumption of this Lease will
not breach any provision hereunder. In the event of a
filing of a petition under the Bankruptcy Code, Lessor
shall have no obligation to provide Lessee with any
services or utilities as herein required unless Lessee
shall have paid and be current in all payments due Lessor
under this Lease.
(g) Each right and remedy provided for in this Lease shall be
cumulative and shall be in addition to every other right
or remedy provided for in this Lease or now or hereafter
existing at law or in equity or by the statute or
otherwise, and the exercise of beginning of the exercise
by Lessor or Lessee of any one or more of such rights or
remedies shall not preclude the simultaneous or later
exercise by the party in question of any or all other of
such rights or remedies.
(h) Lessee waives all homestead rights and exemptions which
Lessee may have under any law with respect to any
obligation owing under this Lease.
11.3 LESSOR'S DEFAULT. In the event of any default by Lessor under
this Lease, Lessee's sole and exclusive remedy shall be an
action for actual damages (Lessee hereby waiving any right of
deduction or setoff against Rent due hereunder, and any claim
for indirect, special or consequential damages). Prior to any
such action, Lessee will give Lessor written notice specifying
such default with particularity, and Lessor shall have sixty
(60) days in which to cure any such default; provided, however,
in the event any such default cannot, with reasonable
diligence, be cured within such sixty-day period, Lessor shall
have additional reasonable period of time as is necessary to
cure such default, so long as Lessor commences such cure within
such sixty-day period, and thereafter diligently prosecutes
such cure to completion.
Article XII
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MISCELLANEOUS PROVISIONS
12.1 TRANSFER BY LESSOR. Lessor shall have the right to assign any
of its rights under this Lease or to transfer all or part of
its interest in the Building, or both, at any time, and from
time to time. In the event of any such assignment or transfer
by Lessor, Lessee agrees to attorn to any such assignee,
successor, or other transferee under all of the terms,
covenants and conditions of this Lease for the balance of the
Lease Term and to execute any acknowledgment of and consent to
such assignment or transfer.
12.2 SCOPE. The terms, covenants, conditions, and agreements
contained herein shall, subject to the provisions herein as to
transfer, apply and bind the heirs, successors, executors,
administrators, and assigns of the parties hereto. "Lessor"
and "Lessee" include male and female, singular and plural,
corporation, partnership, or individual, as may fit the
particular parties. If there be more than one Lessee, the
obligations hereunder imposed shall be joint and several.
12.3 CAPTIONS. The captions used herein are for reference
convenience only, are not part of the Lease, and shall have no
effect upon the construction or interpretation of any part
hereof.
12.4 TIME OF THE ESSENCE. Time is of the essence of this Lease and
each and all of its provisions.
12.5 ENTIRE AGREEMENT. This Lease represents the entire
understanding and agreement between the parties relating to the
subject matter hereof and supersedes and cancels any and all
prior negotiations, agreements, understandings, and inducements
relative thereto. The language in all parts of this Lease shall
in all events be construed as a whole according to its fair
meaning and not strictly for or against either Lessor or
Lessee.
12.6 INTEREST. All sums payable by Lessee to Lessor under this
Lease, if not paid when due, shall accrue interest from their
due date until paid, at a rate equal to the greater of (a) the
prime interest rate announced by NationBank, Atlanta, Georgia,
from time to time, plus four percent (4%), or (b) twelve and
one-half percent (12 1/2%). Said interest shall be Additional
Rent under this Lease and be paid to Lessor by Lessee upon
demand.
12.7 ATTORNEY'S FEES. If either party uses the services of an
attorney at law to enforce the terms thereof, or to collect any
amount due hereunder, the defaulting party shall reimburse to
the non-defaulting party, upon demand, any and all reasonable
attorney's fees and expenses so incurred by the non-defaulting
party.
12.8 GOVERNING LAW. This Lease shall in all respects be interpreted
in accordance with the laws of the State of Georgia.
12.9 COUNTERPARTS. This Lease may be executed in counterparts, each
of which when fully executed shall be deemed an original and
all of which shall be but one agreement. In the event of any
such counterparts, the original or copy thereof held by Lessor,
including all exhibits thereto, shall control.
12.10 SEVERABILITY. If any term, covenant, or condition of this
Lease, or the application thereof to any person or
circumstance, shall to any extent be invalid or unenforceable,
neither the remainder of this Lease nor the application of such
term, covenant, or condition to any other person or
circumstance shall be affected thereby, and each term,
covenant, or condition of this Lease shall be valid and
enforceable to the fullest extent permitted by law.
12.11 SURVIVAL. It is expressly understood and agreed that each and
every term, covenant, and agreement contained herein shall
survive any expiration or sooner termination of this Lease and
shall remain in full force and effect as between Lessee and
Lessor, to the extent that any such term, covenant, or
agreement: (i) has not been fully performed in accordance with
this Lease prior to such expiration or sooner termination; or
(ii) contemplates performance by either party hereto subsequent
to such expiration or sooner termination.
12.12 NOTICES. All notices and demands which may be or are required
to be given by either party to the other hereunder shall be
deemed to have been fully given when made in writing and
delivered personally or postmarked by the United States Post
Office by certified or registered mail, return receipt
requested, postage prepaid, and addressed as set forth in the
BLI, or to such other single place as such party may from time
to time designate in writing to the other party. Any notice
shall be deemed to have been received on the date personally
delivered or on (a) the date set forth on the Return Receipt;
(b) the date of delivery as shown on the Post Office records,
(c) the date delivery was refused as shown on the Post Office
records, or (d) the date delivery was unable to be made because
of an address change for which no notice was given.
12.13 MODIFICATION OF LEASE, WAIVER. The terms, covenants and
conditions of this Lease may not be waived, changed or amended
orally but only by an instrument in writing signed by the party
against whom enforcement of the waiver or change is sought.
Neither the failure of either party hereto to insist in any one
or more cases upon the strict performance of any agreement,
term, covenant or condition of this Lease to be performed or
observed by the other party hereto or to exercise any right or
remedy consequent upon a breach thereof, nor the acceptance by
Lessor of full or partial Rent during the continuance of any
Event of Default by Lessee shall constitute a waiver or
relinquishment for the future of any such agreement, term,
covenant, condition, right, remedy or default. No waiver of any
default shall affect or alter this Agreement, but each and
every agreement, term, covenant and condition hereof shall
continue in full force and effect with respect to any other
then existing or any subsequent default.
12.14 RELEASE. Lessee agrees that Lessor shall not at any time or to
any extent whatsoever be liable, responsible, or accountable
for, and Lessee hereby releases Lessor and waives all claims of
Lessee, its successors and assigns against Lessor for: (i) any
injury or damage to person, property, or business, whether
direct or indirect, caused by or arising out of the condition
of the Premises or the Building, the condition or operation of
or defects in any equipment, machinery, or utility systems
located therein, including without limitation the interruption
or stoppage of electrical, escalator or elevator service or the
supply of conditioned air, or the act or omission of any person
or persons, except to the extent such damage or injury is
directly caused by or due to the gross negligence or willful
misconduct of Lessor, its employees or its agents acting within
the scope of their employment or agency; (ii) the theft,
mysterious disappearance, or loss of any property from the
Premises or the Building, unless such theft, disappearance or
loss is solely due to the gross negligence of intentional
misconduct of Lessor, its employees or agents acting within the
scope of their employment or agency; (iii) any interference or
disturbance by third persons, including, without limitation,
any other lessee or lessees of the Building, or the non-
compliance by any other such lessee of any other lease or of
any rules and regulations established by Lessor, and it is
further agreed that the happening of any one or more of the
events described in the immediately preceding clauses (i),
(ii), or (iii) shall not be an actual or constructive eviction
of Lessee, and no such event shall operate to relieve Lessee
from the payment of Rent or the prompt and punctual performance
of the terms and conditions of this Lease.
12.15 SURRENDER OF POSSESSION. Upon the expiration or sooner
termination of this Lease, or upon the election of Lessor
pursuant to Section 11.2, Lessee shall at once quietly and
peacefully surrender the Premises and all improvements therein
to Lessor. Lessee shall remove all rubbish, debris, personal
property, including merchandise and unattached display
fixtures, from the Premises prior to such time, and, if not so
removed, such personal property shall become the property of
Lessor, or, at Lessor's option may be removed and stored at
Lessee's expense. Upon the written request of Lessor, Lessee
shall also remove such of the Improvements as Lessor, in its
sole discretion, may designate and shall restore the damage to
the Premises or the Building occasioned by such removal,
whereupon all remaining Improvements shall become the sole
property of Lessor. If Lessee shall fail to return peacefully
the Premises to Lessor or to remove any Improvements designated
by Lessor, Lessor may, without prejudice to any other remedy
Lessor may have for possession or otherwise, enter upon the
Premises and repossess itself thereof by any lawful means and
thereupon dispossess Lessee and expel or remove Lessee and all
other persons and property from the Premises and remove such
Improvements at Lessee's expense.
12.16 CORPORATE AUTHORITY. If Lessee signs this Lease as a
corporation, each person executing this Lease on behalf of
Lessee does hereby covenant and warrant that Lessee is a duly
authorized and existing corporation, that Lessee has and is
qualified to do business in the State of Georgia, that this
corporation has full power and authority to enter into this
Lease, and that each and every person who signs on behalf of
the corporation is authorized to do so.
12.17 LESSOR'S LIABILITY. The term "Lessor" as used in this Lease
shall be limited to and mean only the owner or owners of the
Lessor's interest in this Lease at the time in question, and in
the event of any transfer or transfers of such interest by the
Lessor, or by any entity which comprises the Lessor, the Lessor
named herein (and in case of any subsequent transfer, the then
transferor), shall be automatically freed and relieved from and
after the date of such transfer of all personal liability with
respect to the performance of any covenants or agreements on
the part of the Lessor contained in this Lease thereafter to be
performed, provided that any funds in the hands of such Lessor
(or the then transferor at the time of such transfer) in which
the Lessee has an interest shall be turned over to the
transferee, and upon any such transfer, the transferee shall be
deemed to have assumed, subject to the limitations of this
Section, all of the covenants, agreements and conditions
contained in this Lease to be performed on the part of the
Lessor, it being intended hereby that the covenants and
agreements contained in this Lease on the part of the Lessor to
be performed shall, subject as aforesaid, be binding on the
Lessor, its successors and assigns, and on any entity which
comprises Lessor, only during and in respect to their
respective periods of ownership, either as Lessor or as an
entity which comprises Lessor. Neither Lessor, nor any officer,
director, shareholder, or partner of Lessor, shall have any
personal liability whatsoever with respect to this Lease,
Lessee agreeing that any claim by Lessee or judgment of Lessee
against Lessor shall be confined to and satisfied only out of,
and only to the extent of, Lessor's interest in the Building.
12.18 SPECIAL STIPULATIONS. Insofar as the special stipulations set
forth in the BLI conflict with any of the foregoing provisions,
the special stipulations shall control.
Exhibit "A"
AMERICASMART
ATLANTA
22ND FLOOR MAP
Floor plan of AmericasMart Atlanta, 22nd Floor offices.
Exhibit "B"
INSTALLMENT PROMISSORY NOTE
$50,000.00 April 17, 1998
For and in consideration of value received, the receipt of which is
hereby acknowledged, DESTINATION, INC. (hereinafter referred to as
"Maker"), promises to pay to the order of AMC, INC. (together with any
subsequent holder of the note, hereinafter referred to as "Holder"),
the sum of Fifty thousand and no/100 dollars ($50,000.00), together
with interest thereon from the date hereof at the effective rate of
seven and one-half percent(7.5%). Such amount shall be due and payable
as follows:
48 consecutive monthly installments commencing on May 1, 1998
and continuing thereafter on or before the first day of each
successive month until paid in full. Each installment shall be
made in the sum of One thousand two hundred eight and 95/100
dollars ($1,208.95). This note shall be paid to Holder at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Collections Department.
Should Maker fail to make any payment when due, or if Maker shall file
a voluntary petition of bankruptcy, be adjudicated as bankrupt or
insolvent, file any petition or answer seeking or acquiescing in any
reorganization, arrangement, readjustment or similar relief for Maker
under any Federal, State or other statute relating to bankruptcy,
insolvency or other similar relief for debtors, or should Maker make a
general assignment for the benefit of creditors, or should Maker be
deemed in default under the terms and conditions of that certain Lease
dated April 17, 1998 (the "Lease"), Holder, at its option, shall be
entitled to accelerate all the indebtedness evidenced by this
Installment Promissory Note, without notice, together with all costs
of collection, including fifteen percent (15%) of attorney's fees if
collected by law or through an attorney at law, and together with
fifteen percent (15%) interest on the unpaid balance of principal
until paid. Failure to exercise this option shall not constitute a
waiver of the right to exercise it in the event of any subsequent
defaults. Notwithstanding anything contained hereunder to the
contrary, prior to the exercise of any remedies hereunder, holder
agrees to provide Maker any rights to cure afforded Lessee pursuant to
the terms of the Lease.
Notwithstanding anything to the contrary contained herein, in the
event the agreement between Destination, Inc. and AMC, Inc. dated
April 17, 1998 (the "Agreement") is terminated, and/or the Lease is
terminated (and such respective termination is not due to any monetary
default(s) by Maker under the Lease or any monetary default(s) by
Maker under the Agreement), then Maker's obligation to pay any and all
sums due after the date Maker vacates the Premises demised under the
Lease shall be null and void, and this Note shall be deemed satisfied.
Time is of the essence with respect to this Installment Promissory
Note, and except as otherwise provided herein, demand, protest, notice
of demand and non-payment and all other notices whatsoever, are hereby
waived by Maker.
Maker reserves the right at any time to pay any part or all of the
then remaining balance due with no penalty of prepayment.
This Installment Promissory Note shall be governed by and construed in
accordance with the laws of the State of Georgia.
IN WITNESS WHEREOF, Maker has caused this Installment Promissory Note
to be executed on the day and year first above written.
MAKER: DESTINATION, INC.
-----------------
By:
-----------------------------
Its: President
Exhibit "C"
Construction improvement plans of Atlanta Merchandise Mart, including
general notes and legends, demolition plan, partition plan, electrical
plans, reflected ceiling plans and furniture plan.
