LEASE AGREEMENT
THIS LEASE AGREEMENT made and entered into as of the 30th day
of June, 1993, by and between DONALD C. MARTIN (hereinafter
referred to as the "Lessor"), and ELECTRICAL DISTRIBUTORS, INC.
(hereinafter referred to as the "Lessee").
W I T N E S S E T H :
WHEREAS, Lessor desires to lease certain property to Lessee;
and
WHEREAS, Lessee desires to lease such property;
NOW, THEREFORE, in consideration of the premises and the
mutual promises and agreements hereinafter contained, the parties
do hereby agree as follows:
ARTICLE I
PROPERTY. Lessor agrees to lease and demise unto Lessee
certain property, known as 5180 Peachtree Road, Atlanta, Georgia
30341, as described on Exhibit "A" hereto (hereinafter referred to
as the "Property").
ARTICLE II
LEASE TERM. The term of this Lease Agreement shall be for a
period of five (5) years commencing on July 1, 1993, and ending on
June 30, 1998, both dates inclusive, unless sooner terminated as
herein provided. In no event shall there be any renewal of this
Lease by operation of law, and if Lessee remains in possession of
the Property after the termination of this Lease and without a new
lease executed by Lessor and Lessee, but with the acquiescence of
Lessor, Lessee shall be deemed to be occupying the Property under
a month-to-month periodic tenancy at an amount to be agreed upon by
the parties hereto, and in no event less than the then-current Rent
as hereinafter provided, and otherwise subject to all the covenants
and provisions of this Lease insofar as the same are applicable to
a month-to-month periodic tenancy. Lessor and Lessee agree that
any such periodic tenancy may be terminated by thirty (30) days
prior written notice by either party to this Lease to the other
party. If Lessee remains in possession after termination of this
Lease without Lessor's acquiescence or consent, Lessee thereupon
shall be deemed a tenant-at-sufferance and may be evicted at once
without notice.
ARTICLE III
3.1 RENT. From July 1, 1993 through and including June 30,
1995, Lessee agrees to pay Lessor without demand, deduction or set-
off as rental $3.25 per square foot per year (32,780 square feet x
$3.25 = $106,535.00 annually, $8,877.92 monthly), in advance, on
the first (1st) day of each calendar month during the Lease Term.
From July 1, 1995, through and including June 30, 1998, Lessee
agrees to pay Lessor without demand, deduction or set-off as rental
$3.75 per square foot per year (32,780 square feet x $3.75 =
$122,925.00 annually, $10,243.75 monthly), in advance, on the first
(1st) day of each calendar month during the Lease Term. Lessee
shall pay to Lessor all rent and all other charges due and owing by
Lessee under this Lease without deduction or set-off, in legal
tender, and at Lessor's address specified in Section 14.7 or as
otherwise directed from time to time by Lessor's notice.
3.2 ADDITIONAL RENT. Lessee shall pay to Lessor in addition
to all rent as herein provided, on or before the dates the same
shall become due and payable, and as additional rent, all taxes,
insurance and general maintenance of the Property, which Lessee
assumes or agrees to pay hereunder, together with all interest and
penalties that may accrue thereon. In the event of non-payment,
Lessor shall have the rights and remedies herein provided for in
the case of non-payment of rent or a breach of condition.
3.3 TAXES AND OTHER CHARGES. Lessee shall, without notice or
demand, as additional rent, pay and discharge, on or before the
last day on which the same may be paid without penalty, all taxes,
rates and charges, sanitary assessments, and other governmental
impositions and charges of every kind and nature whatsoever, and
each and every installment thereof together with all interest and
penalties thereon, which shall or may during the Lease Term be
levied, assessed or imposed on or become a lien upon or become due
or payable out of or for or by reason of the Property or any part
thereof, the Lessee's or the Lessor's interest in the Property and
the improvements located thereon, or any buildings, appurtenances,
or equipment now or hereafter erected or placed thereon or therein
or any part thereof, or the sidewalks or streets in front of or
adjoining the Property including further any rent tax which may now
or hereafter be imposed in addition to or in lieu of real property
ad valorem taxes. All taxes levied, assessed or imposed in
addition to the foregoing shall be paid by Lessee together with all
interest and penalties thereon, under or by virtue of all present
or future laws, ordinances, requirements, orders, directives, rules
or regulations of the federal, state, county and city or local
governments and of all other governmental authorities whatsoever.
Lessee shall pay all taxes and assessments which shall prior to or
during the Lease Term be levied, assessed or imposed on or become
a lien upon the personal property of Lessee located upon the
Property. Lessee shall be deemed to have complied with the
covenants of this Lease if payment of such rents, taxes, sanitary
assessments, and other governmental impositions and charges, shall
have been made within any grace period allowed by law or by the
governmental authority imposing the same during which payment is
permitted without penalty or interest, and either before the same
shall become a lien upon the Property or shall become delinquent.
Lessee shall within ten (10) days after receipt of written request
therefor by Lessor produce and deliver to Lessor reasonably
satisfactory evidence of such payment.
Lessor shall be responsible for the payment of all special
assessments imposed upon the Property.
All such rents, taxes, rates and charges, sanitary
assessments, and other governmental impositions and charges which
become due and are payable in the calendar year in which the Lease
Term expires, shall be apportioned pro rata between Lessor and
Lessee in accordance with the respective portions of such period
during which the Lease Term shall be in effect.
Lessee shall have the right to contest or review by legal
proceedings, or in such other manner as it may deem suitable
(which, if instituted, Lessee shall conduct promptly at its own
expense, and free of any expense to Lessor, and, if necessary, in
the name of Lessor), any tax, assessment, rate or charge, sanitary
assessment, or other governmental imposition or charge
aforementioned.
Nothing herein contained shall be construed to require Lessee
to pay any inheritance, estate, succession, transfer, gift,
franchise, income, income profit or excess profit, capital stock,
capital levy, corporate or unincorporated business tax or other
similar tax, that is or may be imposed upon Lessor, its successors
or assigns, or upon the rent payable by Lessee. In the event any
sales tax shall be due on rent for the Property, then Lessee shall
be responsible for paying and shall pay, when due, any such sales
tax.
ARTICLE IV
COSTS AND EXPENSES OF LESSEE. All costs, expenses and
obligations of every kind, including but not limited to utilities,
repairs and maintenance relating to the Property which may arise or
become due during the term of this Lease, shall be paid by Lessee,
except as designated herein. Lessor shall be responsible for the
payment of major repairs to the roof, the foundation and the
structural walls.
ARTICLE V
COVENANTS OF LESSOR. Lessor covenants and agrees as follows:
A. That Lessor owns the Property in fee simple and has full
right, power and authority to enter into this Lease for the terms
herein granted and that the Property may be used by Lessee during
the entire term of this Lease for the purposes for which it is
currently being used by Lessee.
B. That Lessee, upon the payment of the Rent herein provided
and upon the performance of all the terms of this Lease, shall at
all times during the Lease Term and during any extension or renewal
term, peaceably and quietly enjoy the property without any
disturbance from Lessor or from any other person claiming through
Lessor.
C. That the Property currently conforms and complies with
any and all applicable laws or private restrictions.
D. That Lessor has no knowledge or notice of any pending or
threatened law suits or insolvencies with respect to either Lessor
or the Property.
ARTICLE VI
COVENANTS OF LESSEE. Lessee covenants and agrees as follows:
A. To pay Lessor the Rent herein stipulated at the time and
in the manner herein provided.
B. To take good care of the Property and suffer no waste or
damage and at the end or other expiration of the term of this
Lease, to return the Property in its current condition, normal wear
and tear excepted.
C. To observe and comply with all presently existing State,
City and County ordinances and regulations applicable to the
Property, and all orders and requirements presently imposed by any
other duly constituted governmental authority having jurisdiction
over the Property.
ARTICLE VII
USE.
7.1 LAWFUL PURPOSE. Lessee may use the Property for any
lawful purpose. Lessee shall not use or permit any of the Property
to be used for any unlawful purpose. Lessee shall comply, at its
own expense, with all statutes, regulations, rules, ordinances, and
orders of any governmental body, department, or agency thereof
which apply to or result from Lessee's use or occupancy of the
Property.
7.2 LESSOR'S RIGHT TO ENTER PROPERTY. Lessor and its agents,
employees, and contractors shall have the right to enter the
Property during normal business hours, without undue interference
with the conduct of Lessee's business therein, to inspect and
examine the Property and to exhibit the Property to prospective
purchasers, tenants and lenders. In the event of emergency, or if
otherwise necessary to prevent injury to persons or damage to
property, such entry to the Property may be made by force without
any liability whatsoever on the part of Lessor for damage resulting
from such forcible entry.
ARTICLE VIII
ASSIGNMENT AND SUBLETTING.
8.1 Lessee shall not, without Lessor's prior written consent,
which shall not be unreasonably withheld or delayed: (i) assign,
convey, mortgage, pledge, encumber, or otherwise transfer (whether
voluntarily, by operation of law, or otherwise) this Lease or any
interest under it; (ii) allow any transfer thereof or any lien upon
Lessee's interest by operation of law; (iii) sublet the Property or
any part thereof; or (iv) permit the use or occupancy of the
Property or any part thereof by any one other than Lessee; and any
attempt to consummate any of the foregoing without Lessor's consent
shall be void.
8.2 Notwithstanding anything herein to the contrary, if at
any time or from time to time during the Lease Term, Lessee desires
to sublet all or a part of the Property or assign, convey,
mortgage, pledge, encumber, or otherwise transfer the Lease or any
interest under it, Lessee shall notify Lessor in writing
(hereinafter referred to in this Article VIII as the "Notice") of
the terms of the proposed subletting or assignment, the identity of
the proposed assignee or sublessee, the area proposed to be sublet
(if a sublease is proposed), and such other information as Lessor
may request to evaluate Lessee's request to assign or sublet.
Notwithstanding the provisions of this Article VIII, Lessee may
sublet or assign, convey, mortgage, pledge, encumber, or otherwise
transfer the Lease or any interest under it, to its parent
corporation or to an affiliate or subsidiary corporation of which
such parent corporation owns the majority of the shares of common
and preferred stock without Lessor's prior written consent or
approval. In such event, Lessee shall notify Lessor, in writing,
of such an assignment or sublease, conveyance, mortgage, pledge,
encumbrance, or other transfer prior to the commencement of the
term of such assignment or sublease.
8.3 Within twenty (20) days of Lessor's receipt of the
proposed assignment or sublease, conveyance, mortgage, pledge,
encumbrance, or other transfer, and such requested additional
information, Lessor shall approve or disapprove in writing the
terms of the proposed assignment or sublease, conveyance, mortgage,
pledge, encumbrance, or other transfer, and the proposed assignee
or sublessee or other party thereto. Failure to so approve or
disapprove shall be deemed approval by Lessor. If a fully executed
counterpart of such assignment or sublease, conveyance, mortgage,
pledge, encumbrance, or other transfer is not delivered to Lessor
within forty-five (45) days after the date of Lessor's written
approval, then Lessor's approval of same shall be deemed null and
void and Lessee shall again comply with all the conditions of this
Section 8.3 as if the Notice and options hereinabove referred to
had not been given and received.
8.4 Lessee agrees to pay, as additional rental, to Lessor, on
demand, reasonable costs incurred by Lessor in connection with any
request by Lessee for Lessor to consent to any of the transactions
contemplated by this Article VIII by Lessee.
8.5 If, with the consent of Lessor, this Lease is assigned or
the Property or any part thereof is sublet or occupied by anybody
other than Lessee, Lessor may, after default by Lessee, collect
rent from the assignee, subtenant or occupant, and apply the net
amount collected to the Rent, but no such assignment, subletting,
occupancy, or collection shall be deemed (i) a waiver of any of
Lessee's covenants contained in this Lease, (ii) the acceptance by
Lessor of the assignee, subtenant, or occupant as Lessee, or (iii)
the release of Lessee from further performance by Lessee of its
covenants under this Lease.
ARTICLE IX
EMINENT DOMAIN.
9.1 If all or any substantial part of the Property, including
but not limited to ten (10) percent of the parking, access,
building or signage, should be taken for any public or quasi-public
use under governmental law, ordinance, or regulation, or by right
of eminent domain, or by private purchase in lieu thereof, and the
taking would prevent or materially interfere with the use of the
Property for the purpose for which it is then being used, this
Lease shall terminate effective when the physical taking shall
occur in the same manner as if the date of such taking were the
date originally fixed in this Lease for the expiration of the Lease
Term.
9.2 If part of the Property is taken for any public or quasi-
public use under any governmental law, ordinance, or regulation, or
by right of eminent domain, or by private purchase in lieu thereof,
and this Lease is not terminated as provided in subsection (a)
above, this Lease shall not terminate but the Rent payable
hereunder during the unexpired portion of this Lease shall be
reduced to such extent, if any, as may be fair and reasonable under
all of the circumstances and Lessor shall undertake to restore the
Property to a condition suitable for Lessee's use, as near to the
condition thereof immediately prior to such taking as is reasonably
feasible under all circumstances.
9.3 Lessee shall not share in any condemnation award or
payment in lieu thereof or in any award for damages resulting from
any grade change of adjacent streets, the same being hereby
assigned to Lessor by Lessee; provided, however, that Lessee may
separately claim and receive from the condemning authority, if
legally payable, compensation for Lessee's removal and relocation
costs and for Lessee's loss of business and/or business
interruption.
9.4 Notwithstanding anything to the contrary contained in
this Article 9, if during the Lease Term the use or occupancy of
any part of the Property shall be taken or appropriated temporarily
for any public or quasi-public use under any governmental law,
ordinance, or regulation, or by right of eminent domain, this Lease
shall be and remain unaffected by such taking or appropriation and
Lessee shall continue to pay in full all rental payable hereunder
by Lessee during the Lease Term. In the event of any such
temporary appropriation or taking, Lessee shall be entitled to
receive that portion of any award which represents compensation for
the loss of use or occupancy of the Property during the Lease Term,
and Lessor shall be entitled to receive that portion of any award
which represents the cost of restoration and compensation for the
loss of use or occupancy of the Property after the end of the term
of this Term Lease.
ARTICLE X
INSURANCE.
10.1 Lessee shall carry fire and extended coverage insurance
insuring Lessee's interest in its improvements and betterments to
the Property and any and all furniture, equipment, supplies, and
other property owned, leased, held, or possessed by it and
contained therein, such insurance coverage to be in an amount equal
to the full insurable value of such improvements and property.
Lessee may, in the alternative, elect to self-insure the Property
in whole or in part, provided such self-insurance, along with any
and all additional third-party insurance shall equal the full
insurable value of the Property.
10.2 Lessee also agrees to carry a policy or policies of
comprehensive general liability insurance, including personal
injury and property damage, with contractual liability endorsement,
in the amount of One Million Dollars ($1,000,000.00) for property
damage and One Million Dollars ($1,000,000.00) per occurrence for
personal injuries or deaths of persons occurring in or about the
Property. Said policies shall: (i) name Lessor as an additional
insured and insure Lessor's contingent liability under this Lease,
(ii) be issued by an insurance company which is acceptable to
Lessor and licensed to do business in the State of Georgia, and
(iii) provide that said insurance shall not be canceled unless
thirty (30) days prior written notice shall have been given to
Lessor. Certificates of insurance shall be delivered to Lessor by
Lessee upon commencement of the term of the Lease and upon each
renewal of said insurance. Lessee may, in the alternative, elect
to self-insure the Property, in whole or in part, provided such
self-insurance, along with any and all additional third-party
insurance shall equal One Million Dollars ($1,000,000.00).
10.3 Lessee shall obtain from its insurers under all policies
of fire, theft, public liability, worker's compensation, and other
insurance maintained by it at any time during the Lease Term
insuring or covering the Property or any portion thereof or
operations therein, and shall in good faith endeavor to obtain a
waiver of all rights of subrogation which the insurer might have
against Lessor, if obtainable.
ARTICLE XI
INDEMNITY. Lessee agrees to indemnify and hold Lessor
harmless from and defend Lessor against any and all claims or
liability for any injury or death to any person or damage to any
property whatsoever:
A. occurring in, on or about the Property, to the extent such
injury, death or damage shall be caused in part or in whole by the
act, neglect or fault of, or omission of any duty with respect to
the same, by Lessee, its agents, employees, contractors, invitees,
licensees or tenants;
B. arising from any work or thing whatsoever done by or
benefiting the Lessee in or about the Property or from transactions
of the Lessee concerning the Property;
C. arising from any breach or event of default on the part of
the Lessee in the performance of any covenant or agreement on the
part of the Lessee to be performed pursuant to the terms of this
Lease; or
D. otherwise arising from any act or neglect of the Lessee,
or any of its agents, employees, contractors, invitees, licensees
or tenants.
ARTICLE XII
12.1 LIABILITY OF LESSOR. Lessor shall not be liable to
Lessee or to any person, firm, corporation, or other business
association claiming by, through or under Lessee, for any defects
known to Lessee in the Property; nor for the theft, mysterious
disappearance, or loss of any property of Lessee from the Property.
Lessor shall not be liable for any interference, disturbance, or
act caused by any person other than Lessor, nor shall Lessee be
relieved from any obligation herein because of such interference,
disturbance, or act of any person other than Lessor.
12.2 LIMITATION OF LIABILITY. Lessor's obligations and
liability with respect to this Lease shall be limited solely to
Lessor's interest in the Property, as such interest is constituted
from time to time, and Lessor shall not have any personal liability
whatsoever with respect to this Lease. In any action or proceeding
brought to enforce the obligation of Lessor to Lessee under this
Lease, Lessor and Lessee agree that any final judgment or decree
shall be enforceable against Lessor only to the extent of Lessor's
interest in the Property, as aforesaid, and any such judgment or
decree shall not be capable of execution against, nor be a lien on,
any assets of Lessor other than its interest in the Property, as
aforesaid. Lessor shall maintain a minimum of one million dollars
($1,000,000.00) equity in the Property.
ARTICLE XIII
EVENTS OF DEFAULT AND REMEDIES.
13.1 The occurrence of any of the following shall constitute
an event of default:
(a) The Rent or any other sum of money payable under
this Lease is not paid when due;
(b) Lessee's interest in the Lease or the Property shall
be subjected to any attachment, levy, or sale pursuant to
any order or decree entered against Lessee in any legal
proceeding and such order or decree shall not be vacated
within ninety (90) days of entry thereof; or
(c) Lessee breaches or fails to comply with any term,
provision, condition, or covenant of this Lease, other
than the payment of Rent and any other sum due and
payable hereunder.
13.2 Upon the occurrence of an event of default and, in the
case of an event of default under subsection (a) above, if such
event of default is not cured within five (5) days of receipt of
written demand, and, in the case of an event of default under
subsections (b) or (c) above, if such event of default is not cured
within thirty (30) days after written notice of such event of
default is given by Lessor to Lessee, or such longer period of time
as is reasonably necessary under the circumstances. Lessor shall
have the option to do and perform any one or more of the following
in addition to, and not in limitation of, any other remedy or right
permitted it by law or in equity or by this Lease:
(a) Lessor, with or without terminating this Lease, may
reenter the Property and perform, correct or repair any
condition which shall constitute a failure on Lessee's
part to keep, observe, perform, satisfy, or abide by any
term, condition, covenant, agreement, or obligation of
this Lease, and Lessee shall fully reimburse and
compensate Lessor on demand for all costs and expenses
reasonably incurred by Lessor in such performance,
correction or repairing, including accrued interest as
provided in the next sentence. All sums so expended to
cure Lessee's default shall accrue interest from the date
of demand until date of payment at a rate of interest per
annum equal to the lesser of (i) sixteen percent (16%)
per annum; or (ii) the highest rate permitted by law.
(b) Lessor, with or without terminating this Lease, may
immediately, or at any time thereafter, demand in writing
that Lessee vacate the Property and thereupon Lessee
shall vacate the Property and remove therefrom all
property thereon belonging to or placed on the Property
by, at the direction of, or with consent of Lessor within
ten (10) days of receipt by Lessee of such notice from
Lessor, whereupon Lessor shall have the right to reenter
and take possession of the Property. Any such demand,
reentry and taking possession of the Property by Lessor
shall not of itself constitute an acceptance by Lessor of
a surrender of this Lease or of the Property by Lessee
and shall not of itself constitute a termination of this
Lease by Lessor.
(c) Lessor, with or without terminating this Lease, may
immediately or at any time thereafter relet the Property
or any part thereof for such time or times, at such
rental or rentals and upon such other terms and
conditions as Lessor in its commercially reasonable
discretion may deem advisable, and Lessor may make any
alterations or repairs to the Property which it may deem
necessary or proper to facilitate such reletting; and
Lessee shall pay all costs of such reletting including
but not limited to the cost of any such alterations and
repairs to the Property, attorneys' fees, and brokerage
commissions; and if this Lease shall not have been
terminated, Lessee shall continue to pay all rent and all
other charges due under this Lease up to and including
the date of beginning of payment of rent by any
subsequent tenant of part or all of the Property, and
thereafter Lessee shall pay monthly during the remainder
of the term of this Lease the difference, if any, between
the rent and other charges collected from any such
subsequent tenant or tenants and the rent and other
charges reserved in this Lease, but Lessee shall not be
entitled to receive any excess of any such rents
collected over the rents reserved herein.
(d) Lessor may immediately or at any time thereafter
terminate this Lease, and this Lease shall be deemed to
have been terminated upon receipt by Lessee of written
notice of such termination; upon such termination Lessor
shall recover from Lessee all damages Lessor may suffer
by reason of such termination including, without
limitation, all arrearages in rentals, costs, charges,
additional rentals, and reimbursements, the cost
(including court costs and attorneys' fees) of recovering
possession of the Property, the cost of any alteration of
or repair to the Property which is necessary or proper to
prepare the same for re-letting and, in addition thereto,
Lessor shall have and recover from Lessee an amount equal
to the excess if any, of the total amount of all rents
and other charges to be paid by Lessee for the remainder
of the term of this Lease over the then reasonable rental
value of the Property for the remainder of the term of
this Lease, such excess discounted to present value using
a discount rate equal to six percent (6%).
(e) Lessor shall have a good faith duty to mitigate his
losses hereunder.
13.3 If Lessor re-enters the Property or terminates this Lease
pursuant to any of the provisions of this Lease, Lessee hereby
waives all claims for damages which may be caused by such re-entry
or termination by Lessor. Lessee shall and does hereby agree to
indemnify and hold Lessor harmless from any loss, cost (including
court costs and attorneys' fees), or damages suffered by Lessor by
reason of such re-entry or termination. No such re-entry or
termination shall be considered or construed to be a forcible
entry.
13.4 No course of dealing between Lessor and Lessee or any
failure or delay on the part of Lessor in exercising any rights of
Lessor under this Section 13 or under any other provisions of this
Lease shall operate as a waiver of any rights of Lessor hereunder
or under any other provisions of this Lease, nor shall any waiver
of any event of default on one occasion operate as a waiver of any
subsequent event of default or of any other event of default. No
express waiver shall affect any condition, covenant, rule, or
regulation other than the one specified in such waiver and that one
only for the time and in the manner specifically stated.
13.5 The exercise by Lessor of any one or more of the rights
and remedies provided in this Lease shall not prevent the
subsequent exercise by Lessor of any one or more of the other
rights and remedies herein provided. All remedies provided for in
this Lease are cumulative and may, at the election of Lessor, be
exercised alternatively, successively, or in any other manner and
are in addition to any other rights provided for or allowed by law
or in equity.
ARTICLE XIV
MISCELLANEOUS.
14.1 PRONOUNS. All pronouns and any variations thereof shall
be deemed to refer to the masculine, feminine or neuter, singular
or plural, as the identity of the entity, person or persons may
require.
14.2 INSOLVENCY OR BANKRUPTCY. The appointment of a receiver
to take possession of all or substantially all of the assets of
Lessee, or an assignment of Lessee for the benefit of creditors, or
any action taken or suffered by Lessee under any insolvency,
bankruptcy, or reorganization act, unless terminated or dismissed
within eighty-five (85) days, shall at Lessor's sole option
constitute a breach of this Lease by Lessee. Upon the happening of
any such event or at any time thereafter, this Lease shall
terminate. In no event shall this Lease be assigned or assignable
by operation of law or by voluntary or involuntary bankruptcy
proceedings or otherwise and in no event shall this Lease or any
rights or privileges hereunder be an asset of Lessee under any
bankruptcy, insolvency, or reorganization proceedings.
14.3 LATE PAYMENTS. Lessee shall pay, in the event Rent or
other charge to be paid by Lessee hereunder is not paid when due,
(A) a late fee of five percent (5.0%) of the amount past due, which
late fee Lessee acknowledges is an agreed upon reimbursement to
Lessor for the administrative expense incurred by Lessor as a
result of Lessee's late payment and not a penalty and is reasonable
in light of the difficulty to estimate costs; and (B) interest on
the amount past due (excluding late fees) at a rate per annum equal
to the lesser of (ii) twelve percent (12%) per annum; or (iii) the
highest rate permitted by law, from due date until paid. Should
Lessee make a partial payment of past due amounts, the amount of
such partial payment shall be applied first, to late fees, second,
to accrued but unpaid interest, and third, to past due amounts, in
inverse order of their due date.
14.4 ATTORNEYS' FEES. In the event of any litigation arising
out of this Lease or the relationships evidenced hereby, the
prevailing party shall be entitled to receive from the other party,
an amount equal to the prevailing party's actual attorneys' fees,
reasonably incurred.
14.5 INTENTIONALLY LEFT BLANK
14.6 NO WAIVER OF RIGHTS. No failure or delay of Lessor to
exercise any right or power given it herein or to insist upon
strict compliance by Lessee of any obligation imposed on it herein
and no custom or practice of either party hereto at variance with
any term hereof shall constitute a waiver or a modification of the
terms hereof by Lessor or any right it has herein to demand strict
compliance with the terms hereof by Lessee. No person has or shall
have any authority to waive any provision of this Lease unless such
waiver is expressly made in writing and signed by Lessor.
14.7 ADDRESSES AND NOTICES.
(a) Except for legal process which may also be served as by
law provided or as provided in subsection (b) below, all notices
required or desired to be given with respect to this Lease in order
to be effective shall be in writing and shall be deemed to be given
to and received by the party intended to receive such notice when
hand delivered or three (3) days after such notice shall have been
deposited, postage prepaid, to the United States mail, certified,
return receipt requested, properly addressed to the addresses
specified in item (c) of this Section. In the event of a change of
address by either party, such party shall give written notice
thereof in accordance with the foregoing.
(b) To the extent permitted by law, Lessee hereby: (i)
appoints and designates the Property as a proper place for service
of process upon Lessee (provided, however, Lessor does not hereby
waive the right to serve Lessee with process by any other lawful
means); and (ii) expressly waives the service of any notice under
any existing or future law of the State of Florida applicable to
Lessors and tenants.
(c) Lessor: Donald C. Martin
4570 Henderson Mill Road
Mansfield, Georgia 30341
Lessee: Electrical Distributors, Inc.
5180 Peachtree Road
Atlanta, Georgia 30341
14.8 ENTIRE AGREEMENT AND EXHIBITS. This Lease constitutes
and contains the sole and entire agreement of Lessor and Lessee and
no prior or contemporaneous oral or written representation or
agreement between the parties and affecting the Property shall have
legal effect. No modification or amendment of this Lease shall be
binding upon the parties unless such modification or amendment is
in writing and signed by Lessor and Lessee. The content of each
and every exhibit which is referenced in this Lease as being
attached hereto is incorporated into this Lease as fully as if set
forth in the body of this Lease.
14.9 SUBORDINATION NON-DISTURBANCE AND ATTORNMENT.
(a) Except as provided in subsections (d) and (e) below, this
Lease and all rights of Lessee hereunder are and shall be subject
and subordinate to the lien of any mortgage, deed to secure debt,
deed of trust, or other instrument in the nature thereof which may
now or hereafter affect Lessor's estate or interest in and to the
Property and to any other instrument encumbering the fee title of
the Property and to any modifications, renewals, consolidations,
extensions, or replacements thereof.
(b) Subsection (a) above shall be self-operative, and no
further instrument of subordination shall be required by the holder
of any such instrument affecting or encumbering the Property. In
confirmation of such subordination, Lessee shall, upon demand, at
any time or times, execute, acknowledge, and deliver to Lessor or
the holder of any such mortgage, deed to secure debt, deed of
trust, or other instrument, without expense, any and all
instruments that may be requested by Lessor or such holder to
evidence the subordination of this Lease and all rights hereunder
to the lien of any such mortgage, deed to secure debt, deed of
trust, or other instrument, and each such renewal, modification,
consolidation, replacement, and extension thereof, and if Lessee
shall fail at any time, within ten (10) days following the giving
of a written request therefor, to execute, acknowledge, and deliver
any such instrument, Lessor or such holder or such lessor, in
addition to any other remedies available to it in consequence
thereof, may execute, acknowledge, and deliver the same as the
attorney-in-fact of Lessee and in Lessee's name, place, and stead,
and Lessee hereby irrevocably makes, constitutes, and appoints
Lessor or such holder or such lessor, in their respective
successors and assigns, such attorney-in-fact for that purpose.
(c) Lessee shall, upon demand, at any time or times, execute,
acknowledge, and deliver to Lessor or to the holder of any
mortgage, deed to secure debt, deed of trust, or other instrument
affecting or encumbering the Property, without expense, any and all
instruments that may be necessary to make this Lease superior to
the lien of any such mortgage, deed to secure debt, deed of trust
or other instrument or the grant of any such ground lease, and each
renewal, modification, consolidation, replacement, and extension
thereof, and, if Lessee shall fail at any time, within ten (10)
days following the giving of a written request therefor, to
execute, acknowledge, and deliver any such instrument, Lessor or
such holder or such lessor, in addition to any other remedies
available to it in consequence thereof, may execute, acknowledge,
and deliver the same as the attorney-in-fact of Lessee and in
Lessee's name, place, and stead, and Lessee hereby irrevocably
makes, constitutes, and appoints Lessor or such holder or such
lessor, and their respective successors and assigns, such attorney-
in-fact for that purpose.
(d) If the holder of any mortgage, deed to secure debt, deed
of trust or other instrument affecting or encumbering the Property
shall hereafter succeed to the rights of Lessor under this Lease,
whether through possession or foreclosure action or exercise of
private power of sale or delivery of a new lease, Lessee shall, at
the option of such holder or lessor, attorn to and recognize such
successor as Lessee's Lessor under this Lease as of the date of
such succession to Lessor's interest and shall promptly execute and
deliver any instrument that may be necessary to evidence such
attornment, and Lessee hereby irrevocably appoints Lessor or such
holder or such lessor the attorney-in-fact of Lessee to execute and
deliver such instrument on behalf of Lessee should Lessee refuse
and fail to do so within ten (10) days after Lessor or such holder
or such lessor shall have given notice to Lessee requesting the
execution and delivery of such instrument. Upon such attornment,
this Lease shall continue in full force and effect as a direct
lease between such successor Lessor and Lessee, subject to all of
the terms, covenants, and conditions of this Lease.
(e) Lessor shall obtain from any future holder of any deed to
secure debt encumbering the Property, or from the current holder in
the event of any refinancing or future advance, a non-disturbance
agreement which shall provide that as long as Lessee remains not in
default under this Lease, such holder shall not disturb Lessee's
tenancy.
14.10ESTOPPEL CERTIFICATE. At any time and from time to
time, Lessee, on or before the date specified in a request therefor
made by Lessor, which date shall not be earlier than ten (10) days
from the making of such request, shall execute, acknowledge, and
deliver to Lessor a certificate evidencing whether or not (i) this
Lease is in full force and effect, (ii) this Lease has been amended
in any way, (iii) there are any existing events of default on the
part of Lessor hereunder to the knowledge of Lessee and specifying
the nature such events of default, if any, and (iv) the date to
which rent, and other amounts due hereunder, if any have been paid.
Each certificate delivered pursuant to this Section may be relied
on by any prospective purchaser or transferee of Lessor's interest
hereunder or of any part of Lessor's property or by any mortgagee
of Lessor's interest hereunder or of any part of Lessor's property
or by an assignee of any such mortgagee.
14.11SEVERABILITY. If any clause or provision of this Lease
is or becomes illegal, invalid, or unenforceable because of present
or future laws or any rule or regulation of any governmental body
or entity, effective during its term, the intention of the parties
hereto is that the remaining parts of this Lease shall not be
affected thereby, unless such invalidity is essential to the rights
of either party hereto in which event this Lease shall terminate.
14.12CAPTIONS. The captions used in this Lease are for
convenience only and do not in any way limit or amplify the terms
and provisions hereof.
14.13SUCCESSORS AND ASSIGNS. The words "Lessor" and
"Lessee" as used herein shall include the respective contracting
party, whether singular or plural, and whether an individual,
masculine or feminine, or a partnership, joint venture, business
trust, or corporation. The provisions of this Lease shall inure to
the benefit of and be binding upon Lessor and Lessee, and their
respective successors, heirs, legal representatives, and assigns,
subject, however, in the case of Lessee, to the provisions of
Article VIII hereof.
14.14FORCE MAJEURE. A party to this Lease shall be excused
from the performance of its duties and obligations under this
Lease, except obligations for the payment of money such as Rent,
for the period of delay, but in no event longer than 90 days,
caused by labor disputes, governmental regulations, riots, war,
insurrection, acts of God or other causes beyond the control of the
party whose performance is being excused (but such causes shall not
include insufficiency of funds).
14.15LESSOR'S REPRESENTATIONS. Lessor hereby represents and
warrants that: Lessor is the owner of the Property; there are no
liens, encumbrances or easements affecting the Property except as
described in Exhibit "B" attached hereto; Lessor is in undisputed
and peaceful possession of the Property and has a perfect right to
convey good, fee simple, merchantable title to the Property; there
currently exists adequate access, parking and utility service to
the Property for the purposes anticipated by the parties hereto;
there is no outstanding indebtedness, unpaid bill or lien against
the Property for equipment, appliances, other fixtures attached to
the Property, sewerage, water main, sidewalk or other street
improvements; there are no retention title contracts, bills of sale
or other encumbrances, of record or otherwise, affecting the title
to any personal property installed on the Property; the lines and
corners of the Property are clearly marked, and that there are no
disputes concerning the location of the lines and corners; there
are no pending suits, proceedings, judgments, bankruptcies, liens
or executions against the Lessor, either in the county where the
Property is located or in any other county in the State of Georgia;
no improvements or repairs have been made on the Property during
the ninety-five (95) days immediately preceding this date; and
there are no outstanding bills incurred for labor or materials used
in making improvements or repairs on the Property, for services of
architects, surveyors, engineers, or registered foresters incurred
in connection therewith.
14.16 HAZARDOUS SUBSTANCES.
(a) Lessee hereby covenants that Lessee shall not cause or
permit any "Hazardous Substances" (as hereinafter defined) to be
placed, held, located or disposed of in, on or at the Property or
any part thereof except in full compliance with all applicable
laws, rules, ordinances and similar provisions, and neither the
Property nor any part thereof shall ever be used as a dump site or
storage site (whether permanent or temporary) for any Hazardous
Substances during the Lease Term.
(b) Lessee hereby agrees to indemnify Lessor and hold Lessor
harmless from and against any and all losses, liabilities,
including strict liability, damages, injuries, expenses, including
reasonable attorneys' fees, costs of any settlement or judgment and
claims of any and every kind whatsoever paid, incurred or suffered
by, or asserted against, Lessor by any person or entity or
governmental agency for, with respect to, or as a direct or
indirect result of, the presence on or under, or the escape,
seepage, leakage, spillage, discharge, emission, discharging or
release from, the Property of any Hazardous Substance (including,
without limitation, any losses, liabilities, including strict
liability, damages, injuries, expenses, including reasonable
attorneys' fees, costs of any settlement or judgment or claims
asserted or arising under the Comprehensive Environmental Response,
Compensation and Liability Act, any so-called federal, state or
local "Superfund" or "Superlien" laws, statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to or
imposing liability, including strict liability, substances or
standards of conduct concerning any Hazardous Substance), provided,
however, that the foregoing indemnity is limited to matters arising
solely from Lessee's violation of the covenant contained in
subsection (a) above.
(c) For purposes of this Lease, "Hazardous Substances" shall
mean and include those elements or compounds which are contained in
the list of hazardous substances adopted by the United States
Environmental Protection Agency (the "EPA") or the list of toxic
pollutants designated by Congress or the EPA or which are defined
as hazardous, toxic, pollutant, infectious or radioactive by any
other Federal, state or local statute, law, ordinance, code, rule,
regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning, any hazardous, toxic
or dangerous waste, substance or material, as now or at any time
hereafter in effect.
(d) Lessor shall have the right but not the obligation, and
without limitation of Lessor's rights under this Lease, to enter
onto the Property or to take such other actions as it deems
necessary or advisable to cleanup, remove, resolve or minimize the
impact of, or otherwise deal with, any Hazardous Substance
following receipt of any notice from any person or entity
(including without limitation the EPA) asserting the existence of
any Hazardous Substance in, on or at the Property or any part
thereof which, if true, could result in an order, suit or other
action against Lessee and/or Lessor. All reasonable costs and
expenses incurred by Lessor in the exercise of any such rights,
which costs and expenses result from Lessee's violation of the
covenant contained in subsection (a) above, shall be deemed
additional rental under this Lease and shall be payable by Lessee
upon demand.
(e) Notwithstanding the foregoing, Lessor hereby warrants
that there is no Hazardous Substance affecting the Property and
indemnifies Lessee and holds Lessee harmless from and against any
and all losses, liabilities, including strict liability, damages,
injuries, expenses, including reasonable attorneys' fees, costs of
any settlement or judgment and claims of any and every kind
whatsoever paid, incurred or suffered by, or asserted against,
Lessee by any person or entity or governmental agency for, with
respect to, or as a direct or indirect result of, the presence on
or under, or the escape, seepage, leakage, spillage, discharge,
emission, discharging or release from, the Property of any
Hazardous Substance (including, without limitation, any losses,
liabilities, including strict liability, damages, injuries,
expenses, including reasonable attorneys' fees, costs of any
settlement or judgment or claims asserted or arising under the
Comprehensive Environmental Response, Compensation and Liability
Act, any so-called federal, state or local "Superfund" or
"Superlien" laws, statute, law, ordinance, code, rule, regulation,
order or decree regulating, relating to or imposing liability,
including strict liability, substances or standards of conduct
concerning any Hazardous Substance) prior to the date hereof.
(f) This Section 14.16 shall survive cancellation,
termination or expiration of this Lease.
14.17 APPLICABLE LAW. This Lease shall be construed in
accordance with the laws of the State of Georgia.
ARTICLE XV
RIGHT OF FIRST REFUSAL.
(a) If Lessor makes a bona fide written offer to sell or
lease the Property or any part thereof to any prospective purchaser
or tenant during the term of this Lease or for an additional period
of ninety (90) days thereafter, or should Lessor receive an
acceptable offer to do so, Lessor shall notify Lessee in writing
(such notice being hereinafter called the "Offer Notice") of
Lessor's intention to sell or lease the Property. The Offer Notice
shall specifically describe the terms and the prospective purchaser
or tenant with whom such purchase and sale or lease would be
entered into (unless confidentiality of such prospective purchaser
or tenant is required by such prospective purchaser or tenant).
The Offer Notice shall also constitute an offer by Lessor to sell
or lease the Property to Lessee in accordance with the terms of
this Article XV. Lessee shall have twenty (20) days after its
receipt of such Offer Notice to accept such offer pursuant to this
First Refusal Right and to purchase or lease the Property from
Lessor in accordance with the terms of this Article XV.
(b) Acceptance by Lessee of the offer set forth in the Offer
Notice shall be deemed effective only if such acceptance is given
to Lessor in a written notice of acceptance (the "Acceptance
Notice") specifically referring to the Offer Notice to which it
relates, received by Lessor within the twenty (20) day period
prescribed above for such acceptance. If Lessee duly and timely
delivers to Lessor its Acceptance Notice in accordance with this
Article XV, then Lessor and Lessee shall, within thirty (30) days
of Lessor's receipt of such Acceptance Notice, execute a contract
to purchase and sell or an amendment to this Lease which conforms
to the terms set forth in the Offer Notice.
(c) If Lessee elects not to exercise this First Refusal
Right, Lessor shall be entitled to sell or lease the Property to
the prospective purchaser or tenant that prompted the Offer Notice,
or an affiliate thereof.
(d) Notwithstanding anything in this Article XV the contrary,
Lessee shall have no right to exercise any right or option under
this Article XV, nor shall Lessor have any obligation to submit an
Offer Notice to Lessee with respect to the Property before entering
into a third party contract or lease with respect thereto, or to
enter into any sale or lease of the Property with Lessee, at any
time during which either (i) Lessee is in default, or an event of
default exists with respect to Lessee, under this Lease, or (ii)
this Lease is not in full force and effect.
(e) Nothing in this Article XV shall be deemed to cause an
early termination of this Lease.
ARTICLE XVI
USUFRUCT. This Lease gives Lessee a usufruct only and does
not create an estate in the Lessee subject to lien or to levy and
sale.
IN WITNESS WHEREOF, the undersigned parties have caused this
Lease to be signed and sealed on the day and year first above
written.
LESSOR:
/s/ Donald C. Martin (SEAL)
DONALD C. MARTIN
LESSEE:
ELECTRICAL DISTRIBUTORS, INC.
By: /s/ Donald C. Martin
Title: President
[CORPORATE SEAL]