LEASE AGREEMENT
BETWEEN
XXXX X. XXXXXX, LLC
AS LANDLORD
AND
XXXXXXX FURNITURE COMPANIES, INC.
AS TENANT
XXXXXXX FURNITURE COMPANIES, INC.
SE REGIONAL DISTRIBUTION CENTER
LEASE AGREEMENT
TABLE OF CONTENTS
SECTION PAGE
------- ----
ARTICLE I PREMISES....................................................................................1
ARTICLE II TERM........................................................................................2
ARTICLE III RENTAL......................................................................................2
ARTICLE IV CONSTRUCTION OF IMPROVEMENTS................................................................5
ARTICLE V USE OF LEASED PREMISES......................................................................6
ARTICLE VI UTILITIES...................................................................................6
ARTICLE VII LANDLORD'S DELIVERIES.......................................................................6
ARTICLE VIII LANDLORD'S REPRESENTATIONS AND WARRANTIES...................................................9
ARTICLE IX MAINTENANCE, REPAIRS, AND ALTERATIONS......................................................13
ARTICLE X INDEMNIFICATION............................................................................15
ARTICLE XI WAIVER OF SUBROGATION......................................................................15
ARTICLE XII SIGNS......................................................................................16
ARTICLE XIII ENTRY BY LANDLORD..........................................................................16
ARTICLE XIV INSURANCE..................................................................................16
ARTICLE XV ABANDONMENT................................................................................18
ARTICLE XVI DESTRUCTION................................................................................18
ARTICLE XVII ASSIGNMENT AND SUBLETTING..................................................................19
ARTICLE XVIII INSOLVENCY OF TENANT.......................................................................20
ARTICLE XIX BREACH.....................................................................................20
ARTICLE XX ATTORNEY'S FEES............................................................................22
ARTICLE XXI CONDEMNATION...............................................................................23
ARTICLE XXII NOTICES....................................................................................23
ARTICLE XXIII WAIVER.....................................................................................24
ARTICLE XXIV EFFECT OF HOLDING OVER.....................................................................24
ARTICLE XXV SUBORDINATION..............................................................................24
ARTICLE XXVI ESTOPPEL CERTIFICATE.......................................................................25
ARTICLE XXVII PARKING....................................................................................25
ARTICLE XXVIII BROKERAGE COMMISSIONS......................................................................25
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ARTICLE XXIX TENANT FINANCING AND WAIVER OF LANDLORD'S LIEN.............................................26
ARTICLE XXX DISPUTE RESOLUTION.........................................................................26
ARTICLE XXXI MISCELLANEOUS PROVISIONS...................................................................28
EXHIBITS:
EXHIBIT A......... Legal Description of the Land
EXHIBIT B......... Work Letter Agreement, with Schedules 1-3, as follows:
(i) Schedule 1: Construction Schedule
(ii) Schedule 2: Special Project Conditions
(iii) Schedule 3: Form of Change Order
EXHIBIT C......... Site Plan
EXHIBIT D......... Subordination, Non-Disturbance, Attornment Agreement
EXHIBIT E......... Preliminary Plans and Specifications
EXHIBIT F......... Final Plans and Specifications
EXHIBIT G......... Special Stipulations, with Schedule 1 and 2, as follows:
(i) Schedule 1: Complete and fully executed copy of Jordan Agreement
(ii) Schedule 2: Complete and fully executed copy of Xxxxx Agreement
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XXXXXXX FURNITURE COMPANIES, INC.
S.E. REGIONAL DISTRIBUTION CENTER
THIS LEASE AGREEMENT (hereinafter sometimes referred to as the "Lease")
is made and entered into effective as of the 26th day of July, 2001, by and
between XXXX X. XXXXXX, L.L.C., a Georgia limited liability company (hereinafter
referred to as "Landlord"), and XXXXXXX FURNITURE COMPANIES, INC., a Maryland
corporation (hereinafter referred to as "Tenant");
RECITALS
Landlord desires to design, construct and lease to Tenant a facility
(the "Building") and other improvements, including, without limitation, parking
and paved areas for truck operations, trailer loading and storage, car parking
and loading of cars and trucks (the Building and other improvements are
sometimes referred to collectively as the "Improvements") on property owned by
Landlord, in accordance with the terms and subject to the conditions of this
Lease.
Tenant desires to have constructed and to lease from Landlord the
Improvements in accordance with the terms and subject to the conditions
contained in this Lease.
AGREEMENTS
FOR AND IN CONSIDERATION of the mutual covenants contained in this
Agreement, Landlord and Tenant (sometimes referred to jointly as the "parties")
agree as follows:
ARTICLE I
PREMISES
1.01 The Premises.
Subject to the terms and conditions of this Lease, Landlord
hereby leases to Tenant, and Tenant hereby leases from Landlord the following:
(i) an industrial distribution facility (the "Building") containing
approximately 491,229 square feet of warehouse space and 19,581 square feet of
office/administration space and its related Improvements, to be constructed by
Landlord in accordance with the Work Letter Agreement attached hereto as Exhibit
"B" and incorporated herein by this reference (the "Work Letter Agreement"),
(ii) the land on which the Building and related improvements are to be located
(the "Land") as more particularly described on Exhibit "A" attached hereto and
by this reference incorporated herein, and (iii) all rights, easements and
appurtenances pertaining to the Land, including, but not limited to, rights of
access, ingress and egress at the points shown on the Site Plan attached hereto
as Exhibit "C" and incorporated herein by this reference (the "Site Plan"), in,
to, from and over any and all streets, ways or alleys adjoining, abutting or
adjacent to the Land, and the right to use all parking and trucking areas
located on the Land, all as more particularly shown on the Site Plan. The
Building, related Improvements, Land, and all such rights, easements and
appurtenances thereunto appertaining are sometimes collectively referred to
herein as the "Leased Premises" or the "Premises."
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ARTICLE II
TERM
2.01 Primary Term. TO HAVE AND TO HOLD said Leased Premises for an
initial or primary term commencing on the effective date of this Lease and
terminating on the last day of the month containing the fifteenth (15th)
anniversary of the "Rental Commencement Date" described below. Promptly
following the Rental Commencement Date, Landlord and Tenant shall execute an
instrument in recordable form setting forth the Rental Commencement Date and the
primary term of this Lease.
2.02 Rental Commencement Date. Subject to the exception set forth
in Section 2.03 below, after the Premises are completed and the Certificate of
Occupancy and possession of the Premises are delivered to Tenant in accordance
with the terms of the Work Letter Agreement, but in no event earlier than August
1, 2002 (the "Rental Commencement Date").
2.03 Suspension of Rental Commencement Date. Notwithstanding
anything contained herein to the contrary, if the Rental Commencement Date would
otherwise occur during the period commencing on October 1, 2002, and ending on
January 1, 2003, then the Rental Commencement Date shall not occur and the
rental obligations of Tenant hereunder shall not commence until January 1, 2003.
2.04 Option to Extend. Tenant shall have the right and option to
extend and renew the term of this Lease for five (5) successive renewal periods
of five (5) years each (each an "Extended Term") provided that Tenant gives
written notice to Landlord of its intention to extend the term of this Lease at
least six (6) months prior to the end of the then current term of the Lease.
Extensions shall be upon the same terms and conditions as contained herein,
except that Tenant shall pay the annual Base Rent in the amounts specified in
Section 3.01 below. The primary term and any Extended Term with respect to which
Tenant exercises this option in accordance with this Section 2.04 are
collectively called the "Term."
ARTICLE III
RENTAL
3.01 Base Rent. Commencing on the Rental Commencement Date
described in Section 2.02 above, Tenant agrees to pay to Landlord, without
offset or abatement, except as might otherwise be specifically provided in this
Lease to the contrary, "Base Rent" as set forth below:
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Monthly Base Rent Annual Base Rent
----------------- ----------------
Initial Term:
------------
Years 1-3 $ 153,630.00 $ 1,843,560.00
Years 4-6 $ 177,800.00 $ 2,133,600.00
Years 7-9 $ 189,292.00 $ 2,271,504.00
Years 10-12 $ 199,770.00 $ 2,397,240.00
Years 13-15 $ 211,263.00 $ 2,535,156.00
Option 1:
Years 16-20 101% of Year 15 101% of Year 15
Option 2:
Years 21-25 105% of Year 20 105% of Year 20
Option 3:
Years 26-30 105% of Year 25 105% of Year 25
Option 4:
Years 31-35 105% of Year 30 105% of Year 30
Option 5:
Years 36-40 105% of Year 35 105% of Year 35
Tenant shall pay each monthly installment of Base Rent in advance on
the first day of each month during the Term, with the first installment of Base
Rent being due on the Rental Commencement Date. If the Rental Commencement Date
occurs on a day other than the first day of a calendar month, the Base Rent for
the month in which the Rental Commencement Date occurs will be equal to the
monthly installment amount specified above multiplied by a fraction, the
numerator of which is the number of days in the period between the Rental
Commencement Date and the last day of that month, and the denominator of which
is the total number of days in that month. The term "Lease Year" means the full
twelve (12) calendar month period that begins on the Rental Commencement Date
and ends on the first anniversary of the day preceding the Rental Commencement
Date, if the Rental Commencement Date occurs on the first day of a calendar
month, or on the first anniversary of the last day of the calendar month in
which the Rental Commencement Date occurs, if the Rental Commencement Date
occurs on a day other than the first day of a calendar month whichever is
applicable, and each successive period of twelve (12) calendar months occurring
during the Term after that initial period.
If a termination of this Lease occurs prior to the last day of the Term
(the "Expiration Date") for reasons other than Tenant's default and if the
effective date of termination is other than the last day of a calendar month,
the parties will prorate the Base Rent payable with respect to the calendar
month in which the effective date of termination occurs based on the number of
days in that month, and Landlord shall promptly refund to Tenant, without
demand, setoff or deduction, any previously paid Base Rent attributable to any
period of time following the termination date.
Notwithstanding anything contained herein to the contrary, as provided
in the Work Letter Agreement, in the event the aggregate cost to Landlord to
construct the Improvements increases or
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decreases on account or by reason of the Aggregate Change Order Cost (as
described and defined in the Work Letter Agreement), the Base Rent shall be
proportionately increased or decreased to reflect same.
3.02 Late Fee. Any payment of monthly Base Rent not received by
Landlord by the tenth (10th) day of the month shall bear a late fee of two
percent (2%) of the amount due; provided, however, that said late fee shall not
apply with respect to the first such late payment made in any Lease Year during
the Lease Term.
3.03 Additional Rent. In addition to the Base Rent, Tenant shall
pay all other sums, amounts, liabilities, obligations and charges to which
Tenant assumes, agrees to pay, or is responsible for hereunder, whether
designated as "Additional Rent" or otherwise, promptly at the times and in the
manner herein specified and, except as otherwise specifically provided elsewhere
in this Lease, without deduction, setoff, abatement, counterclaim, or other
defense. Such Additional Rent includes the following:
(a) Landlord's Insurance Premiums. Provided Landlord
shall have complied with its obligations under Section 14.01(a) of this Lease,
Tenant agrees to pay to Landlord the amount of the premiums for the "all risk"
fire and extended coverage insurance on the Building and the time element
insurance required to be carried by Landlord pursuant to said Section 14.01 (a)
and accruing on or after the Rental Commencement Date (the "Insurance
Premiums"). Landlord does hereby notify Tenant, and Tenant does hereby
acknowledge, that Landlord's good faith estimate of Landlord's Insurance
Premiums for the first full calendar year in which the Rental Commencement Date
occurs is $15,000.00. A pro-rata adjustment shall be made with respect to any
payment of Insurance Premiums due from Tenant to Landlord in connection with
both the policy period during which the Rental Commencement Date occurs and the
policy period during which this Lease expires or is terminated.
(b) Real Estate Taxes and Impositions. The term "Real
Estate Taxes" on the Premises shall mean and include all assessments and ad
valorem real estate taxes payable on account of the Improvements and the Land
and accruing on or after the Rental Commencement Date, but shall not include any
special assessments imposed as a result of or in connection with the development
of the Premises, and shall not include any income tax or other like tax which is
measured in any manner by the income of Landlord, including, without limitation,
any municipal, state or federal income or excess profits taxes assessed against
Landlord, or any municipal, state or federal capital levy, estate, succession,
inheritance or transfer taxes of Landlord, or corporation franchise taxes
imposed upon the corporate owner of the fee of the Premises. Landlord agrees to
pay all Real Estate Taxes promptly and before delinquency. Provided Landlord
shall have complied with its obligations under this Section 3.03 (b) and Section
3.04 below, Tenant agrees to pay to Landlord (or, at Tenant's option, directly
to the taxing authority), as "Additional Rent," the net amount (after
recognition of credits and abatements, if any) of all Real Estate Taxes
attributable to any period of time included within the Term (the "Impositions").
With respect to Impositions that may lawfully be paid in installments
over a period of years, with or without interest, the foregoing will not require
Tenant to pay any portion of those installments or interest that become due to
the taxing authority after the Expiration Date. Moreover, with respect to
Impositions levied in respect of any period of time within which either the
Rental Commencement Date or the Expiration Date occurs, Tenant must only pay a
proportionate part of those Impositions, which part will bear the same ratio to
the total amount of those Impositions as the number of days in the period
between the Rental Commencement Date and the end of that period of time or in
the period between the beginning of that period of time and the Expiration Date,
whichever is applicable, bears to the total number of days in that period of
time.
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Tenant shall also pay, prior to delinquency, all taxes assessed against
and levied upon trade fixtures, furnishings, equipment and all personal property
of Tenant contained in the Premises.
3.04 Payment of Additional Rent; Tax Contests. Tenant shall pay the
Impositions and Insurance Premiums to Landlord, at the address set forth in
Article XXII or at such other address as Landlord may from time to time
designate, on an annual basis, but prorated for any partial years, within thirty
(30) days following receipt by Tenant of (a) an invoice for the Impositions for
such period, accompanied by a true and correct copy of the tax xxxx(s)
evidencing the Real Estate Taxes for such period and Landlord's payment in full
thereof, and (b) the receipted xxxx showing payment in full by Landlord of the
Insurance Premiums. Landlord shall retain records of all costs incurred by
Landlord for Real Estate Taxes and Insurance Premiums, and copies of any of said
records shall be made available to Tenant upon request. If Tenant shall request
that Landlord contest the amount or validity of Real Estate Taxes assessed
against the Premises, and Landlord, within thirty (30) days following such
request, does not give notice to Tenant of Landlord's intention to contest such
Real Estate Taxes, Tenant shall have such rights, at its sole cost and expense,
to contest the validity or amount of Real Estate Taxes as are permitted by law,
either in its own name or in the name of Landlord, in either case with
Landlord's full cooperation. In conjunction with any such contest, Landlord
shall make available to Tenant such information as Tenant may reasonably
request, which information may be required by the assessor in connection with a
tax contest.
3.05 "Net" Lease. Notwithstanding anything to the contrary in this
Lease, (a) this Lease shall be deemed and construed to be a completely "net
lease," (b) Tenant shall pay to Landlord through the Lease Term, all Base Rent
when due, free and clear of and without any offset, abatement, counterclaim,
defense or deduction whatsoever, except as specifically provided herein, and (c)
except as otherwise expressly set forth in the Lease to the contrary, beginning
on the Rental Commencement Date, Tenant shall be responsible for paying, during
the Lease Term, all expenses, costs and amounts because of or in connection with
the ownership, operation, management, maintenance, repair, replacement, or
restoration (or any one or more of them) of the Premises.
ARTICLE IV
CONSTRUCTION OF IMPROVEMENTS
4.01 Work Letter Agreement. Landlord and Tenant acknowledge and
agree that the Building and Improvements shall be constructed in accordance with
the Work Letter Agreement.
4.02 Construction Risks. Nothing contained in this Lease shall
constitute Landlord as the agent of Tenant, in any sense, in preparing the Land
for construction or in constructing the Leased Premises. Landlord hereby
indemnifies Tenant and saves and holds Tenant harmless from and against any and
all claims and demands which may arise out of the performance of Landlord's work
in constructing the Leased Premises as required herein by reason of any (a)
mechanic's, materialman's, subcontractor's, contractor's or similar lien; (b)
use of unskilled labor; or (c) willful misconduct or gross negligence of
Landlord, its officers, employees, contractors, and subcontractors their
officers or employees); together with any and all loss, cost, damage, liability
or expense incurred by Tenant in connection therewith, including, without
limitation, attorney's fees and court costs. Tenant hereby indemnifies Landlord
and saves and holds Landlord harmless from and against any and all claims and
demands which may arise out of the performance of Tenant's work in fixturing and
merchandising the Leased Premises prior to the Rental Commencement Date by
reason of any (a) mechanic's, materialman's, subcontractor's, contractor's or
similar lien; (b) use of unskilled labor; and (c) to the extent not covered by
any insurance required to be maintained by either party pursuant to this Lease,
willful misconduct or gross negligence of Tenant, its officers, employees,
contractors, and subcontractors
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(and any of their officers or employees); together with any and all loss, cost,
damage, liability or expense incurred by Landlord in connection therewith,
including, without limitation, attorney's fees and court costs.
ARTICLE V
USE OF LEASED PREMISES
5.01 Use. The Leased Premises may be used and occupied for any
lawful purposes reasonably related to Tenant's business operations, including,
without limitation, warehousing and distribution, offices and such other uses as
are incidental thereto and customary in connection therewith. The Premises shall
not be used for any illegal purposes, or in any manner to create a nuisance or
trespass, or in any manner to change its current operations therein, the result
of which would be to materially change the insurance rating on the Premises.
ARTICLE VI
UTILITIES
6.01 Utilities. Tenant shall be solely responsible for and shall
pay all charges for use or consumption of sanitary sewer, water (including water
used for irrigation purposes, to the extent separately metered), gas,
electricity, telephone and any other utility services for the Leased Premises.
Landlord covenants and agrees that all utility services for the Building shall
be separately metered. Landlord shall not be liable in the event of any
interruption in the supply of any utilities unless and except to the extent
caused by the actions or inactions of Landlord or those for whom Landlord is
responsible at law. Notwithstanding the foregoing, Landlord agrees to use all
reasonable efforts to aid Tenant in having any such interrupted utility restored
in an expeditious manner. In relation thereto, Landlord acknowledges and agrees
that in the event utility service to the Leased Premises are interrupted as a
result of the negligence of Landlord or its agents and such interruption
continues for more than one (1) business day after Tenant gives written notice
thereof to Landlord, then, in such event, the Base Rent due hereunder shall be
abated for the period beginning on that date which is the date of such notice
and shall continue until such interrupted utility is restored; provided,
however, in the event Tenant continues to use any portion of the Premises during
such period, then, in such event, the abatement of Base Rent during such period
shall be prorated based on the square footage of that portion of the Premises
not in use by Tenant versus the total square footage of the Premises. Tenant
agrees that it will not knowingly install any equipment which will exceed or
overload the capacity of any utility facilities and that if any equipment
installed by Tenant shall require additional utility facilities, the same shall
be installed by Tenant, at Tenant's expense, substantially in accordance with
plans and specifications approved in writing by Landlord.
ARTICLE VII
LANDLORD'S DELIVERIES
7.01 Title Matters.
(a) Within twenty (20) days after the effective date of
this Lease, Landlord shall order from a title company acceptable to Tenant
("Title Company") (i) a current Title Insurance Commitment (the "Title Report")
that commits to insure Tenant's leasehold interest in the Premises, and (ii) one
copy of all recorded documents to which reference is made in the schedules to
that Title Report. Landlord must cause the Title Company to deliver the Title
Report and the associated documents to
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Tenant within thirty (30) days after the date of full execution of this Lease.
Within that same time period, Landlord must also deliver to Tenant a copy of all
unrecorded instruments affecting title to the Premises and a certificate by
which Landlord certifies to Tenant that those copies are true, correct and
complete and there are no other unrecorded instruments in force that affect
title to the Premises;
(b) Within thirty (30) days after the date of Tenant's
receipt of the last of the Title Report, the Survey required by virtue of
Section 7.01 (d) below, and the other documents that Landlord must deliver or
cause to be delivered in accordance with the terms of Section 7.02, Tenant must
either submit to Landlord written objections to the condition of title to the
Premises, as reflected in those delivered items, or give Landlord written notice
that it finds the condition of title to the Premises, as reflected in the
delivered items, to be acceptable. For purposes of this Lease, the term
"Permitted Exceptions" shall mean and include only those matters that affect
title to the Premises, that Landlord has disclosed to Tenant by means of the
deliveries made in accordance with the terms of Section 7.02, and that Tenant
acknowledges to be acceptable to it by means of written notice to Landlord.
Without Tenant's prior written approval (which approval shall not be
unreasonably withheld by Tenant with respect to Landlord's creation of utility
easements serving only the Premises), Landlord must not permit title to the
Premises to be affected by any liens, encumbrances, easements, rights-of-way,
restrictions, conditions, covenants, rights or other matters that come into
existence or appear of record for the first time after the effective date of the
Title Report ("Intervening Encumbrances"), except for Intervening Encumbrances
that come into existence by operation of law without action on Landlord's part.
If Landlord proposes to create an Intervening Encumbrance or an Intervening
Encumbrance comes into existence by operation of law without action on
Landlord's part, Tenant must either submit to Landlord written objection to the
Intervening Encumbrance or manifest by written notice to Landlord its acceptance
of the Intervening Encumbrance as a Permitted Exception within twenty (20) days
after the date of Tenant's receipt of the last of a written notice by which
Landlord describes the Intervening Encumbrance, a copy of the instrument that
creates or will create, or that evidences, the Intervening Encumbrance, and, if
Tenant requests, a revised survey plat showing the areas within the Premises
affected by the Intervening Encumbrance. Tenant may object to title matters in
accordance with the terms of this Section 7.01 only if Tenant determines in its
sole discretion that those matters render title to the Premises unmarketable or
could result during the Term in unreasonable interference with the normal
operation of its business on the Premises. Among the matters to which Tenant may
object are (i) any easements, encumbrances or exceptions to title existing on or
as of the effective date of this Lease, (ii) the depiction on the Survey of any
encroachment of improvements from or onto the Land or any encroachment across
any building setback line or into any easement, (iii) the failure of the legal
description set forth in Exhibit "A" to close, (iv) the depiction on the Survey
of any strips or gores, or (v) the inability of the surveyor preparing the
Survey to specifically locate and to depict on the Survey any appurtenant
easements because of incomplete descriptions or for other reasons;
(c) If Tenant objects to any title matter in accordance
with the terms of this Section 7.01, Landlord shall eliminate the effect of that
title matter on the title to the Premises within twenty (20) days after the date
of the delivery of Tenant's objection. If Landlord fails to timely perform the
foregoing obligation within the twenty (20)-day period described above in this
Section 7.01, Tenant may terminate this Lease by delivering written notice to
Landlord at any time prior to the earlier of the date that is thirty (30) days
after the date of the expiration of that twenty (20)-day period;
(d) Unless Tenant waives the requirement in writing,
Landlord shall deliver to Tenant, at Landlord's expense, within thirty (30) days
after the date of full execution of this Lease, an ALTA survey plat (the
"Survey") that depicts the Land and that a land surveyor, who is duly licensed
in the state where the Land is located and is acceptable to Tenant and the Title
Company, prepares on the basis of a current survey of the Land. The surveyor
must conduct his or her survey of the Land, and prepare and certify the Survey,
in accordance with the requirements of this Section 7.01 (d) and such
7
other standards as Tenant may establish. The Survey will show such state of
facts as a detailed physical inspection of the Land would reveal, including,
without limitation, (i) the courses and measured distances of the exterior
property lines of the Land, (ii) the area of the Land expressed in square feet,
(iii) the location of adjoining streets, (iv) the location of setback lines and
easements, each identified, if appropriate, by the recording references of the
recorded instrument that created that setback line or easement, (v) the location
of encroachments, if any, upon the Land, and (vi) the location and path of
utility connections, if any, for the Improvements. With respect to the easements
burdening and benefiting the Land, the Survey will specifically identify their
location and dimensions. The Survey will include a certification that, with
respect to any support utility and mechanical easements depicted on the Survey,
there are no gaps or gores between the Land and the point of commencement of the
easements and those easements with no gaps or gores, from the Land to dedicated
and accepted public utility easements. The legal description of the Land
appearing on the Survey will be the same as that appearing in the Title Report.
In addition, the surveyor must prepare and certify the Survey in accordance with
the Minimum Standard Detail Requirements for land title surveys adopted by the
American Land Title Association and American Congress on Surveying and Mapping.
The Survey will include a certification as to whether any part of the Land lies
within an area that the Federal Emergency Management Agency has designated as a
flood prone or flood hazard area. Landlord must also cause, at Landlord's cost
and expense, such additional survey work as may be necessary or required by the
Title Company to be completed in a timely fashion for issuance of the final
title insurance policy free and clear of survey exceptions. If required by the
Title Company, Landlord must also cause the surveyor to recertify the Survey to
the satisfaction of Tenant and the Title Company no more than five (5) days
prior to the Title Policy Date;
(e) At Tenant's election, but subject to Tenant's payment
of the applicable premium, Landlord must cause the Title Company to issue in
Tenant's favor within one hundred twenty (120) days after the effective date of
this Lease ("Title Policy Date") an extended form ALTA 1992 Form B owner's
policy of title insurance (the "Title Policy"), together with any endorsements
that Tenant considers necessary. The Title Policy must insure Tenant's good and
marketable leasehold interest in the Premises in an amount designated by Tenant
subject only to exception from insurance coverage for the Permitted Exceptions.
Without limiting the generality of the foregoing, in order for the Title Policy
to satisfy the requirements of this Section 7.01(e), (i) the Title Company must
delete all standard exceptions from the Title Policy; (ii) the Title Policy must
affirmatively insure over all survey matters, whether based upon matters of
record or otherwise; (iii) the Title Company must endorse the exception as to
restrictive covenants "None of Record" except for Permitted Exceptions; (iv) the
Title Policy must include a standard form endorsement 100, a zoning endorsement
and a contiguity endorsement and a statement that all taxes and general and
special assessments that became due prior to the Title Policy Date have been
paid; (v) the Title Company must limit the exception as to the lien for taxes to
general real property taxes for the current year not yet due and payable and
subsequent years, and must endorse that exception "Not yet delinquent by
nonpayment"; and (vi) the Title Policy must include an endorsement that insures
unconditional legal access to the Premises from all adjoining public or private
streets or ways and from any parking facility adjoining and serving the
Premises;
7.02 Landlord Deliveries. To the extent not already delivered, on
or prior to five (5) days after the effective date hereof, Landlord shall
deliver to Tenant each of the following (each of which shall be in form and
substance satisfactory to Tenant):
(a) A copy of a current title insurance policy, abstract
of title, or title report relating to the Land;
(b) A copy of a current survey of the Land;
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(c) A copy of a current Phase I environmental assessment
of the Land, and each and every other or additional environmental testing report
or similar report relating to the Land of which Landlord has knowledge;
(d) A certificate from the appropriate governmental
entity with respect to the zoning classification (and any conditions thereof)
applicable to the Land;
(e) Appropriate evidence establishing the authority of
Landlord to enter into this Lease and consummate the transactions described
herein;
(f) An affidavit of title executed by Landlord with
respect to the Leased Premises, in form and content satisfactory to Tenant's
title insurance company, as required in order to issue title insurance without
exception for unrecorded liens or claims or for the rights of parties in
possession;
(g) Subordination, Non-Disturbance and Attornment
Agreement substantially in the form attached hereto as Exhibit "D", or otherwise
in form and substance satisfactory to Tenant, executed by each of Landlord, the
current Landlord's Mortgagee, each ground lessor and any Mortgagee of such
ground lessor; and
(h) A broker's lien waiver executed by the Broker (in
form and content satisfactory to Tenant's title insurance company), sufficient
to cause said title insurance company to issue its policy of title insurance in
favor of Tenant without exception to any lien or claim for brokerage services,
whether arising under Section 00-00-000 et. seq. of the Official Code of Georgia
Annotated, or otherwise.
ARTICLE VIII
LANDLORD'S REPRESENTATIONS AND WARRANTIES
8.01 Warranties and Representations. Landlord represents and
warrants to Tenant that:
(a) after due inquiry, Landlord does not have knowledge
of, or reason to believe that there are, grounds for the filing of any lien
against the Premises and there is no pending action, arbitration, suit, or other
similar proceeding which affects or relates to the Leased Premises or which, if
determined adversely to Landlord, would or might result in the creation of a
lien against or other interest in the Leased Premises;
(b) after due inquiry, Landlord does not have knowledge
of any pending condemnation or similar proceeding affecting any part of the
Premises;
(c) after due inquiry, Landlord does not have knowledge
of any legal actions, suits, or other legal or administrative proceedings that
are now pending or threatened against either Landlord or the Premises and that
would adversely affect Tenant's possession of the Premises in accordance with
the terms of this Lease if finally adjudicated in a manner adverse to the
interests of Landlord;
(d) Landlord has neither granted any leases or licenses
nor created any tenancies affecting the Premises and there are no parties in
possession of any portion of the Premises as trespassers or otherwise;
(e) after due inquiry, Landlord does not have knowledge
of any uncured violations of federal, state or municipal laws, ordinances,
orders, regulations or requirements affecting any portion of the Premises;
9
(f) the Premises have adequate legal access to abutting
public highways, streets and roads;
(g) after due inquiry, Landlord does not have knowledge
of any pending or threatened governmental or private proceedings that would
impair or result in the termination of access from the Premises to abutting
public highways, streets, and roads, and Landlord does not have knowledge of any
general or special assessment or other governmental imposition (other than ad
valorem taxes), either pending or proposed, relating to the Leased Premises, or
any pending or planned street improvements or modifications in the vicinity of
the Leased Premises (such as, without limitation, the construction of any
proposed median) which would or might reasonably be expected to affect
pedestrian or vehicular access to the Leased Premises;
(h) there is presently in existence or available water,
electrical, sanitary sewer and gas utility service adequate for Tenant's
intended use of the Premises;
(i) Tenant's intended use and occupancy of the Premises
fully comply with all requirements of applicable building, zoning and land
development ordinances and all conditions of applicable planning board,
subdivision, site plan and variance approvals, if any, issued in connection with
the development of the Premises;
(j) Landlord will obtain, prior to the Rental
Commencement Date, all required governmental permits and authorizations, site
plan approvals and permits and certificates of occupancy necessary for Tenant's
occupancy and intended use;
(k) Landlord has disclosed to Tenant in writing all
information known to Landlord relating to environmental hazards on or about the
Leased Premises, and Landlord has delivered to Tenant a copy of each and every
environmental testing report or similar report relating to the Leased Premises
of which Landlord has knowledge;
(l) Landlord knows of no releases of, or the presence of,
any hazardous or toxic material, substance or waste on or about the Premises or
any adjacent property;
(m) to Landlord's knowledge, the Premises and all past or
present operations conducted on or about the Premises have complied with all
Environmental Laws (as defined in Section 8.03 below) and orders of any
governmental authorities having jurisdiction under any Environmental Laws;
(n) Landlord has no knowledge of or information regarding
the presence of any hazardous or toxic material, substance or waste at adjacent
properties that could migrate to, through, over or under the Premises.
Landlord's tender of possession of the Premises to Tenant following completion
of the construction of the Improvements will constitute Landlord's reaffirmation
of the warranties set forth in this Section 8.01(n) as of the date of that
tender;
(o) to the best of Landlord's knowledge, the Leased
Premises have never contained any underground storage tank or similar structure,
and the Leased Premises have never been used as a landfill or dump, or for the
operation of any business engaged in the storage or sale of petroleum products,
or for the storage or disposal of any hazardous or toxic substances, or in
violation of any of the aforesaid laws or regulations;
8.02 Compliance with Laws. All Improvements located on the Leased
Premises shall be constructed by Landlord in compliance with all federal, state,
county, municipal or local government
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laws, ordinances, regulations, rules and orders (including, without limitation,
all Environmental Laws, the Americans With Disabilities Act and the Occupational
Safety and Health Act of 1970, as amended). Without limiting the foregoing,
Landlord shall obtain, keep in effect and comply with all governmental permits
and authorizations required by all Environmental Laws with respect to the
Premises or operations conducted on the Premises.
8.03 Compliance with Environmental Laws.
(a) Landlord warrants and represents to Tenant that, to
the best of its knowledge after due inquiry, the Premises are in full compliance
with all applicable environmental laws, rules, requirements, orders, directives,
ordinances and regulations of the United States of America or any state, city or
municipal government or lawful authority having jurisdiction over the Premises
(collectively "Environmental Laws"). Notwithstanding anything contained in this
Lease to the contrary, except as set forth in paragraph (c) below, Landlord
shall take, at its expense, all action necessary, including all remediation and
clean up work, to ensure that the Premises comply at all times with all
Environmental Laws and that the Premises are safe for use and occupancy at all
times.
(b) Except as set forth in paragraph (c) below, Landlord
shall defend, indemnify and save Tenant and its directors, officers, agents,
employees and contractors harmless form and against all claims, obligations,
demands, actions, proceedings, judgments, losses, damages, liabilities, fines,
penalties and expenses (including, without limitations sums paid on settlement
of claims, reasonable attorneys' fees, and reasonable consultant and expert fees
and expenses) that any one or more of them may sustain in connection with any
failure of the Premises to comply with Environmental Laws or in connection with
any environmental condition affecting the Premises.
(c) Except as provided in paragraphs (a) and (b) above,
Tenant shall timely comply, at its cost and expense, with all rules,
requirements, orders, directives, ordinances and regulations applicable to
Tenant's use and occupancy of the Premises, including, without limitation, the
Environmental Laws, and shall defend, indemnify and hold Landlord and its
directors, officers, agents, employees and contractors harmless from and against
all claims, obligations, demands, actions, proceedings, judgments, losses,
damages, liabilities, fines, penalties and expenses (including, without
limitation, sums paid on settlement of claims, reasonable attorneys' fees, and
reasonable consultant and expert fees and expenses) that any one or more of them
may sustain by virtue of any environmental condition that Tenant's use and
occupancy of the Premises causes and the continued existence of which violates
the Environmental Laws. The liability arising by virtue of the foregoing
covenants on the part of Tenant will not exceed the cost of restoring the
Premises to the condition that exists at the Rental Commencement Date. Moreover,
under no circumstances will Tenant be liable for the actions of parties not
under the control of Tenant; provided, however, for the purposes of this
sentence, Tenant's employees, consultants, invitees and authorized agents shall
be deemed to be under Tenant's control.
(d) Notwithstanding the foregoing apparently to the
contrary, if any environmental condition encompassed within this Section 8.03
and not attributable to Tenant's use and occupancy of the Premises is not
susceptible to being corrected within one hundred eighty (180) days after the
date of its discovery or if Landlord fails within one hundred eighty (180) days
after the date of its discovery to correct a condition that is susceptible to
being corrected within that period of time, Tenant may terminate this Lease by
the delivery of written notice to Landlord at least thirty (30) days in advance
of the effective date of termination specified in that notice. Further, if the
correction of any environmental condition not attributable to Tenant's use and
occupancy of the Premises partially or totally impairs Tenant's use of the
Premises, Tenant's obligation to pay Base Rent and Additional Rent will xxxxx
during the period the corrective activity takes place in proportion to the
diminished utility of the Premises in the conduct of Tenant's business.
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(e) The indemnities of Landlord and Tenant contained in
this Section 8.03 will not extend to loss of business, lost rentals, diminution
in property value, or incidental, indirect or consequential damages.
(f) The provisions of this Section 8.03 will survive the
expiration of the Term or the earlier termination of this Lease.
8.04 Entry Onto Leased Premises. During the course of construction
of the Improvements, Tenant and Tenant's agents or contractors may enter upon
the Leased Premises for purposes of inspecting and reviewing the work, taking
measurements, making plans, installing racks and trade fixtures, security and
fire alarm systems, sprinkler lines and systems, computer lines and systems, and
telephones, erecting temporary or permanent signs and doing such other work as
may be appropriate or desirable without being deemed thereby to have taken
possession or obligated itself to pay rent, but Tenant agrees that: (a) Landlord
shall have no liability for injury to any person or damage to any property of
Tenant stored on the Leased Premises except for damages caused by the willful
act or negligence of Landlord or its employees or agents, (b) Tenant shall not
materially interfere with Landlord's construction work on the Leased Premises,
(c) Tenant shall indemnify, protect and hold harmless Landlord from and against
any and all claims, demands, damages, losses, costs, expenses, liabilities and
actions at law or in equity based upon any occurrence or condition arising out
of or attributable to Tenant's negligent exercise of such right to the extent
not covered by the insurance required to be maintained by Landlord pursuant to
Section 14.01 below, and (d) Tenant shall be solely responsible for the
permitting of any such work it performs. Likewise, during such time as Tenant is
on the Leased Premises for purposes of Tenant's fixturing work, Landlord agrees
that: (a) Tenant shall have no liability for injury to any person or damage to
any property of Landlord stored on the Leased Premises except for damages caused
by the willful act or negligence of Tenant or its employees or agents, (b)
Landlord shall not materially interfere with Tenant's construction work on the
Leased Premises, (c) Landlord shall indemnify, protect and hold harmless Tenant
from and against any and all claims, demands, damages, losses, costs, expenses,
liabilities and actions at law or in equity based upon any occurrence or
condition arising out of or attributable to Landlord's exercise of such right,
and (d) Landlord shall be solely responsible for the permitting of any such work
it performs. Tenant shall comply with the requirements set forth in the "Safety
Starts Here" Safety Manual for Xxxx X. Xxxxxx and Associates (a copy of which
has been delivered to Tenant) in connection with any entry upon the Leased
Premises pursuant to this Section 8.04.
8.05 Construction Warranty and Repair of Site or Structural
Defects. Notwithstanding anything elsewhere in this Lease to the contrary,
Landlord shall, at its sole cost and expense, upon notice by Tenant, repair,
replace or otherwise correct site, structural or other construction defects, as
well as defects in any of the items to be constructed or installed by Landlord
in accordance with this Lease, as and in the manner provided in Section 2.03 of
the Work Letter Agreement. In addition, Landlord acknowledges and agrees that it
shall, at its sole cost and expense, repair any site defects or structural
defects in any of the structural components of the Leased Premises discovered
during the Term. Landlord acknowledges and agrees that notwithstanding any
provision to the contrary contained herein, Landlord's costs incurred in
connection with its obligations under this Section 8.05 shall not be passed
through to Tenant.
8.06 Report of Defects. From the Rental Commencement Date until the
expiration or earlier termination of the Term hereof, Tenant shall have
exclusive control of the Leased Premises and Landlord shall be under no
obligation to inspect the same. Tenant shall report in writing to Landlord any
defective condition known to it which Landlord is required to repair, and
Landlord shall move with reasonable diligence to repair such condition. Landlord
agrees that in the event Landlord fails to maintain the Leased Premises as
required or fails to commence to make repairs within ten (10) days after its
receipt of notice from Tenant, or fails thereafter to diligently pursue such
repair to completion, then Tenant shall have the
12
right to make such repairs and charge Landlord for the cost thereof, and
Landlord shall promptly pay Tenant such costs. Failure to report such defects
within a reasonable time after discovery shall make Tenant responsible to
Landlord for any and all additional costs or liability incurred by Landlord
resulting from such delay in notification.
ARTICLE IX
MAINTENANCE, REPAIRS, AND ALTERATIONS
9.01 Landlord's Maintenance and Repairs. Landlord agrees that it
shall, at all times during the Term of this Lease, at its sole cost and expense
except if and to the extent any such repairs are caused solely by Tenant's gross
negligence or willful misconduct:
(a) Keep, repair and maintain in good order and condition
(i) the structural portions of the Building, including, without limitation, the
roof; (ii) the exterior walls (painted, cleaned and/or sandblasted); (iii) the
window frames (but only to the extent repair thereto is necessitated due to
settling of the Building or other structural failure of the Building) and the
windows; (iv) the foundation; (v) structural parts of the floor; (vi) all
structural members; (vii) all utility lines and related facilities which service
the Leased Premises and which are located outside of the Building ; (viii) the
automatic sprinkler supply line (excluding exposed sprinkler heads); and (ix)
the wiring from the main circuit breaker panels (excluding the circuit breaker)
to the weatherboard and extending to the public utility power sources;
(b) Make any repairs to the Leased Premises which would
otherwise be the responsibility of Tenant and which are required because of
defective or faulty installation or materials or other latent defects;
(c) Make any repairs to the Leased Premises caused by the
acts or negligence of Landlord, its employees, officers, agents, licensees,
invitees, contractors or subcontractors;
(d) Make any and all structural repairs, alterations and
additions (i) which may be hereafter required by any law, ordinance, order or
regulation of any public authority having jurisdiction over the Leased Premises
(excluding any such repairs, alterations and additions if and to the extent that
the same are required because of any particular use made of the Leased Premises
by Tenant, which shall be Tenant's responsibility), or (ii) which may be
required or recommended by Tenant's insurance carrier if, in such carrier's
professional engineering analysis and judgment, such repair, alteration or
addition is necessary or advisable to prevent an increased risk of an insured
loss, regardless of cause; and
(e) Landlord shall replace all landscape plantings that
die during the initial year of the Term for reasons not attributable to a
failure on Tenant's part to make arrangements for the landscaping care described
below.
The Base Rent shall be proportionately abated for that period of time
Tenant is deprived of the use of all or a portion of the Leased Premises while
any such repair is being performed. The abatement of the Base Rent shall be
equal to the proportion of the floor area of Building of which Tenant is
deprived of the use to the total square feet of floor area of the Building.
All repairs, alterations or additions required to be made by Landlord
under the terms of this Lease shall be commenced and completed within ten (10)
days after Landlord receives written notice from Tenant of the need therefor;
provided that if the work cannot reasonably be completed within ten (10) days,
then Landlord shall have such additional time as shall be reasonably necessary,
so long as Landlord has commenced the work within said ten (10)-day period and
thereafter diligently proceeds to complete
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the same. In the event Landlord fails or refuses to make such required repairs,
alterations or additions within the time period therefor, Tenant shall have the
right (but not the obligation) to make such repair, alteration or addition and
upon completion thereof, deliver an invoice for the reasonable cost thereof to
Landlord for payment. Landlord shall have a period of thirty (30) days after
receipt of such invoice in which to pay Tenant, failing in which, Tenant may
deduct the cost thereof from each monthly installment of the Base Rent
thereafter becoming due until such cost, together with interest thereon at the
rate of twelve percent (12%) per annum for the period from the date such cost
was incurred to the date repaid, shall be recovered in full.
(f) Tenant's Maintenance and Repairs. During the Term of
this Lease, Tenant agrees that, except as otherwise provided in this Lease, it
shall repair and maintain in good condition (i) the interior and exterior
non-structural portions of the Leased Premises, (ii) all paved areas, driveways,
walkways, parking areas, grounds and landscaping located on the Premises; and
(iii) all utility lines and related facilities serving the Building and located
within the Building; provided, however, Tenant shall not have any obligation to
perform any maintenance and repair to the interior of the Premises caused by or
resulting from Landlord's failure to perform any of its obligations hereunder.
The repairs and maintenance of the Premises which are the responsibility of
Tenant hereunder shall include, without limitation, interior pest control, the
HVAC system; the life/safety systems, signage, the security system (access
control and keying),and trash and waste removal (including, but not limited to,
solid waste, hazardous waste and recycling). Landlord shall assign to Tenant the
non-exclusive benefit of any warranty or other protection afforded by the
manufacturers or installers of all portions of the Premises which Tenant is
obligated to repair and maintain, as aforesaid. Notwithstanding anything
contained herein to the contrary, Tenant shall not be required to make any
repairs (to the extent over $1,000.00 per single occurrence), alterations or
replacements to the HVAC system during the last twelve (12) months of the Term
hereof (including any extensions thereof).
(g) Emergency Repairs. In the event it shall become
necessary to make any emergency repair which would otherwise be required to be
made by Landlord, Tenant shall use its best efforts to contact Landlord, and in
the event of its inability to do so, Tenant may proceed forthwith to have the
repairs made and pay the cost thereof and promptly thereafter deliver a xxxx for
such repairs to Landlord. In the event the xxxx for such repairs is not paid
within thirty (30) days after Landlord's receipt of such xxxx, Tenant may deduct
all of its cost and expenses in connection therewith from each monthly
installment of the Base Rent thereafter becoming due until such sum, together
with interest thereon at the rate of twelve percent (12%) per annum for the
period from the date such cost was incurred to the date repaid, shall be
recovered in full. For purposes of this Section 9.01 (g), an "emergency repair"
will be deemed necessary if the failure to immediately repair or correct a
condition in the Premises could result in a hazardous situation or condition or
have, in the reasonable opinion of Tenant or its insurance carrier, an adverse
effect on or to normal business operations in the Premises or result in damage
to Tenant's personal property, product or inventory, or threaten the life or
safety of Tenant's employees, customers, visitors, agents or consultants.
9.02 Alterations, Additions and Improvements. Tenant shall have the
absolute right, without obtaining the consent of Landlord, to make alterations,
additions or improvements to the Leased Premises so long as same are made in
accordance with all applicable laws, rules and regulations, and so long as same
do not affect the structural integrity or reduce the level of supporting systems
below that required for general warehouse use. Tenant shall, prior to making any
material or substantial alterations, additions or improvements, provide to
Landlord a copy of the plans and specifications therefor.
9.03 Surrender of Leased Premises. Notwithstanding any other
provisions contained herein to the contrary, upon the termination of this Lease
and Landlord's reasonable request made in writing within six (6) months prior to
the scheduled Expiration Date, Tenant agrees to remove, within sixty (60) days
14
after the Expiration Date, at Tenant's sole cost and expense but without payment
of any Base Rent or Additional Rent for and during such sixty (60) day removal
period, all improvements made to, in or on the Premises by or at the expense of
Tenant, including without limitation, counters, shelving, racks, and security
systems, and such alterations, additions, trade fixtures, machinery or other
trade equipment installed by Tenant, and to repair any material damage to the
Leased Premises as may be occasioned by such removal. Tenant shall otherwise
return the Leased Premises on the termination of this Lease broom clean and in
reasonably good condition, casualty, condemnation, reasonable wear and tear
excepted.
ARTICLE X
INDEMNIFICATION
10.01 Indemnity by Tenant. Except as provided in Section 11.01
below, Tenant shall indemnify and hold Landlord harmless and against all claims,
actions, demands, judgments, damages, liabilities and expenses, including
reasonable attorneys' fees, that may be asserted against Landlord or that
Landlord may sustain by virtue of the occurrence of the death of or bodily
injury to any person or the loss of, damage to, or destruction of, any property
arising (a) from Tenant's use and occupancy of the Premises, except to the
extent the claims, actions, demands, judgments, damages, liabilities or expenses
arise from the intentional or negligent acts or omissions of Landlord or any of
its representatives, agents, employees, contractors or invitees, or (b) in
connection with or based upon any breach by Tenant of any of the covenants,
representations or warranties of Tenant contained in this Lease. This indemnity
shall survive the termination of the Lease.
10.02 Indemnity by Landlord. Except as provided in Section 11.01
below, Landlord shall indemnify and hold Tenant harmless from and against all
claims, actions, demands, judgments, damages, liabilities and expenses,
including reasonable attorneys' fees, that may be asserted against Tenant or
that Tenant may sustain by virtue of the occurrence of the death of or bodily
injury to any person or the loss of, damage to, or destruction of any property
arising (a) in connection with any latent or patent defect in the condition of
the Premises existing as of the Rental Commencement Date, or from any breach or
default in the performance of any obligation on Landlord's part to be performed
under this Lease, or (b) from the negligent or intentional acts or omissions of
Landlord, or any of its representatives, agents, employees, contractors or
invitees, except to the extent any such claims, actions, demands, judgments,
damages, liabilities or expenses arise from the intentional or negligent acts or
omissions of Tenant or any of its representatives, agents, employees,
contractors or invitees, or (c) in connection with or based upon any breach by
Landlord of any of the covenants, representations or warranties of Landlord
contained in this Lease. This indemnity shall survive the termination of the
Lease.
ARTICLE XI
WAIVER OF SUBROGATION
11.01 Mutual Release and Waiver of Subrogation. Notwithstanding any
indemnity granted herein, except for and with respect to any loss or damage
caused by or resulting from Landlord's failure or refusal to fully and promptly
perform its repair and maintenance obligations under Section 9.01 of this Lease
or from any other default by Landlord of any of its obligations hereunder,
Landlord and Tenant hereby both release the other and their respective
employees, agents and invitees from and waive any claims either may have against
the other and their employees, agents, servants or invitees for any loss or
damage to the Leased Premises, Improvements or the contents of the foregoing,
and any personal property stored or placed thereon by either of them, caused by
any of the perils insurable against under fire and extended coverage insurance
policies with "all risks" endorsement, whether such damage or loss was caused by
the negligence of either of them or their respective employees, agents, servants
or invitees.
15
The foregoing mutual release and waiver of subrogation shall apply whether or
not such insurance on the Leased Premises, Improvements, contents, and/or
personal property was in force at the time of the loss of damage. Moreover, each
party agrees to take all actions necessary to make the foregoing release
effective and binding upon their respective insurance carriers so that such
carriers specifically waive any right of subrogation that such carriers might
otherwise have against the other party and/or their respective employees,
agents, servants or invitees, and each of Landlord and Tenant shall deliver to
the other a certificate of insurance stating that all of its hazard and
liability insurance policies (including Landlord's "all risk" builder's risk
insurance) covering or relating to the Premises include such a waiver of
subrogation clause.
ARTICLE XII
SIGNS
12.01 Tenant Signage. Landlord acknowledges and agrees that Tenant
shall have the right to design, construct and install a pylon sign on the
Premises, at Tenant's sole cost and expense, and may have signage located on the
Building and elsewhere on the Premises, so long as such signage is in
conformance with all applicable governmental requirements. Tenant shall have the
absolute right to place its corporate identification signs within the interior
of the Building as Tenant so elects.
ARTICLE XIII
ENTRY BY LANDLORD
13.01 Entry by Landlord. Tenant shall permit Landlord and Landlord's
agents to enter the Leased Premises at all reasonable times during normal
business hours for the purpose of inspecting the same or for the purpose of
maintaining the Leased Premises, or for the purpose of making repairs,
alterations, or additions to any portion of the Leased Premises required or
permitted hereunder or for the purpose of posting notices of non-responsibility
for alterations, additions, or repairs, or for the purpose of showing the Leased
Premises to prospective tenants (but only during the final six (6) months of the
Lease Term), or placing upon the Leased Premises any usual or ordinary "for
sale" signs, without any rebate of rent and without any liability to Tenant for
any loss of occupation or quiet enjoyment of the Leased Premises thereby
occasioned; and shall permit Landlord at any time within six (6) months prior to
the expiration of this Lease, to place upon the Leased Premises any usual or
ordinary "to let" or "to lease" signs. Landlord's right of entry hereunder is
conditioned upon the following: (a) except as required to make an emergency
repair, the receipt by Tenant of at least twenty-four (24) hours' prior written
notice of its intent to enter the Leased Premises, which notice shall set forth
with particularity the name of each individual seeking entry on behalf of the
Landlord, (b) the execution by Landlord of a Confidentiality Agreement, to the
extent deemed necessary by Tenant, and (c) such entry shall be conducted in such
manner so as to minimize any interference with Tenant's business operations.
Notwithstanding the above, Tenant herewith reserves the right to refuse entry by
Landlord to all or a portion of the Leased Premises due to safety or security
concerns of Tenant.
ARTICLE XIV
INSURANCE
14.01 Landlord Insurance.
(a) Landlord shall, at its own expense, procure and
maintain in full force and effect at all times during the Term of this Lease,
(a) "all risk" fire and extended coverage property insurance on
16
the Improvements, the Building's standard leasehold improvements, and the
machinery, boilers, and equipment contained therein, including without
limitation, the complete sprinkler system (including the "in rack" system), but
excluding any property that Tenant is obliged to insure under Section 14.02(b)
below, in an amount equal to the full replacement cost thereof, and (b) time
element insurance covering the loss of rental income for a period of up to
twelve (12) months that may occur as a result of loss or damage to the Building
caused by any peril covered by the property insurance described in (a) above.
The policy or policies by which Landlord provides such insurance must name as
insured parties Tenant, Landlord and those of Landlord's Mortgagees as Landlord
designates by written notice to Tenant and the insurance carrier, and shall
contain a mortgagee clause in favor of Landlord's designated Mortgagees. As used
herein, "Mortgage" means any deed to secure debt, mortgage, deed of trust, or
similar security instrument. "Mortgagee" means the holder of a Mortgage. As
Additional Rent, Tenant shall reimburse Landlord for (i) the amount of the
premiums for such insurance coverage, as provided in Sections 3.03(a) and 3.04
above, and (ii) the deductible portion of any claims expenses, not to exceed an
amount equal to $10,000.00.
(b) In addition to the foregoing, Landlord shall,
throughout the Lease Term, carry public liability insurance with respect to the
ownership of the Premises.
14.02 Tenant Insurance.
(a) Tenant, at its own expense, shall obtain and keep in
full force and effect at all times during the Term of this Lease, commercial
general public liability insurance for the benefit of Landlord and Tenant (and,
at Landlord's request, any Mortgagee of Landlord) jointly, against liability for
personal injury and property damage in the amount of not less than Five Million
Dollars ($5,000,000.00) in respect to injuries to or death of more than one
person in any one occurrence, in the amount of not less than Three Million
Dollars ($3,000,000.00) in respect to injuries to or death of any one person,
and in the amount of not less than Three Million Dollars ($3,000,000.00) per
occurrence in respect to damage to property, such limits to be for any greater
amounts as may be reasonably indicated by circumstances from time to time
existing. All or part of the liability insurance coverage, if any, that may from
time to time be required or maintained in excess of the minimum limits set forth
above may be provided by an umbrella policy complying in all respects with the
requirements of this Article 14 and which provides that its coverage is not
limited or affected by claims made with respect to personal injury or property
damage at Tenant's other locations;
(b) Beginning on the Rental Commencement Date and
continuing throughout the Term of this Lease, Tenant shall, at its own expense,
procure and maintain in full force and effect "all risk" fire and extended
coverage insurance covering the full replacement cost of Tenant's leasehold
improvements and all property of every description and kind owned by Tenant and
located in the Building and for which Tenant is legally liable or which was
installed by or on behalf of Tenant, including without limitation, furniture,
fittings, installations, alterations, additions, partitions, racks, and
fixtures, subject only to a commercially reasonable deductible.
14.03 Insurance Requirements. Each insurance policy required to be
maintained by Landlord and Tenant hereunder shall be written by a company having
an A.M. Best Company rating of "A" or better and a financial category of "VII"
or better and legally qualified to issue such insurance, and shall name as
insured parties Landlord (and, at Landlord's request, any Mortgagee of Landlord)
and Tenant, as their interests may appear. Each such policy shall provide that
it shall not be canceled or reduced except after not less than thirty (30) days'
written notice to Tenant or Landlord (and any Mortgagee of Landlord), as
applicable, and shall also provide that the interest of Tenant, Landlord and any
Mortgagee of Landlord shall not be invalidated by any act or negligence of
Tenant or Landlord or of any person or entity having an interest in the Leased
Premises nor by occupancy or use of the Leased Premises for any purpose that is
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more hazardous than permitted by such policy. Tenant and Landlord shall each
deliver to the other party (and, at Landlord's request, any Mortgagee of
Landlord), a certificate of insurance evidencing the existence and renewal of
each insurance policy which is required to be maintained by such party hereunder
(and specifically confirming that such policy shall not be canceled or reduced
except after not less than thirty (30) days' written notice to Tenant, Landlord
and any Mortgagee of Landlord), such delivery to be made promptly after such
insurance is obtained at least thirty (30) days' prior to the expiration date of
such insurance policy. Except as provided in Section 14.01 (a) above with
respect to Tenant's payment of the deductible portion of any of Landlord's
claims expenses as "Additional Rent," if any such insurance policy has a
deductible clause, the party responsible for such insurance shall be liable for
the full deductible amount. Each policy of property insurance maintained by
Tenant hereunder shall provide that the insurer waives any right of subrogation
against Landlord and any Mortgagee of Landlord, and each policy of property
insurance maintained by Landlord with respect to the Leased Premises shall
provide that the insurer waives any right of subrogation against Tenant. Each
such policy maintained by Tenant shall be primary and non-contributing with any
insurance carried by Landlord (and any Mortgagee of Landlord).
14.04 Blanket Insurance. Each of Landlord and Tenant may provide the
insurance required by virtue of the terms of this Lease by means of a
combination of primary and excess or umbrella coverage and by means of a policy
or policies of blanket insurance so long as (a) the amount of the total
insurance allocated to the Premises under the terms of the blanket policy or
policies furnishes protection equivalent to that of separate policies in the
amounts required by the terms of this Lease, and (b) the blanket policy or
policies comply in all other respects with the other requirements of this Lease.
14.05 Builder's Risk. During all periods of Landlord's construction
hereunder, up to and including the Rental Commencement Date, Landlord shall
procure for, deliver to and maintain for the benefit of Landlord and Tenant,
"all risk" builder's risk insurance, in such amounts, form and substance and
with such expiration dates as are reasonably acceptable to the parties hereto.
Said builder's risk insurance shall include full collapse coverage.
ARTICLE XV
ABANDONMENT
15.01 Abandonment. Notwithstanding the foregoing, Tenant may vacate
the Leased Premises during the Term of this Lease provided (i) Tenant is not
otherwise in default hereunder; (ii) Tenant adequately secures the Leased
Premises to prevent damage, destruction or vandalism to the Leased Premises;
(iii) Tenant continues such utilities to the Leased Premises as will prevent any
damage to the Leased Premises; (iv) Tenant continues to provide insurance for
the Leased Premises and Tenant pays any increased premium resulting from a lack
of a tenant in the Leased Premises.
ARTICLE XVI
DESTRUCTION
16.01 Damage or Destruction.
(a) If the damage caused by a fire or other casualty
renders the Building untenantable, the Base Rent required by virtue of Article
III above will xxxxx for the period during which the Building is untenantable,
extending from the date of such damage or destruction to the date which is the
earlier of (i) the date that full use of the Building is restored to Tenant and
Tenant commences full operations in and deliveries from the Premises, or (ii)
the date which is sixty (60) days after restoration of
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the Building (exclusive of Tenant's improvements) is completed, which abatement
shall be equal to the proportion of the damaged or destroyed area of the
Building to the total floor area of the Building. If the damage caused by a fire
or other casualty renders the Building partially untenantable, the Base Rent
will partially xxxxx until full use of the Building is restored to Tenant in
proportion to the diminished utility of the Building in the conduct of Tenant's
normal business operations. Landlord is entitled to receive all proceeds payable
in respect of the time element insurance maintained accordance with the terms of
Section 14.01 above.
(b) If a fire or other casualty renders the Premises
untenantable in whole or in part, and the estimated time for the restoration of
the Premises (inclusive of leasehold improvements Tenant makes) exceeds the
period that will expire on the date that is the date that is one hundred eighty
(180) days after the date of the occurrence of the fire or casualty, Tenant may
terminate this Lease by the delivery of written notice to Landlord within
fifteen (15) days following the date on which Landlord notifies Tenant of the
estimated time for the restoration. Landlord must provide that estimate within
thirty (30) days following the date of the casualty. If a termination of this
Lease does not occur in accordance with the foregoing provisions of this Section
16.01(b), but Landlord fails to complete the restoration of the Premises by the
date that is thirty (30) days after the date of the expiration of the period
within which Landlord estimated the restoration would be completed, Tenant may
terminate this Lease by the delivery of written notice to Landlord at any time
following the expiration of that 30-day period, but prior to the date on which
Landlord completes the restoration of the Premises. If a termination of this
Lease occurs in accordance with the terms of this Section 16.01, Landlord is
entitled to receive all proceeds payable in respect of the insurance that
Landlord maintains in accordance with the terms of Section 14.01 above to the
extent not previously disbursed to Landlord in connection with the restoration
of the Premises.
(c) If fire or other casualty damages the Premises and a
termination of this Lease does not occur, Landlord shall have the obligation to
restore the Premises to substantially the condition that existed prior to the
occurrence of the fire or other casualty, exclusive of leasehold improvements
made by Tenant, using the proceeds of the insurance described in Section 14.01
above. Landlord shall exercise due diligence and dispatch in restoring the
Premises. In so doing, Landlord shall comply with all applicable laws,
ordinances and regulations. In performing its restoration obligation, Landlord
must restore the Improvements so that they comply with laws and regulations
applicable at the time of the restoration and not just the laws and regulations
that were applicable at the time of original construction of the Improvements.
ARTICLE XVII
ASSIGNMENT AND SUBLETTING
17.01 Assignment and Subletting. At any time after completion of the
Improvements and delivery of possession and the final, unrestricted Certificate
of Occupancy to Tenant in accordance with the Work Letter Agreement, Landlord
shall have the right to transfer and assign, in whole or in part, its rights and
obligations in the Leased Premises; provided, however, in the event of any such
transfer and assignment, Landlord shall remain primarily responsible for any
liability to Tenant arising either (i) prior to the date of said assignment, or
(ii) by virtue of Landlord's failure to timely deliver the Leased Premises to
Tenant in accordance with the standards and schedules set forth in this Lease.
Tenant shall have the right to sublet the Premises, in whole or in part, or
assign this Lease, with the written consent of the Landlord, which consent shall
not be unreasonably withheld, conditioned or delayed; provided, however, in the
event of any assignment or subletting, unless Landlord otherwise permits, and
except in the event of an assignment or subletting to a subsidiary or affiliate
of Tenant as contemplated below, Tenant shall nevertheless at all times remain
fully responsible and liable for the payment of the Base Rent.
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Notwithstanding the foregoing, Tenant shall have the right, without Landlord's
consent, to assign this Lease to any subsidiary of Tenant, or to any corporation
or other entity into which or with which Tenant, or any subsidiary thereof, may
merge or consolidate, or to any corporation or other entity owned, directly or
indirectly, by any subsidiary of Tenant, or to any corporation or other entity
acquiring all or substantially all of the assets of Tenant. Moreover,
notwithstanding anything contained in the Lease to the contrary, an assignment
shall not be deemed to include a change in Tenant's corporate control or stock
ownership.
ARTICLE XVIII
INSOLVENCY OF TENANT
18.01 Insolvency of Tenant. Either (a) the appointment of a receiver
to take possession of all or substantially all of the assets of Tenant, or (b) a
general assignment by Tenant for the benefit of creditors, or (c) any action
taken or suffered by Tenant under any insolvency or bankruptcy act shall, if any
such appointments, assignments or action continues for a period of sixty (60)
days, constitute a breach of this Lease by Tenant, and Landlord may at its
election with written notice, terminate this Lease and in that event be entitled
to immediate possession of the Leased Premises and damages as provided below.
Notwithstanding the foregoing, so long as all Base Rent and Additional Rent are
satisfied in accordance with the Lease or applicable law, then any such actions
of insolvency shall not be a breach of this Lease and Landlord may not terminate
this Lease as a result thereof.
ARTICLE XIX
BREACH
19.01 Event of Default. The occurrence of any of the following shall
constitute an Event of Default ("Event of Default") under this Lease on the part
of Tenant:
(a) Failure to pay when due any payment of Base Rent,
Additional Rent, or any other sum of money payable by Tenant under this Lease,
and such failure to pay continues for a period of ten (10) days after notice
from Landlord of such failure to pay;
(b) Tenant's interest in this Lease or the Leased
Premises shall be subjected to any attachment, execution, levy or other judicial
seizure pursuant to any order or decree entered against Tenant in any legal
proceeding that is not stayed or quashed (so as to prevent seizure) pending
appeal and such order or decree is not vacated or bonded against so as to
prevent seizure upon the earlier to occur of (i) fifteen (15) days prior to the
sale of such interest pursuant to such order or decree, or (ii) sixty (60) days
after entry of the order; or
(c) Tenant breaches or fails to comply with any term,
provision, condition, or covenant of this Lease, other than as described in
clauses 19.01(a) and (b) above, and such breach or failure continues for thirty
(30) days after written notice from Landlord of such breach or failure to
comply; or in the event such breach or failure is curable but cannot be cured
within thirty (30) days and Tenant does not commence to cure such breach or
failure promptly within such thirty (30) day period and continuously thereafter
pursue such cure and remedy of such breach or failure within a reasonable period
of time, not to exceed an additional ninety (90) days.
19.02 Remedies. Upon the occurrence of an Event of Default, Landlord
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:
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(a) Landlord, with or without terminating this Lease, may
immediately or at any time thereafter re-enter the Leased Premises and correct
or repair any condition which shall constitute a failure on Tenant's part to
keep, observe, perform, satisfy, or abide by any term, condition, covenant,
agreement, or obligation of this Lease or of any notice given Tenant by Landlord
pursuant to the terms of this Lease, and Tenant shall fully reimburse and
compensate Landlord on demand for Landlord's actual reasonable costs so
incurred.
(b) Landlord, with or without terminating this Lease, may
immediately or at any time thereafter demand in writing that Tenant vacate the
Leased Premises and thereupon Tenant shall immediately vacate the Leased
Premises and remove therefrom all property thereon belonging to or placed in the
Leased Premises by, at the direction of, or with consent of Tenant, whereupon
Landlord shall have the right to re-enter and take possession of the Leased
Premises. Any such demand, re-entry and taking possession of the Leased Premises
by Landlord shall not of itself constitute an acceptance by Landlord of a
surrender of this Lease or of the Leased Premises by Tenant and shall not of
itself constitute a termination of this Lease by Landlord.
(c) Landlord, with or without terminating this Lease, may
immediately or at any time thereafter, re-enter the Leased Premises pursuant to
a court order and remove therefrom Tenant and all property belonging to or
placed on the Leased Premises by, at the direction of, or with consent of
Tenant. Any such re-entry and removal by Landlord shall not of itself constitute
an acceptance by Landlord of a surrender of this Lease or of the Leased Premises
by Tenant and shall not of itself constitute a termination of this Lease by
Landlord.
(d) Landlord, with or without terminating this Lease, may
immediately or at any time thereafter use reasonable efforts to relet the Leased
Premises or any part thereof, without cost to Landlord for such time or times,
at such rental or rentals and upon such other terms and conditions as Landlord
in its reasonable judgment (taking into account the fair market rental value of
the Leased Premises) deems advisable, and Landlord may make any alterations or
repairs to the Leased Premises which it may deem reasonably necessary or proper
to facilitate such reletting; and Tenant shall pay all actual and reasonable
costs of such reletting including but not limited to the cost of any such
reasonable alterations and repairs to the Leased Premises, reasonable attorneys'
fees actually incurred, reasonable leasing inducements, and reasonable brokerage
commissions; and if this Lease shall not have been terminated, Tenant shall
continue to pay all rent 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
Leased Premises, and thereafter Tenant 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 Tenant shall not be entitled to
receive any excess of any such rents collected over the rent reserved herein.
(e) Landlord may immediately or at any time thereafter
terminate this Lease, and this Lease shall be deemed to have been terminated
upon receipt by Tenant of notice of such termination; upon such termination
Landlord shall recover from Tenant all damages that Landlord 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 reasonable attorneys' fees actually incurred) of
recovering possession of the Leased Premises, and the actual or estimated (as
reasonably estimated by Landlord) cost of any alteration of or repair to the
Leased Premises which is necessary or proper to prepare the same for reletting.
(f) In addition to the foregoing, Landlord shall have all
the rights and remedies available to it at law or in equity, except that there
shall be no right to accelerate the payment of rent to accrue hereunder
following any such Event of Default, and Landlord may not seek as damages any
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amounts becoming due under the terms of this Lease in advance of the time that
they become due or would have become due absent a termination of this Lease.
19.03 Re-entry by Landlord. If Landlord re-enters the Leased
Premises or terminates this Lease pursuant to any of the provisions of this
Lease, no such re-entry or termination shall be considered or construed to be a
forcible entry.
19.04 Mitigation of Damages. In the event Tenant should default
under this Lease, Landlord will conduct itself in such a manner designed to
mitigate the damages caused by Tenant's default. If Tenant is dispossessed or
otherwise vacates the Leased Premises but Landlord elects not to terminate the
Lease, Landlord shall make reasonable, good faith efforts to relet the Leased
Premises and collect the rent therefrom. In no event shall Landlord be entitled
to accelerate rent.
19.05 Events of Default by Landlord. "Events of Default by Landlord"
under this Lease shall be deemed to be the situations where Landlord shall fail
to comply with any term, provision or covenant of this Lease and shall not
commence to cure such failure within thirty (30) days after written notice
thereof and diligently and in good faith continue to cure the default until
completion. If the default cannot reasonably be cured within such thirty (30)
day period, Landlord shall not be in default if Landlord commences to cure the
default within the thirty (30) day period and diligently and in good faith
continues to cure the default until completion. In no event shall Landlord's
right to cure extend beyond ninety (90) days following written notice from
Tenant, unless such period is extended by Tenant Delays or Excusable Delays.
19.06 Tenant's Remedies. Upon the occurrence of any Event of Default
by Landlord, no Base Rent or Additional Rent shall be paid or become payable
under this Lease until such Event of Default shall be cured, and Tenant may at
its option, but only during the continuance of such Event of Default, and
without limitation on any other right or remedy available to Tenant at law or in
equity (all such rights and remedies to be cumulative):
(a) Declare the Term ended and vacate the Premises and be
relieved from all obligations thereafter accruing under this Lease; and/or
(b) Pay any sum or perform any act necessary to satisfy
any obligation of Landlord hereunder and deduct the cost thereof, with interest
thereon at the rate of twelve percent (12%) per annum for the period from the
date such cost was incurred to the date repaid, from each monthly installment of
Base Rent thereafter to become due until such cost and interest shall be
recovered in full; and/or
(c) Xxx for injunctive relief, specific performance of
this Lease, and/or damages, as the case may be.
ARTICLE XX
ATTORNEY'S FEES
20.01 Attorney's Fees. If Landlord and Tenant litigate any provision
of this Lease or the subject matter of this Lease, the unsuccessful litigant
will pay to the successful litigant all costs and expenses, including reasonable
attorneys' fees (but only if and to the extent actually paid and based on
prevailing hourly rates) and court costs, incurred by the successful litigant at
trial and on any appeal. If, without fault, either Landlord or Tenant is made a
party to any litigation instituted by or against the other, the other will
indemnify the faultless one against all loss, liability, and expense, including
reasonable
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attorneys' fees (but only if and to the extent actually paid and based on
prevailing hourly rates) and court costs, incurred by it in connection
with such litigation.
ARTICLE XXI
CONDEMNATION
21.01 Condemnation.
(a) If any part of the Premises is taken for public use
by condemnation, eminent domain or other similar action and, in Tenant's
reasonable discretion, such taking adversely affects Tenant's use or occupancy
of the Premises, Tenant may immediately terminate this Lease by delivering
notice to Landlord.
(b) If any part of the Premises is taken and Tenant does
not terminate this Lease, Base Rent and Additional Rent required hereunder will
xxxxx for the balance of the Term in proportion to the diminished utility of the
Premises in the conduct of Tenant's normal business operations, and Landlord
shall restore the remainder of the Premises, at its expense, as necessary to
render them suitable for Tenant's use.
(c) All condemnation awards made with respect to
Landlord's reversionary interest in the Premises will be the exclusive property
of Landlord, but Tenant reserves the right to bring an action in its own name
for its loss of business and leasehold interest as well as any other damages
that Tenant may recover as a result of the condemnation action.
ARTICLE XXII
NOTICES
22.01 All notices, statements, demands, requests, consents,
approvals, authorization, offers, agreements, appointments, or designations
under this Lease by either party to the other shall be in writing and shall be
sufficiently given and served upon the other party, if sent by either (i) hand
delivery, (ii) reputable overnight courier service; (iii) facsimile or (iv)
certified mail, return receipt requested, postage prepaid, and addressed as
follows:
(a) To Tenant, at 000 Xxxxxxx Xxxxx Xxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000, Attention: Sr. V.P., Real Estate and Development; Fax
Number: (000) 000-0000; with a copy to Xxxxx, Xxxxxxxx & Xxxxxxx, LLP, Suite
3100, Promenade II, 0000 Xxxxxxxxx Xxxxxx, X.X., Xxxxxxx, Xxxxxxx, 00000-0000,
Attention: Xxxx X. Xxxxxxx, Esq., Fax Number (000) 000-0000
(b) To Landlord, at 0000 Xxxxx Xxxxx Xxxxxxx Xxxxx,
Xxxxxx, Xxxxxxx 00000, Attention: Xxxxxx Xxxxxx; Fax Number: (000) 000-0000;
with a copy to such other place as Landlord may from time to time designate by
notice to Tenant.
22.02 All notices shall be deemed received (i) upon receipt if sent
via hand delivery or by facsimile, (ii) one day after being sent via overnight
courier service, or (iii) five (5) days after being deposited in the mail in
accordance with the foregoing provisions.
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ARTICLE XXIII
WAIVER
23.01 The waiver by either party of any breach of any term,
covenant, or condition herein contained shall not be deemed to be a waiver of
such term, covenant, or condition or any subsequent breach of the same or any
other term, covenant, or condition herein contained. The subsequent acceptance
of rent hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach by Tenant of any term, covenant, or condition of this Lease,
other than the failure of Tenant to pay the particular rental so accepted,
regardless of Landlord's knowledge of such preceding breach at the time of
acceptance of such rent.
ARTICLE XXIV
EFFECT OF HOLDING OVER
24.01 If Tenant should remain in possession of the Leased Premises
after the expiration of the Lease Term and without executing a new lease, except
as provided in Section 9.03 above, then such holding over shall be construed as
a tenancy from month to month, subject to all the conditions, provisions, and
obligations of this Lease insofar as the same are applicable to a month to month
tenancy, except that the Base Rent payable pursuant to Section 3.01 hereof shall
be 115% of the Base Rent payable pursuant to said Section 3.01 during the month
in which such expiration occurs.
ARTICLE XXV
SUBORDINATION
25.01 At Landlord's request, Tenant shall subordinate its rights
under this Lease to (i) the lien of any first mortgage or first deed to secure
debt executed in favor of the Landlord's Mortgagee, and (ii) the interest of any
ground lessor; provided, however, as a condition to any subordination that
Landlord requests, Landlord's Mortgagee and each such ground lessor must execute
an agreement in favor of, and in form satisfactory to, Tenant whereby it agrees
(i) not to disturb Tenant's quiet possession of the Premises so long as no Event
of Default hereunder has occurred and is continuing, (ii) to permit any proceeds
paid in respect of the insurance Landlord maintains in force in accordance with
the terms of Article XIV to be used for the restoration of the Premises and
otherwise applied as provided in this Lease, and (iii) to permit any
condemnation award paid in connection with a taking of any part of the Premises
or any proceeds of a sale made in lieu of the condemnation of a part of the
Premises to be used for the repair and alteration of the remainder of the
Premises as provided in this Lease. For the benefit of such Mortgagee, Tenant
will further agree in the instrument by which Tenant accomplishes the
subordination of its rights under this Lease that, if proceedings are brought
for foreclosure of the lien of the mortgage or deed to secure debt if Landlord's
Mortgagee causes the exercise of the power of sale set forth in the mortgage or
deed to secure debt, Tenant shall attorn to the purchaser upon the conclusion of
the foreclosure or sale and recognize the purchaser as the landlord under this
Lease. In relation to the foregoing, Tenant acknowledges and agrees that the
form of Subordination, Non-Disturbance and Attornment Agreement attached hereto
as Exhibit "D" (the "SNDA") is an example of a form of a Subordination,
Non-Disturbance and Attornment Agreement acceptable to Tenant.
25.02 Contemporaneously with the execution of this Lease, Landlord
shall cause each ground lessor, any Mortgagee of such ground lessor and
Landlord's Mortgagee now holding a lien that affects the Premises to execute in
favor of Tenant and deliver a SNDA satisfying the requirements set forth in
Section 25.01 above.
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ARTICLE XXVI
ESTOPPEL CERTIFICATE
26.01 Estoppel Certificate. Upon ten (10) days' notice from Landlord
to Tenant at any time after the Rental Commencement Date, but in no event more
than twice in any calendar year, Tenant shall deliver a certificate dated as of
the first day of the calendar month in which such notice is received, executed
by an appropriate officer, in such form as Landlord may reasonably require and
stating the following: (i) the Rental Commencement Date of this Lease; (ii) the
space occupied by Tenant hereunder; (iii) the Expiration Date hereof; (iv) a
description of the renewal and expansion options; (v) the amount of Base Rent
currently paid by Tenant under this Lease; (vi) the nature of any default or
claimed default hereunder by Landlord; (vii) that Tenant is not in default
hereunder nor has any event occurred which with the passage of time or the
giving of notice would become a default by Tenant hereunder; and (viii) such
other statements as Landlord may reasonably require. Landlord agrees that it
will execute a comparable estoppel certificate upon ten (10) days' notice from
Tenant.
ARTICLE XXVII
PARKING
27.01 Parking. Tenant shall be entitled to the exclusive use,
without restriction, of all of the parking spaces, trailer storage spaces and
paved areas, including truck courts, located within the Leased Premises. All
such parking and storage spaces shall be provided for on the Leased Premises in
accordance with the Final Plans and Specifications (as defined in the Work
Letter Agreement).
ARTICLE XXVIII
BROKERAGE COMMISSIONS
28.01 Landlord and Tenant acknowledge that CB Xxxxxxx Xxxxx
("Broker") has represented Tenant in connection with this Lease. Broker's
commission, however, shall be payable by Landlord. Landlord shall pay to Broker
a leasing commission in an amount as set forth in a separate agreement between
Broker and Landlord.
28.02 Landlord and Tenant each represents and warrants to the other
that it has not dealt with any broker, agent, commission salesman or other
person (other than Broker) in the negotiations for and procurement of this Lease
and of the Leased Premises and that no commissions, fees, or compensation of any
kind are due and payable in connection herewith to any broker, agent, commission
salesman or other person (other than Broker) as a result of any such dealings.
Landlord and Tenant each hereby agrees to indemnify the other and hold the other
harmless from and against any and all claims, suits or judgments (including
without limitation, reasonable attorneys' fees and court costs incurred in
connection with any such claims, suits or judgments or in the enforcement of
this indemnity) for any fees, commissions or compensation of any kind which
arise out of or in any way connected with any claimed dealings or relationship
with the indemnifying party. This indemnity shall survive the termination of
this Lease.
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ARTICLE XXIX
TENANT FINANCING AND WAIVER OF LANDLORD'S LIEN
29.01 Tenant Financing. Notwithstanding anything contained herein to
the contrary, Tenant shall have the right at any time to encumber all or any
part of its interest in this Lease, or in its equipment or trade fixtures
located at the Leased Premises with a lien to secure financing.
29.02 Waiver of Landlord's Lien. Landlord agrees, upon Tenant's
request, to execute and deliver to Tenant any waiver of lien and/or waiver of
ownership rights, which may be reasonably requested by any conditional sales
vendor, lessor, or chattel mortgagee, in regard to any furniture, trade
fixtures, equipment, or other articles of personal property of Tenant from time
to time installed by Tenant at its expense in the Leased Premises (whether owned
by or leased to Tenant), and Landlord further agrees to obtain similar releases
or waivers from any ground lessor and Mortgagee of all or any portion of the
Premises.
ARTICLE XXX
DISPUTE RESOLUTION
30.01 Dispute Resolution.
(a) If disputes arise between Landlord and Tenant
regarding (i) the interpretation of this Lease, (ii) the reasonableness of any
action taken or judgment that either party makes in any instance where that
party has agreed in this Lease to be reasonable in taking that action or making
that judgment, (iii) the reasonableness of any cost or expense that one party
seeks to charge the other in accordance with the terms of this Lease, (iv) the
extent of the abatement or adjustment in Base Rent or Additional Rent that
should occur by virtue of any provision of this Lease, or (v) whether either
party has defaulted in respect of any of the obligations it has undertaken under
the terms of this Lease, Landlord and Tenant may not initiate litigation to
resolve those disputes, but shall attempt in good faith to resolve those
disputes in the manner prescribed below. The parties irrevocably waive any and
all rights to the contrary. In the case of the last category of disputes listed
above, the parties will employ the procedures set forth in this Article XXX if
one party denies in good faith the other's allegation that it has defaulted in
respect of any of the obligations it has undertaken under the terms of this
Lease and, until the resolution of that dispute in accordance with the
procedures set forth in this Article XXX, the party alleging the occurrence of
the default may not exercise any remedy available to it in connection with a
default of the nature alleged other than the remedy of performing the delinquent
obligation on behalf of the denying party. Without intending to limit the
generality of the preceding sentence, the parties intend that, in the case of
Tenant's good faith denial that it has defaulted with respect to any of the
obligations it has undertaken under the terms of this Lease, Landlord may not
seek to gain possession of the Premises by initiating suit in the court having
jurisdiction over summary ejectment, forcible detainer, unlawful detainer or
other similar actions involving the Premises or otherwise until the parties have
employed the provisions set forth in this Article XXX. If the outcome of the use
of those procedures is either an acknowledgment by Tenant of its default or an
arbitrator's determination that Tenant is in default in respect of one or more
of its obligations, Landlord may then exercise any remedies available to it,
including the initiation of suit in the Court to regain possession of the
Premises and Tenant's acknowledgment of default or the arbitrator's
determination will be conclusive on the issue of Landlord's entitlement to
possession. If a party denies in good faith the other's allegation that it has
defaulted in respect of any of the obligations it has undertaken under the terms
of this Lease and initiates the dispute resolution procedures set forth in this
Article prior to the expiration of any grace period established with respect to
that alleged default under the terms of this Lease, that action win extend that
grace period by the amount of time during which the
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parties are observing the procedures set forth in this Article. The procedures
that the parties will use to resolve disputes to which this Article applies are
as follows:
(i) Either party may give the other written
notice of any dispute not resolved in the normal course of business. Officers or
managers of both parties holding positions within their respective organizations
at least one level higher than the personnel that have previously been involved
in the dispute must meet at a mutually acceptable time and place within ten (10)
days after the date of the delivery of the notice of dispute and as often after
that initial meeting as they reasonably consider necessary for the purpose of
exchanging relevant information and attempting to resolve the dispute.
(ii) If either the persons specified in division
(i) above fail to meet in accordance with the requirements of that division or,
having met, those persons fail to resolve the dispute on behalf of the parties
for whom they are respectively employed within thirty (30) days after the date
of the delivery of the notice of dispute, the personnel previously involved in
the dispute shall promptly prepare and exchange with each other memoranda, which
state the issues in dispute and each party's position in the dispute, which
summarize the negotiations that have occurred in connection with efforts to
resolve the dispute, and to which they attach all documentation they consider
relevant. Immediately following the exchange of those memoranda, the involved
personnel shall furnish copies of the memoranda prepared on behalf of both
parties to senior executives within their respective organizations that have the
authority to settle the dispute. Those senior executives shall meet for
negotiations at a mutually agreed time and place prior to the date that is
forty-five (45) days after the date of the delivery of the notice of dispute.
(iii) If Landlord's organization does not have
multiple layers of management, Landlord will comply with the foregoing procedure
if a person that directly or indirectly holds an equity interest in Landlord
participates in the discussions contemplated in that procedure.
(b) If the senior executives to whom the dispute is
referred fail to resolve the dispute within thirty (30) days after the date of
the exchange of the position memoranda between the parties, Landlord and Tenant
shall attempt in good faith to resolve the dispute in accordance with the Center
for Public Resources Model ADR Procedures for the Mediation of Business
Disputes.
(c) If use of the mediation procedures described in
paragraph (b) above fails to resolve the dispute within sixty (60) days after
the initiation of those procedures, Landlord and Tenant shall finally settle the
dispute by means of arbitration conducted expeditiously in accordance with the
Center for Public Resources Rules for Non-Administered Arbitration of Business
Disputes, with each party selecting one arbitrator and the two chosen
arbitrators selecting a third. The United States Arbitration Act, 9 U.S.C. ss. I
16, will govern the arbitration and any court having jurisdiction of the dispute
may enter judgment upon the award the arbitrators render. The place of the
arbitration will be Atlanta, Georgia. If the dispute involves the payment of
compensation by one party to the other, the parties shall empower the
arbitrators to award only compensatory damages within the upper and lower limits
imposed by mutual agreement of the parties. The prevailing party in any such
arbitration shall be entitled to all fees, expenses and costs of the arbitration
proceeding, including the fees of its appointed arbitrator.
(d) If any person involved in the meetings contemplated
in paragraph (a) above wishes an attorney to accompany him or her to any of
those meetings, that person shall give written notice of that intention to the
other party at least three business days in advance of the meeting that the
attorney will attend and the other party may also cause an attorney representing
its interests to be present at that meeting.
27
(e) Landlord and Tenant may extend any deadline specified
in this Article by mutual agreement.
(f) Landlord and Tenant shall treat all negotiations
conducted in accordance with the requirements of this Article, including,
without limitation the exchange of position memoranda, as confidential and as
compromise and settlement negotiations for purposes of the Federal Rules of
Evidence and the rules of evidence of any court having jurisdiction over the
dispute.
(g) If multiple disputes are pending concurrently,
Landlord and Tenant may, upon agreement, consolidate those disputes for purposes
of the mediation and arbitration stages described above.
(h) Tenant may not defer the payment of any Base Rent or
Additional Rent that becomes due under the terms of this Lease that exceeds the
amount of any offset Tenant alleges to be due it pending the resolution of a
dispute with Landlord in accordance with the terms of this Article.
(i) The procedures specified in this Article are the sole
and exclusive procedures for the resolution of disputes to which this Article is
intended to apply. Either party may seek a preliminary injunction or other
preliminary judicial relief, however, if, in that party's judgment, that action
is necessary for the sole purpose of avoiding irreparable harm. Despite that
action, the parties shall continue to participate in good faith in the
procedures set forth above. All applicable limitations periods will be tolled
while the procedures specified above are pending. The parties shall take all
action appropriate to accomplish that tolling.
(j) The provisions of this Article XXX will survive the
expiration of the Term or any earlier termination of this Lease.
ARTICLE XXXI
MISCELLANEOUS PROVISIONS
31.01 Word Construction. Whenever the singular number is used in
this Lease and when required by the context, the same shall include the plural,
and the masculine gender shall include the feminine and neuter genders, and the
word "person" shall include corporation, firm or association.
31.02 Change of Control. Tenant has the right to immediately
terminate this Lease upon any change in the majority decision making authority,
ownership or voting control of Landlord's capital stock or limited liability
partnership or membership interests or assets, occurring at any time prior to
completion by Landlord of the Improvements and delivery to Tenant of the final,
unrestricted Certificate of Occupancy and possession of the Premises in
accordance with the terms of the Work Letter Agreement, unless Tenant receives
written evidence satisfactory to Tenant that Xxxx X. Xxxxxx, L.L.C. remains at
all times fully liable for all of Landlord's obligations under this Lease.
Landlord shall notify Tenant in writing at least thirty (30) days before the
occurrence of any change in control of the decision making authority, capital
stock, business or assets of Landlord.
31.03 Financial Information. On or before the effective date hereof,
Landlord must provide to Tenant a current financial statement prepared in
accordance with generally accepted accounting principles and audited by an
independent, certified public accountant. In addition, Landlord must provide to
Tenant, (i) on an annual basis, if requested by Tenant, annual unaudited
financial statements, and (ii) from time to time, any other financial
information that Tenant reasonably requests.
28
31.04 Headings, Titles. The headings or titles to paragraphs of this
Lease are not a part of this Lease and shall have no effect upon the
construction or interpretation of any part of this Lease.
31.05 Entire Agreement. This instrument, and all exhibits and
schedules attached hereto, contain all of the agreements and conditions made
between the parties to this Lease and may not be modified orally or in any other
manner than by agreement in writing signed by all parties to this Lease.
31.06 Time of Essence. Time is of the essence of each term and
provision of this Lease.
31.07 Successors and Assigns. The terms and provisions of this Lease
shall be binding upon and inure to the benefit of the heirs, executors,
administrators, successors, and assigns of Landlord and Tenant.
31.08 Consents and Approvals. Where the consent, approval or
acceptance of a party is required, the party agrees that such consent, approval
or acceptance shall not be unreasonably withheld, conditioned or unreasonably
delayed.
31.09 Relationship of Parties. Nothing contained herein shall be
deemed or construed by the parties hereto, nor by any third party, as creating
the relationship of principal and agent, partnership, or joint venture between
the parties hereto. It is understood and agreed that neither the method of
computation of the rent nor any other provision contained herein, nor any acts
of the parties hereto, shall be deemed to create any relationship between the
parties hereto other than the relationship of landlord and tenant.
31.10 Governing Law. This Lease shall be governed by Georgia law.
31.11 Memorandum of Lease. Upon the request of Landlord or Tenant,
both parties shall join in the execution of a memorandum or so-called "short
form" of this Lease for the purpose of recordation. Said memorandum or short
form of this Lease shall describe the parties, the Leased Premises and the Lease
Term, the renewal and expansion options, and shall incorporate this Lease by
reference. Said memorandum or short form of this Lease shall not include the
economic terms of this Lease unless both parties consent.
31.12 Covenant of Quiet Enjoyment. Landlord hereby covenants and
agrees that if Tenant shall perform all of the covenants and agreements herein
stipulated to be performed on Tenant's part, Tenant shall at all times during
the continuance hereof have the peaceable and quiet enjoyment and possession of
the Leased Premises.
31.13 Sale by Landlord. In no event shall Landlord transfer any of
Landlord's leasehold or ownership title to or interest in all or any part of the
Premises before construction of the Premises is complete and the final,
unrestricted Certificate of Occupancy and possession of the Premises have been
delivered to Tenant in accordance with the Work Letter Agreement, unless Tenant
receives written evidence satisfactory to Tenant that Xxxx X. Xxxxxx, L.L.C.
remains fully liable for all obligations of Landlord under this Lease. In the
event of any transfer of Landlord's ownership interest in the Premises
thereafter, Landlord shall remain liable to Tenant for the payment and
performance of all obligations of Landlord accruing on or before the date of
such transfer but shall be relieved of all liability for obligations arising
under this Lease and accruing after the consummation of such transfer, and the
transferee by acceptance of such transfer shall be deemed to have assumed and
agreed to perform all obligations of Landlord accruing hereunder during the
period of its ownership.
29
31.14 Conditions Precedent. Notwithstanding anything to the contrary
contained in this Lease, the obligation of Tenant to accept delivery of the
Premises upon tender thereof as hereinabove provided shall be and is hereby made
subject to and contingent upon the satisfaction of the following express
conditions precedent:
Landlord shall have delivered to Tenant the title, survey,
SNDAs, authority and other evidence as and when required by
Article VII and Article XXV above, including without
limitation, evidence satisfactory to Tenant that Landlord is
the owner in fee simple of all the Land, subject only to such
encumbrances and exceptions to title as are satisfactory and
acceptable to Tenant, that such Land is zoned to permit the
use and occupancy of the Premises for the purposes and in the
manner contemplated by this Lease, and that all governmental
permits and approvals necessary to Tenant's use and occupancy
have been obtained or will in due course be obtained.
31.15 Exhibits. All Exhibits and Schedules referred to in this Lease
are attached hereto and by this reference made a part hereof.
31.16 No Presumption Against Drafter. Landlord and Tenant
understand, agree, and acknowledge that:
(a) This Lease has been freely negotiated by both
parties; and
(b) That, in any controversy, dispute, or contest over
the meaning, interpretation, validity, or enforceability of this Lease or any of
its terms or conditions, there shall be no inference, presumption, or conclusion
drawn whatsoever against either party by virtue of that party having drafted
this Lease or any portion thereof.
31.17 Counterparts. This Lease (including the Work Letter Agreement)
may be executed in any number of counterparts, each of which shall be an
original but all of which, when taken together, shall constitute one and the
same instrument.
31.18 Special Stipulations. CERTAIN SPECIAL STIPULATIONS ARE SET
FORTH ON THE RIDER TO LEASE WHICH IS ATTACHED HERETO AS EXHIBIT "G" AND BY
REFERENCE MADE A PART HEREOF. IN THE EVENT OF ANY CONFLICT BETWEEN ANY PROVISION
SET FORTH ON SAID RIDER AND ANY OTHER PROVISION CONTAINED IN THIS LEASE, THE
PROVISION SET FORTH IN SAID RIDER SHALL GOVERN.
[Signatures Begin on Next Page]
30
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed by its proper officers, effective as of the date first above
written.
LANDLORD:
Signed, sealed and delivered as to Landlord, in the XXXX X. XXXXXX, L.L.C., a Georgia Limited Liability
Presence of: Company
-------------------------------------------- By: 1998 AUGUSTUS PARTNERS, L.P., a Georgia Limited
Unofficial Witness Partnership, Manager
-------------------------------------------- By: 2001 WINSTON MANAGEMENT COMPANY, LLC, a
Notary Public Georgia Limited Liability Company, its
General Partner
By: [SEAL]
---------------------------------
Xxxx X. Xxxxxx, Member
By: [SEAL]
---------------------------------
----------------, Member
TENANT:
Signed, sealed and delivered as to Landlord, in the XXXXXXX FURNITURE COMPANIES, INC., a Maryland corporation
Presence of:
By:
-------------------------------------------- -----------------------------------------------
Unofficial Witness Name:
---------------------------------------------
Title:
--------------------------------------------
--------------------------------------------
Notary Public
31
EXHIBIT "A"
ATTACH LEGAL DESCRIPTION OF LAND
(TO BE PROVIDED BY LANDLORD)
1
EXHIBIT "B"
WORK LETTER AGREEMENT WITH SCHEDULES 1-3
THIS WORK LETTER AGREEMENT is entered into as of the 26th day of July, 2001, by
and between XXXX X. XXXXXX, L.L.C. ("Landlord") and XXXXXXX FURNITURE COMPANIES,
INC. ("Tenant").
ARTICLE I
RECITALS:
1.01 Concurrently with the execution of this Work Letter Agreement, Landlord
and Tenant have entered into a Lease (the "Lease") covering certain
premises (the "Leased Premises") which is more specifically specified
and defined in the Lease. Any and all defined terms, not specifically
defined herein shall have the meaning set forth in the Lease as if
specifically included and set forth in this Work Letter Agreement.
1.02 This Work Letter Agreement has been executed for the purpose of
describing and providing the requirements, standards, and
specifications and a timetable for Landlord's construction of the
Improvements and preparation of the Leased Premises for Tenant's use
and occupancy.
1.03 In consideration of the mutual covenants hereinafter contained,
Landlord and Tenant hereby agree as follows:
ARTICLE II
CONSTRUCTION OF IMPROVEMENTS
2.01 PLANS AND SPECIFICATIONS; SPECIAL PROJECT CONDITIONS.
(a) Landlord shall furnish, at Landlord's sole cost and expense,
all of the material, labor and equipment necessary for the design and
construction of the Improvements in accordance with the terms of this Agreement.
Landlord shall design and construct the Improvements in a good and workmanlike
manner in accordance with (i) the Preliminary Plans and Specifications prepared
by Macgregor Associates Architects (the "Design Firm") and described in Exhibit
"E" attached to the Lease (the "Preliminary Plans and Specifications," and (ii)
the Final Plans and Specifications described and defined below, and to be
attached as Exhibit "F" to the Lease.
(b) Landlord must cause the final plans and specifications to be
prepared by the Design Firm in accordance with the comments and revisions
mutually agreed to by Tenant and Landlord with respect to the Preliminary Plans
and Specifications, and submit those final plans and specifications for Tenant's
approval on or before September 30, 2001, as provided in the Construction
Schedule attached hereto as Schedule 1 and incorporated herein and in the Lease
by this reference (the "Construction Schedule"). Upon Tenant's approval, such
proposed final plans and specifications will constitute the "Final Plans and
Specifications."
(c) Neither Landlord nor Tenant will withhold its approval, except
for just and reasonable cause, and neither such party will act in an arbitrary
or capricious manner with respect to the approval of the Final Plans and
Specifications. Only the signature or initials of Landlord and an authorized
officer of Tenant will evidence approval of the Final Plans and Specifications.
The parties will attach copies of the
1
Final Plans and Specifications to each execution counterpart of the Lease as
Exhibit "F." Following its attachment to the Lease, Exhibit "F" will supersede
Exhibit "E", except as to matters that are not related to the design and
construction techniques and processes that will apply to the construction of the
Improvements and that Exhibit "F" does not expressly and specifically supersede.
(d) Landlord must appoint competent personnel to work with the
Design Firm and Tenant in the preparation of the Final Plans and Specifications,
and Tenant must appoint an employee of Tenant to review the plans and
specifications that the Design Firm and Landlord propose for adoption as the
Final Plans and Specifications so as not to delay unreasonably the completion of
the Improvements. Landlord shall provide Tenant with "as-built" drawings of the
Improvements within thirty (30) days after substantial completion. If Landlord
fails to do so, Tenant may withhold Base Rent until Landlord provides those
drawings.
(e) In addition to the foregoing, Landlord shall complete the
construction of the Improvements in accordance with (i) all applicable statutes
and building codes, governmental rules, regulations and orders, and recorded
covenants, conditions and restrictions affecting title to the Premises ("Legal
Requirements") and (ii) the Tenant's "Special Project Conditions" attached
hereto as Schedule 2 and incorporated herein and in the Lease by this reference.
2.02 SUBSTANTIAL COMPLETION
(a) Landlord shall commence construction of the Improvements on or
before August 1, 2001; the commencement of erosion control, site excavation and
fill activities will constitute the commencement of construction for purposes of
the foregoing requirement. Landlord shall diligently proceed with the
construction of the Improvements and shall substantially complete that
construction, and secure a certificate of occupancy (the "Certificate of
Occupancy") permitting Tenant's lawful occupancy and full and unrestricted use
of the Improvements and deliver possession thereof to Tenant on or before July
1, 2002. Landlord may satisfy the requirement for securing a Certificate of
Occupancy by securing a temporary or conditional certificate of occupancy so
long as (i) Tenant determines that the condition of the Improvements in the
absence of those items of construction that Landlord must complete as a
condition to the issuance of a final, unrestricted Certificate of Occupancy is
adequate for the conduct of Tenant's business on the Premises, and (ii) that the
ongoing construction activity that will be necessary in order for Landlord to
secure the issuance of a final, unrestricted Certificate of Occupancy will not
materially, adversely affect Tenant's fixturing and installation of Tenant's
equipment and improvements or stocking of Tenant's product and inventory, or
otherwise commencing business operations in the Premises. If Landlord satisfies
the requirement for securing a Certificate of Occupancy by securing a temporary
or conditional certificate of occupancy under the circumstances described above,
Landlord must secure the issuance of a final, unrestricted Certificate of
Occupancy by no later than October 1, 2002, as provided in the Construction
Schedule.
(b) If delays in the commencement or completion of the
construction of the Improvements occur by reason of acts or omissions on the
part of Tenant or those acting for or under the direction of Tenant, casualties,
acts of God (other than inclement weather), force majeure, acts of the public
enemy, governmental embargo restrictions, or action or inaction on the part of
public utilities or local, state or federal governments affecting the work (all
of which delays are collectively referred to in this Agreement as "Excused
Delays" and those that occur by reason of acts or omissions on the part of
Tenant or those acting for or under the direction of Tenant are collectively
referred to in this Agreement as "Tenant Delays"), the dates established above
for the commencement and completion of the construction of the Improvements will
be postponed by the aggregate duration of the Excused Delays. Non-availability
or shortages of labor or materials, local strikes, lockouts and inclement
weather will not constitute Excused
2
Delays and will not be cause for extending the date for completion and delivery
of the Improvements to Tenant. Landlord shall also complete all "punch list
items" within thirty (30) days after Landlord substantially completes
construction of the Improvements and, if Landlord fails to do so, Tenant may
complete those punch list items and offset the costs Tenant incurs in doing so
against subsequently accruing installments of Base Rent becoming due under the
terms of the Lease.
(c) Except as otherwise specifically provided in Section 2.02 (b)
above with respect to Excused Delays and Tenant Delays, Tenant has no obligation
to pay Base Rent or Additional Rent until Landlord completes construction of the
Improvements in accordance with the Final Plans and Specifications, this
Agreement, the Special Project Conditions and all Legal Requirements, secures
the Certificate of Occupancy and tenders possession of the Improvements to
Tenant. If, prior to Landlord's completion of the Improvements, the Improvements
are partially ready for occupancy, Tenant may, but need not, occupy that portion
of the Improvements that is ready for occupancy and, in the event of such
partial occupancy, except for the payment of Base Rent and Additional Rent, the
terms of this Lease will apply to that occupancy. Landlord must keep Tenant
informed of the progress of Landlord's construction of the Improvements and must
give Tenant written notice of the date upon which Landlord anticipates
substantial completion of construction, at least forty-five (45) days in advance
of that projected date. Commencing thirty (30) days in advance of that projected
date, but in no event later than April 1, 2002, Tenant's employees and
contractors may enter the Improvements for the purpose of installing, in
accordance with the Special Project Conditions and Legal Requirements, Tenant's
racks, machinery, equipment, fixtures and other personal property. Tenant may
exercise that privilege only if Tenant complies with the requirements of
Landlord's Safety Program referenced in Section 8.04 of the body of this Lease,
and ensures that its employees and contractors do not interfere with Landlord's
completion of the construction of the Improvements. Entry by Tenant's employees
and contractors for this limited purpose will not constitute Tenant's acceptance
of the Improvements or give rise to any obligation to pay Base Rent or
Additional Rent with respect to the Improvements.
2.03 CONSTRUCTION WARRANTY
(a) Landlord shall incorporate only new materials and equipment
into the construction of the Improvements. Landlord guarantees the Improvements
against defective design, workmanship and materials, latent or otherwise, for a
period of one (1) year from the Rental Commencement Date (the "Warranty
Period"). Landlord also guarantees the foundations, slab, structural frame, roof
deck and exterior walls of the Improvements against defective design,
workmanship and materials, latent or otherwise, for a period of three (3) years
from the Rental Commencement Date (the "Structural Warranty Period"). By virtue
of the foregoing guaranties, Landlord shall repair or replace, at its sole cost
and expense (unless and to the extent any such defect is caused solely by
Tenant's gross negligence or willful misconduct), any defective item occasioned
by defective design, workmanship or materials that Tenant discovers during the
Warranty Period or the Structural Warranty Period, as the case may be.
Notwithstanding the foregoing, on the date that Landlord substantially completes
the construction of the Improvements, secures the Certificate of Occupancy and
tenders possession of the Premises to Tenant, Landlord must deliver to Tenant
originals of all continuing assignable guaranties and warranties (whether
express or implied) issued or made in connection with the construction of the
Improvements and must assign to Tenant, free and clear of all liens and
encumbrances, Landlord's interest in those guaranties and warranties by means of
a duly executed and acknowledged assignment in form and substance satisfactory
to Tenant. From and after the expiration of the Warranty Period or the
Structural Warranty Period, as the case may be, Landlord shall cooperate with
Tenant in Tenant's enforcement, at Tenant's sole cost and expense, of any
express warranties or guaranties of workmanship or materials given by
subcontractors, architects, draftsmen, or materialmen that guarantee or warrant
against defective design, workmanship or materials for a period of time in
excess of the Warranty Period or the Structural Warranty Period, as the
3
case may be. The obligations Landlord undertakes under the terms of this Section
2.03 are in addition to the maintenance and repair obligations that Landlord
undertakes under other terms of the Lease.
(b) Tenant's making of a claim for repair or replacement of a
defective item or condition in the Improvements will toll the running of the
Warranty Period or the Structural Warranty Period, as the case may be, with
respect to the item that is the subject of that claim, and the warranties set
forth in Section 2.03 (a) will remain in effect as to that item until Landlord
properly corrects it even though the Warranty Period or the Structural Warranty
Period would otherwise have expired. If defects covered by the warranties set
forth in Section 2.03(a) deprive Tenant of possession of the Building or
otherwise constructively evict Tenant from the Building, all installments of
Base Rent and Additional Rent becoming due under the terms of the Lease will
xxxxx and will not be due and payable for the entire period of that
dispossession or constructive eviction. If the dispossession or constructive
eviction occurs with respect to only a portion of the Building, the Base Rent
and Additional Rent will partially xxxxx with the abatement being equitably
calculated on the basis of the area and value of that portion of the Building
from which Tenant is dispossessed or constructively evicted. If such
dispossession or constructive eviction continues for more than one hundred
twenty (120) days, Tenant has the right, in addition to all other remedies
available to Tenant at law or in equity, to terminate the Lease without any
liability whatsoever to Landlord. Tenant will exercise that right, if at all, by
delivering written notice to Landlord prior to the time the dispossession or
constructive eviction ends.
(c) Landlord shall complete construction and equipping of the
Improvements in accordance with the terms of the Lease, this Agreement, the
Construction Schedule, the Special Project Conditions, all Legal Requirements
and the Final Plans and Specifications, free of mechanic's liens or other liens,
and shall defend, indemnify and hold Tenant harmless from and against all
claims, actions, losses, costs, damages, expenses, liabilities and obligations,
including, without limitation, reasonable attorneys' fees, resulting from (i)
the assertion or filing of any claim for amounts alleged to be due to the
claimant for labor, services, materials, supplies, machinery, fixtures or
equipment furnished in connection with the construction of the Improvements,
(ii) the foreclosure of any mechanic's or materialmen's lien that allegedly
secures the amounts allegedly owed to the claimant, or (iii) any other legal
proceedings initiated in connection with that claim.
2.04 CHANGE ORDERS
(a) Without invalidating the Lease, Tenant may order changes in
the Final Plans and Specifications consisting of additions, deletions or other
revisions to the Improvements and extensions of the progress schedule. Except as
expressly provided below, the parties will authorize all changes by signing
change orders ("Change Orders") in the form of Schedule 3 attached to this Work
Letter Agreement and, upon the signing of a Change Order, Landlord shall
prosecute the changes in accordance with the requirements of that Change Order.
For the purposes of the Lease and this Work Letter Agreement, the term
"Change Order Cost" means the net amount by which the estimated aggregate cost
Landlord will necessarily incur in connection with the construction of the
Improvements, including, without limitation, the costs of labor and material,
architectural and design fees, interest and other carrying costs, and sales or
other excise taxes Landlord must pay in connection with the purchase of
materials and services, will change by reason of the implementation of a change
Tenant requests with respect to the Final Plans and Specifications, and shall
be, at Tenant's option, either (i) paid by Tenant, or (ii) included in the
calculation of Base Rent payable under the Lease by adding to the amounts set
forth in Section 3.01 of this Lease, the product obtained by the Base Rent
Applicable Yield (as defined below), multiplied by the sum of all Change Order
Costs set forth in fully executed Change Orders (the "Aggregate Change Order
Cost"). If the Aggregate Change Order Cost is a negative number, thereby
reflecting that Landlord will realize savings
4
in the estimated aggregate cost Landlord will necessarily incur in connection
with the construction of the Improvements by reason of the implementation of
Tenant's requested changes, the parties will proportionately diminish the Base
Rent allocable to the Improvements to reflect that cost savings.
As used herein, the term "Base Rent Applicable Yield" shall mean (i) if
the Aggregate Change Order Cost is a negative number, 9.09% or (ii) if the
Aggregate Change Order Cost is a positive number, 10.5% for the first
$200,000.00 of the Aggregate Change Order Cost, and 11.5% for the Aggregate
Change Order Cost in excess of $200,000.00.
(b) Before implementing any change to the design of the
Improvements that Tenant requests after approval of the Final Plans and
Specifications, Landlord must submit to Tenant in the form of a proposed Change
Order, a statement of the Change Order Cost that will occur by virtue of that
change and a statement of the terms and conditions under which Landlord will
undertake to implement Tenant's requested change, including, without limitation,
the effect that implementation of the requested change will have on the
anticipated date for Landlord's completion of the Improvements. Until Tenant
signs that proposed Change Order, Landlord has neither obligation nor authority
to proceed to implement the requested change. Each fully-executed Change Order
will become part of the Final Plans and Specifications. A delay occurring with
respect to Landlord's completion of the Improvements by virtue of the review of
a design change that Tenant requests, the negotiation of a mutually acceptable
Change Order in connection with that request, and the implementation of the
requested change will constitute a Tenant Delay. If the Aggregate Change Order
Cost is a positive number, unless and to the extent that Tenant elects to pay
all or any portion thereof in cash as provided in paragraph 2.04(a) above, the
parties will include that sum in the Base Rent and amortize it over the initial
Term as referenced above.
(c) In the event Tenant elects to pay all or any portion of the
Aggregate Change Order Cost in accordance with paragraph 2.04(a) above, Tenant
will pay such amount to Landlord upon completion of construction of the
Improvements and delivery by Landlord to Tenant of (i) the final, unrestricted
and permanent Certificate of Occupancy and (ii) an application for payment or
invoice for such amount.
2.05 INSURANCE
Throughout the period between the date on which Landlord commences
construction of the Improvements and the date on which Landlord completes the
construction of the Improvements, secures and presents to Tenant the final,
unrestricted Certificate of Occupancy, and tenders possession of the
Improvements to Tenant, Landlord shall maintain in force with respect to the
Improvements a policy of multiple peril ("all-risk") builder's risk insurance
that has been written by an insurer reasonably satisfactory to Tenant on a
completed value basis, in an amount equal to the full replacement cost of the
Improvements and that contains no exclusions from coverage that Tenant
determines to be objectionable. That policy must name Tenant as an additional
insured and must assure Tenant that its coverage will continue for Tenant's
benefit notwithstanding any act or omission on Landlord's part. That policy must
provide that no cancellation, surrender or material change will become effective
unless Tenant receives written notice at least thirty (30) days in advance of
the time at which that cancellation, surrender or material change becomes
effective. The form of that policy must comply with the requirements of Section
14.05 of the body of the Lease and otherwise be reasonably satisfactory to
Tenant.
2.06 FAILURE TO TIMELY COMPLETE AND DELIVER
As provided in Section 2.03 of the Lease, if Landlord fails, for any
reason, including Excused Delays, to complete the construction of the
Improvements, secure and present to Tenant the final, unrestricted and permanent
Certificate of Occupancy and tender possession of the Improvements to
5
Tenant by October 1, 2002 (the "Outside Delivery Date"), the Rental Commencement
Date shall be deferred until January 1, 2003.
2.07 FINANCING
Landlord has advised Tenant that Landlord will seek third party funding
for the design and construction of the Improvements through variable rate demand
notes under the auspices of the Development Authority of Xxxxxxx County,
Georgia; provided, however, Landlord's obligations under this Lease are not
subject to or contingent upon such funding or any other third party financing or
approval thereof.
ARTICLE III
TIMETABLE
3.01 SUBSTANTIAL COMPLETION
As referenced above, attached to this Work Letter Agreement as Schedule
2 is the Construction Schedule. Landlord and Tenant shall use their diligent
good faith efforts to ensure construction of the Leased Premises remains on
schedule in accordance with the Construction Schedule.
3.02 INSPECTION AND PUNCHLIST
As referenced in Section 2.02 above, upon receipt of Landlord's notice
of substantial completion of the Improvements, Tenant shall inspect the same.
Landlord shall demonstrate all systems, and the Design Team, Tenant and Tenant's
insurance carrier shall jointly prepare a punchlist. In addition to any and all
unfinished and incomplete items, the punchlist shall list minor and
insubstantial details of construction, necessary mechanical adjustments, and
needed finishing touches. Landlord shall commence to complete the punchlist
items within thirty (30) days after the punchlist is produced and shall
diligently pursue the work to completion.
ARTICLE IV
TENANT WORK
4.01 TENANT EARLY ACCESS
Landlord must afford Tenant and its consultants and contractors
reasonable access to the Leased Premises and Improvements during construction
for the purposes of inspecting the Improvements, rack installation and making
preparations for work that Tenant must undertake to ready the Improvements for
Tenant's use and occupancy. Landlord shall provide such access to Tenant as
reasonably requested but, in any event, on or before April 1, 2002, as indicated
on the Construction Schedule.
4.02 INSTALLATION OF TENANT'S FIXTURES
All construction work done by Tenant in the Leased Premises shall be
pursued diligently to completion and shall be performed in a good and
workmanlike manner, and in compliance with all applicable laws, including, but
not limited to, all OSHA requirements. Tenant covenants and agrees that all
contractors, subcontractors and other persons or entities performing work for
Tenant at the Leased Premises will carry (i) liability insurance in amounts
acceptable to Landlord, in Landlord's reasonable opinion, and (ii) worker's
compensation insurance in the amounts required by law.
6
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed under seal and delivered as of the day and year first above written.
LANDLORD:
XXXX X. XXXXXX, L.L.C., a Georgia Limited Liability Company
By: 1998 AUGUSTUS PARTNERS, L.P., a
Georgia Limited Partnership, Manager
By: 2001 WINSTON MANAGEMENT COMPANY, LLC, a Georgia
Limited Liability Company, its General Partner
By: [SEAL]
--------------------------------------
Xxxx X. Xxxxxx, Member
By: [SEAL]
--------------------------------------
----------------,Member
TENANT:
XXXXXXX FURNITURE COMPANIES, INC.
By:
-------------------------------------------------
Name:
--------------------------------------------
Title:
----------------------------------------------
7
XXXXXXX FURNITURE COMPANIES, INC.
S.E. REGIONAL DISTRIBUTION CENTER
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE (this "Agreement") is made and entered
into effective as of ____ day of November, 2001, by and between XXXX X. XXXXXX,
LLC, a Georgia limited liability company ("Landlord"), and XXXXXXX FURNITURE
COMPANIES, INC., a Maryland corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant are parties to that certain Lease
Agreement dated effective as of July 26, 2001, which is incorporated herein by
this reference and made a part hereof (hereinafter referred to as the "Lease"),
pursuant to which Landlord did lease to Tenant and Tenant did lease from
Landlord certain real property located in the City of Braselton, the G.M.D. 1765
of Xxxxxxx County, Georgia (the "Land"), together with all rights, easements and
appurtenances pertaining to the Land, and the industrial distribution facility
(the "Building") containing approximately 491,229 square feet of warehouse space
and 19,581 square feet of office/administration space and its related
Improvements, to be constructed by Landlord in accordance with the Lease and the
Work Letter Agreement attached thereto and incorporated therein (collectively
referred therein and herein as the "Leased Premises" or the "Premises"); and
WHEREAS, as referenced in Section 2 of Exhibit "G", Special
Stipulations, of the Lease, it was acknowledged by the parties that, as of
effective date of the Lease, Landlord was not the owner in fee simple of all or
any portion of the Land but, rather, had entered into binding contractual
obligations to acquire fee simple title to all of the Land, subject only to such
title exceptions as would be acceptable and approved by Tenant; and
WHEREAS, on or about the date hereof, rather than acquiring fee simple
title to the Land, Landlord has transferred and assigned its contractual rights
to acquire the Land to the Xxxxxxx County Industrial Authority ("Authority"),
and entered into a certain Lease Agreement with the Authority dated as of
_________, 2001 (herein, the "Authority Lease"), pursuant to which the Authority
shall and does lease the Land to Landlord and grants to Landlord an option to
purchase the Land and any improvements now or hereafter constructed thereon; and
WHEREAS, Landlord and Tenant desire to amend the Lease to evidence a
revision in and to the legal description of the Land resulting from Landlord's
acquisition transaction described above, and to provide for certain amendments
and modifications to the Lease necessary by reason and on account of such
acquisition transaction and the lease transaction with the Authority;
1
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter set forth and other good and valuable considerations, the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
1. RECITALS. The foregoing recitals are true and correct and
hereby incorporated by reference.
2. LEGAL DESCRIPTION OF THE LAND. Exhibit "A" attached to the
original Lease is hereby amended by deleting the existing Exhibit "A" in its
entirety and substituting in lieu thereof the Exhibit "A" attached hereto and by
this reference incorporated herein.
3. TRANSFER BY LANDLORD.
(a) Section 31.13 of the Lease specifically prohibits
Landlord from engaging in the transaction described in the foregoing recitals in
that it provides that "[i]n no event shall Landlord transfer any of Landlord's
leasehold or ownership title to or interest in all or any part of the Premises
before construction of the Premises is complete and the final, unrestricted
Certificate of Occupancy and possession of the Premises have been delivered to
Tenant in accordance with the Work Letter Agreement, unless Tenant receives
written evidence satisfactory to Tenant that Xxxx X. Xxxxxx, L.L.C. remains
fully liable for all obligations of Landlord under the Lease." Notwithstanding
the foregoing, Tenant acknowledges that Landlord has and will transfer its right
to acquire fee simple title in and to the Premises to the Authority, and then
lease the Premises from the Authority pursuant to the Authority Lease, and
Tenant hereby consents to such transaction, PROVIDED AND ON THE CONDITION THAT,
by its execution of this Agreement below as "Landlord", Xxxx X. Xxxxxx, L.L.C.
does hereby agree and confirm with Tenant that such Landlord shall and does at
all times remain fully, personally and unconditionally liable to Tenant for all
obligations and liabilities of Landlord under the Lease.
(b) Notwithstanding anything contained in the Authority
Lease to the contrary, Tenant shall have the continuing right and option, by
written notice to Landlord, to require and demand that Landlord exercise its
option to purchase the Premises from the Authority pursuant to and in accordance
with Section 7.1 of the Authority Lease, and Landlord hereby agrees to do so, at
Landlord's sole cost and expense and, within thirty (30) days of Tenant's
written request and demand, Landlord shall provide Tenant with evidence
reasonably acceptable to Tenant that Landlord is the sole owner of good and
marketable fee simple title in and to the Premises, subject only to such
encumbrances and exceptions to title as are or have been consented to and
approved by Tenant.
4. MEMORANDUM OF UNDERSTANDING. Attached to this Agreement as
Exhibit "B" and incorporated herein by this reference, is a true, correct and
complete copy of that certain Memorandum of Understanding dated effective as of
July 26, 2001 (the "MOU") by and among Tenant, Xxxxxxx County, Georgia (the
"County"), the Xxxxxxx County Chamber of Commerce, Inc. (the "Chamber"), the
Authority and Landlord, with respect to inter alia (i) a Regional Economic
Business Assistance Grant in the amount of $500,000.00 (herein, the XXXX Xxxxx")
to be applied to reduce the overall construction costs of the Improvements, and
(ii) a bond financing transaction between Landlord and the Authority pursuant to
the terms of which, for the
2
benefit of Tenant, the County agrees to xxxxx real and personal ad valorem taxes
on the Premises for a period of four (4) years, commencing with the tax year
2003. In connection the transactions contemplated by the MOU, Landlord and
Tenant hereby agree to amend and modify the Lease, as follows:
(a) XXXX XXXXX. If, for any reason, the XXXX Xxxxx is not
obtained, Landlord and Tenant agree that, effective as of the Rental
Commencement Date described in Section 2.02 of the Lease, the Base Rent set
forth in Section 3.01 of the Lease shall be automatically increased as follows:
Initial Term Increase in Annual Base Rent
------------ ----------------------------
Years 1-3 $50,000.00
Years 4-6 $52,600.00
Years 7-9 $56,000.00
Years 10-12 $59,100.00
Years 13-15 $62,500.00
The foregoing amounts shall be prorated to reflect
the amount, if any, of the XXXX Xxxxx received less than $500,000.00.
Moreover, in the event such Grant is not obtained,
the aggregate purchase price payable by Tenant for the Premises under Section
3(i) of Exhibit "G" to the Lease (with respect to Landlord's failure to expand
the Premises under the Expansion Option) shall be automatically increased by an
amount equal to $500,000.00 less the amount of such Grant received, if any.
Upon the earlier to occur of (i) the date of receipt
of such XXXX Xxxxx, and (ii) the Rental Commencement Date, it is hereby
agreed that the Lease shall be amended to reflect any such changes in the Base
Rent and in the aggregate purchase price for the Premises set forth in said
Section 3(i) of Exhibit "G" and, as of the effective date of such amendment,
this Section 3 (a) of this Agreement shall automatically terminate and be of no
further force or effect.
(d) BOND TRANSACTION. In the event the bond financing
transaction described in Paragraph 2 of the MOU is not closed or consummated due
to the failure or default by Landlord, Landlord hereby agrees that Tenant's
obligation to pay the Real Estate Taxes on the Premises as provided in Section
3.03(b) of the Lease shall be automatically reduced to the amount that would
have been payable by Tenant thereunder if such bond financing transaction had
been closed and consummated as contemplated by the MOU and the tax abatement
referenced therein received, and Landlord shall be obligated for and responsible
to pay the balance of such Real Estate Taxes to the proper taxing authority for
the period of time and number of years that the tax abatement would otherwise
had been available, as described in the MOU.
3
5. NON-WAIVER. Except as expressly provided for herein, Landlord
and Tenant each hereby agree that nothing contained in this Agreement shall be
deemed or construed to waive or to modify the terms of the Lease.
6. EFFECT OF MODIFICATION. Except as expressly modified herein,
the Lease shall remain in full force and effect. The parties hereto do hereby
ratify and confirm the terms and conditions of the Lease, as amended by this
Agreement. In the event of any conflict between the terms of this Agreement and
the terms of the Lease, the terms of this Agreement shall govern and control.
7. ENTIRE AGREEMENT. This Agreement constitutes and contains the
sole and entire agreement of the parties hereto with respect to the subject
matter hereof and no prior or contemporaneous oral or written representations or
agreements between the parties and affecting the subject matter hereof shall
have any force or effect.
8. BINDING EFFECT. This Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of the parties hereto,
to the extent permitted under the Lease.
9. GOVERNING LAW. This Agreement is intended to be performed in
the State of Georgia and shall be construed and enforce in accordance with the
internal laws thereof.
10. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when executed and delivered, shall be an original,
and such counterparts together constitute one and the same instrument. Signature
and acknowledgement pages may be detached from the counterparts and attached to
a single copy of this document to physically form one document.
11. CONSTRUCTION. Each party hereto and its counsel has reviewed
and revised (or requested revisions of) this Agreement, and the normal rule of
construction that any ambiguities are to be resolved against the drafting party
shall not be applicable in the construction and interpretation of this
Agreement.
12. DEFINITIONS. The Lease is hereby modified as provided herein.
Except as otherwise provided herein, all capitalized terms used in this
Agreement which are not defined herein shall have the meanings ascribed to such
terms in the Lease. All references in the Lease or in this Agreement to "the
Lease" or "this Lease" shall be deemed references to the Lease, as amended by
this Agreement.
(Signatures Start on Next Page)
4
IN WITNESS WHEREOF, the parties, intending to be legally bound, have
caused this Agreement to be executed under seal [in multiple originals] as of
the date and year first above written.
LANDLORD:
XXXX X. XXXXXX, L.L.C., a Georgia
Limited Liability Company
By: 1998 AUGUSTUS PARTNERS, L.P., a
Georgia Limited Partnership, Manager
By: 2001 WINSTON MANAGEMENT COMPANY, LLC, a
Georgia Limited Liability Company, its
General Partner
By: [SEAL]
----------------------------------
Xxxx X. Xxxxxx, Member
By: [SEAL]
----------------------------------
----------------,Member
TENANT:
XXXXXXX FURNITURE COMPANIES, INC.,
a Maryland corporation
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
5
XXXXXXX FURNITURE COMPANIES, INC.
S.E. REGIONAL DISTRIBUTION CENTER
SECOND AMENDMENT TO LEASE
THIS SECOND AMENDMENT TO LEASE (this "Agreement") is made and entered
into effective as of the 29th day of July, 2002, by and between XXXX X. XXXXXX,
LLC, a Georgia limited liability company ("Landlord") and XXXXXXX FURNITURE
COMPANIES, INC., a Maryland corporation ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant are parties to that certain Lease
Agreement dated effective as of July 26, 2001, and amended by that certain First
Amendment to Lease (the "First Amendment") dated effective as of November __,
2001 (said Lease Agreement and First Amendment being incorporated herein by this
reference and made a part hereof and being hereinafter referred to as the
"Lease");
WHEREAS, Landlord and Tenant desire to amend the Lease to provide for
certain modifications to the Lease as more particularly set forth herein;
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements hereinafter set forth and other good and valuable considerations, the
receipt and sufficiency of which are hereby acknowledged, the parties do hereby
agree as follows:
1. RECITALS. The foregoing recitals are true and correct and
hereby incorporated by reference.
2. REVISED SITE PLAN. The Lease is hereby amended to add thereto
as new Exhibit "H" the revised site plan of the Premises attached hereto as
Exhibit "H" (the "Revised Site Plan").
3. EXPANSION OPTIONS. The parties agree that approximately 35,000
cubic yards of construction-related material, as shown on the Revised Site Plan
(the "Excess Material"), shall be permitted temporarily to remain in the Phase
II Building Addition Area (shown on the original Site Plan and the Revised Site
Plan as the area in the northeast portion of the Premises and labeled "Future
Expansion"). In the event that Tenant exercises its Expansion Option pursuant to
the Lease with respect to the Phase II Building Addition Area, Landlord shall
promptly and in good workmanlike manner remove said Excess Material, restoring
the Phase II Building Addition Area to the condition shown on the original Site
Plan (Exhibit "C" to the Lease), and Tenant shall reimburse Landlord for
one-half of the reasonable costs of said removal, provided that Landlord
provides to Tenant copies of all invoices for said removal, and provided further
that Tenant's obligation to reimburse Landlord for said removal shall under no
circumstances exceed $75,000.00.
4. XXXX XXXXX. Section 3(a) of the First Amendment is hereby
deleted in its entirety.
5. RENTAL COMMENCEMENT DATE. The parties acknowledge and agree
that the Certificate of Occupancy has been delivered to the Tenant and that the
Rental Commencement Date shall be August 1, 2002.
6. AS-BUILT SURVEY. The Lease is hereby amended to add thereto as
new Exhibit "I" the As-Built Survey attached hereto as Exhibit "I".
7. NON-WAIVER. Except as expressly provided for herein, Landlord
and Tenant each hereby agree that nothing contained in this Agreement shall be
deemed or construed to waive or to modify the terms of the Lease.
8. EFFECT OF MODIFICATION. Except as expressly modified herein,
the Lease shall remain in full force and effect. The parties hereto do hereby
ratify and confirm the terms and conditions of the Lease, as amended by this
Agreement. In the event of any conflict between the terms of this Agreement and
the terms of the Lease, the terms of this Agreement shall govern and control.
9. ENTIRE AGREEMENT. This Agreement constitutes and contains the
sole and entire agreement of the parties hereto with respect to the subject
matter hereof and no prior or contemporaneous oral or written representations or
agreements between the parties and affecting the subject matter hereof shall
have any force or effect.
10. BINDING EFFECT. This Agreement shall be binding upon the
executors, administrators, heirs, successors and assigns of the parties hereto,
to the extent permitted under the Lease.
11. GOVERNING LAW. This Agreement is intended to be performed in
the State of Georgia and shall be construed and enforce in accordance with the
internal laws thereof.
12. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which, when executed and delivered, shall be an original,
and such counterparts together constitute one and the same instrument. Signature
and acknowledgement pages may be detached from the counterparts and attached to
a single copy of this document to physically form one document.
13. CONSTRUCTION. Each party hereto and its counsel has reviewed
and revised (or requested revisions of) this Agreement, and the normal rule of
construction that any ambiguities are to be resolved against the drafting party
shall not be applicable in the construction and interpretation of this
Agreement.
DEFINITIONS. The Lease is hereby modified as provided herein. Except as
otherwise provided herein, all capitalized terms used in this Agreement which
are not defined herein shall have the meanings ascribed to such terms in the
Lease. All references in the Lease or in this Agreement to "the Lease" or "this
Lease" shall be deemed references to the Lease, as amended by this Agreement.
IN WITNESS WHEREOF, the parties, intending to be legally bound, have
caused this Agreement to be executed under seal in multiple originals as of the
date and year first above written.
LANDLORD:
XXXX X. XXXXXX, L.L.C., a Georgia Limited
Liability Company
By: 1998 AUGUSTUS PARTNERS, L.P., a
Georgia Limited Partnership, Manager
By: 2001 WINSTON MANAGEMENT COMPANY, LLC, a
Georgia Limited Liability Company, its
General Partner
By: [SEAL]
----------------------------------
Xxxx X. Xxxxxx, Member
By: [SEAL]
----------------------------------
-----------------,Member
TENANT:
XXXXXXX FURNITURE COMPANIES, INC.,
a Maryland corporation
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
The undersigned have executed this Agreement to evidence their
agreement and consent to the terms hereof.
SUNTRUST BANK
By: -------------------------
Title:-------------------
(Signatures continued from previous page)
XXXXXXX COUNTY INDUSTRIAL DEVELOPMENT AUTHORITY
By: ----------------------------
Title: ---------------------
