EXHIBIT 10.9
LEASE AGREEMENT
This Lease Agreement is made and entered into as of the 1st day of July,
1997, by and between BankFirst, 000 Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000,
hereinafter called "Lessor", and Xxxxxxx Homes, Inc., hereinafter called
"Lessee".
WHEREAS, Lessor is the owner of certain real property located at 000
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000; and
WHEREAS, Lessor desires to lease the 7th through the 15th floors of 000
Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx (the "Premises") to Lessee, and Lessee
desires to lease said Premises from Lessor upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises and the covenants
and agreements hereinafter set forth, the Lessor and the Lessee hereby mutually
covenant and agree as follows:
1. Leased Premises. The Lessor separately leases to the Lessee each floor
(the 7th through the 15th) of the Premises. Lessor is leasing said Premises to
Lessee "as is, where is", with no warranties or representations.
2. Term. The term of this Lease shall be month to month, commencing July
1, 1997.
3. Rent. Lessee shall pay to Lessor an annual rental of Eight Dollars and
Fifty Cents ($8.50) per square foot, per floor, in advance, on the first day of
each month, for floors 7-13, and Four Dollars and Twenty-Five Cents ($4.25) for
the 14th floor of the Premises, as follows:
Floor Square Feet Total Per Month Rental
----- ----------- ----------------------
7 3106 $2,200.00
8 3106 $2,200.00
9 3106 $2,200.00
10 3106 $2,200.00
11 3106 $2,200.00
12 3106 $2,200.00
13 3106 $2,200.00
14 3006 $1,064.00
15 Discretionary Use $1,000.00
4. Repairs and Maintenance. At all times during the term of this Lease,
the Lessor shall keep and maintain at Lessor's own cost and expense, the
Premises and all improvements now or hereafter erected thereon, and all
facilities appurtenant to the Premises in good order and repair and in a safe,
lawful and clean condition, free of dirt, rubbish, snow, ice and unlawful
obstructions. It shall also be the Lessor's responsibility to maintain the
exterior walls, and the heating and air conditioning system.
5. Liens. Lessee shall pay and discharge all expenses incurred by Lessee
for the services of mechanics or for the costs of goods and materials delivered
by materialmen, and save and hold Lessor harmless from any and all claims by
such mechanics or materialmen for labor or services performed or goods delivered
at the request of the Lessee. Lessee shall discharge and satisfy any judgments
taken on account of claims or liens filed by mechanics or materialmen for work
ordered by Lessee.
6. Utilities and Janitorial Services. The Lessor shall pay or cause to be
paid all charges for the furnishing of utilities, including but not limited to,
water, sewer, electricity, and gas or oil, or any other public utility charges
that may or could be assessed against the Premises during the term of the Lease,
for the removal of garbage and rubbish from the Property, and for janitorial
services.
7. Hazardous Materials. Lessee shall not permit the Premises to be used
for the production or storage of any "Hazardous Substance" as that term is
defined by federal and state law. Lessee shall, at Lessee's own expense, comply
with all law regulating the use, generation, storage, transportation and
disposal of Hazardous Substances. Lessee shall remove, at its own expense, any
Hazardous Substances which it permits to be located on the Premises during the
term of this Lease. Lessee shall indemnify, defend and hold harmless Lessor from
all fines, suits, procedures, claims and actions of every kind, and all costs
associated therewith (including attorney and consultant fees), arising out of or
in any way connected with any deposit, spill, discharge, or other release of
Hazardous Substances that occurs at, on , or from the Premises during the term
of this Lease.
8. Alteration. The Lessee shall make no structural alterations or
additions or improvements to the Premises without the prior written consent of
the Lessor.
9. Trade Fixtures. Provided Lessee is not then in default, Lessee may
remove any trade fixtures installed by it in the Premises. Lessee shall promptly
and at its sole cost and expense repair any damage to the Premises incurred in
removing such trade fixtures.
10. Indemnity. Lessee shall indemnify and hold Lessor and the Premises
free and harmless from any and all liabilities, claims, loss, damages, or
expenses resulting from Lessee's occupation and use of the property,
specifically including, without limitation, any liability, claim, loss, damage,
or expense arising by reason of: (1) the death or injury of any person,
including Lessee, or any person who is an employee, agent or invitee of Lessee,
or by reason of the damage to or destruction of any property, including property
owned by Lessee, or by any person who is an employee, agent or invitee of
Lessee, from any cause whatsoever while such person or property is in or on the
Premises or in any way connected with the Premises or with any of the
improvements or personal property on the Premises; and (2) any work performed on
the Premises or materials furnished to the Premises at the request of Lessee or
any person or entity acting for or on behalf of Lessee.
11. Assignment and Sub-Leasing. Lessee will not, without first obtaining
the written consent of Lessor, sell, assign, mortgage or transfer this Lease, in
whole or in part, or sublet all or any part of the Premises.
12. Destruction of Premises. Should the Premises be destroyed by fire,
lightning, tornado, or the like, or be so damaged as to render the Premises
unfit for Lessee's use and occupancy, then this Lease shall terminate on the
date of such destruction or damage. Lessor shall be entitled to receive all
insurance proceeds related to the destruction or damage of the Premises, and
Lessor is not under any obligation to restore the Premises to its original
condition.
13. Condemnation. If the whole or substantially the whole of the Premises
shall be lawfully condemned or taken in any manner for any public or quasi
public use or purpose, this Lease and the term and estate hereby granted shall
forthwith cease and terminate as of the date of taking. Lessor shall be entitled
to receive the entire award in any condemnation proceeding, including any award
for the value of any unexpired term of this Lease, and Lessee shall have no
claim against the proceeds of condemnation. Lessee shall have the right to
maintain any action allowable by law for damage to its Premises or personal
property.
14. Remedies on Default. Upon the occurrence of any default under this
Agreement, the Lessor shall have the right, at its option, to elect any one or
more of the following remedies:
(1) Lessor may, at its option, re-enter and take possession of the
Premises and improvements without terminating this Lease, and sub-lease
the Premises in their entirety for the account of Lessee, holding Lessee
liable for the difference in the rents and other amounts actually paid by
such sub-lessee in sub-letting and the rents and other amounts payable by
Lessee hereunder;
(2) The Lessor may terminate the Lease Term, exclude Lessee from
possession of the Premises and improvements, and use Lessor's best efforts
to lease the same to another for the account of Lessor, holding Lessee
liable for all rent and other amounts payable by Lessee hereunder;
(3) The Lessor may take whatever action at law or in equity may
appear necessary or desirable to collect the rent and other amounts then
due and thereafter to become due, and to enforce performance and
observance of any obligation, agreement or covenant of Lessee under this
Agreement, and in connection with such actions, to recover any and all
damages to Lessor for Lessee's violation or breach of the Lease.
15. Termination. Lessee may terminate this Lease Agreement with respect to
one (1) or more floors of the Premises by giving Lessor written notice thirty
(30) days prior to the intended termination date, which shall be the last day of
the applicable month, and by vacating by the termination date that portion of
the Premises for which the Lease is to be terminated. Lessee shall leave the
vacated portion of the Premises "broom clean". If the Lessee has not vacated the
Premises by the termination date, then this Lease shall continue in full force
and effect for an additional month until Lessee has vacated the Premises.
16. Entire Agreement. This Lease sets forth the entire understanding and
agreement of Lessor and Lessee with respect to the Premises. No modifications of
or amendments to this Lease shall be binding upon Lessee and/or Lessor unless in
writing and signed by both parties hereto. This Agreement shall be binding upon
the parties and any permitted successors and assigns.
IN WITNESS WHEREOF, the Lessor and Lessee have caused this Lease to be
executed as of the date and year first above written.
LESSOR:
BANKFIRST
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Xxxx X. Xxxxxx, President
LESSEE:
XXXXXXX HOMES, INC.
By: /s/ Xxxx Xxxxx
-----------------------------------
Its: Vice President
2
STATE OF TENNESSEE )
COUNTY OF XXXX )
Personally appeared before me, a Notary Public in and for said State and
County, Xxxx X. Xxxxxx, with whom I am personally acquainted (or proved to me on
the basis of satisfactory evidence), and who, upon oath, acknowledged himself to
be President of BankFirst, and that he, as such officer of said corporation,
being authorized so to do, signed, sealed and delivered the foregoing instrument
in my presence for the purposes therein contained as his free act and deed, by
signing the name of the corporation by himself as such officer.
Witness my hand and seal at office, this 19th day of August, 1997.
/S/ Xxxxxx X. Xxxx
------------------------------------
Notary Public
My commission expires: 0-00-00
XXXXX XX XXXXXXXXX )
COUNTY OF XXXX )
Personally appeared before me, a Notary Public in and for said State and
County, Xxxx Xxxxx, with whom I am personally acquainted (or proved to me on the
basis of satisfactory evidence), and who, upon oath, acknowledged himself to be
Vice President of Xxxxxxx Homes, Inc., and that she/he, as such officer of said
corporation, being authorized so to do, signed, sealed and delivered the
foregoing instrument in my presence for the purposes therein contained as
her/his free act and deed, by signing the name of the corporation by himself as
such officer.
Witness my hand and seal at office, this 19th day of August, 1997.
/s/ Xxxxxx X. Xxxxxx, Sr.
------------------------------------
Notary Public
My commission expires: 4/2/01
3
