EXHIBIT 10.4
XxxxxXxxx#000000 .xxx
XXXXX XX XXXXXXX
LEASE AGREEMENT
COUNTY OF XXXXXX
THIS LEASE is made and entered into this 14th day of May, 2003, by and
between THE XXXXX GROUP, a Georgia limited liability company (hereinafter
called "Landlord"), and FAMILY DOLLAR STORES OF GEORGIA, INC., a Georgia
corporation (hereinafter called "Tenant")
WITNESSETH:
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In consideration of the covenants hereinafter contained, to all of which
Landlord and Tenant agree, Landlord hereby demises and lets to Tenant, and
Tenant hereby rents and hires from Landlord, pursuant to this lease, that
certain premises situated on the east side of Roosevelt Highway (U. S. Highway
29) approximately 100 yards north of its intersection with Highpoint Road, in
the City of Union City, County of Xxxxxx, State of Georgia, and being that
property fronting 170.59 feet on Roosevelt Highway (U. S. Highway 29) and
extending approximately 233.03 feet in an easterly direction to the rear as
shown outlined in red on Exhibit B - Site Plan attached hereto and made a part
hereof.
Together with a building containing 8,000 (100' x 801) interior square feet,
which shall be constructed by Landlord, as hereinafter provided, on the
above-described premises along with the paved, marked, lighted parking, service
and access areas shown on Exhibit B - Site Plan (said premises and the building
and other improvements thereon, upon completion of construction, are hereinafter
called the "demised premises").
TO HAVE AND TO HOLD the demised premises together with all and singular the
appurtenances, rights, privileges and easements thereunto belonging or in
anywise appertaining, unto Tenant, its successors and assigns, for an initial
term commencing as set forth in Paragraph 5 and ending on the 30th day of June,
2013.
1. RENT Tenant hereby covenants and agrees to pay Landlord
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fixed rent at the rate of FOUR THOUSAND EIGHT HUNDRED THIRTY-THREE
AND 34/100 DOLLARS per month ($58,000.08/annum) payable on or before the tenth
day of each month beginning on the commencement date as set forth in paragraph
5.
In addition to the fixed rent, Tenant shall pay Landlord a percentage rent
equal to three percent (3%) of the gross sales in excess of $1,933,333 made by
Tenant on the demised premises during each lease year period. Tenant shall
account for and pay any percentage rent due annually within ninety (90) days
after the end of each lease year. The term "lease year" shall mean the calendar
year and shall always end on December 31. "Gross sales" shall mean all sales
made from the demised premises excluding sales tax, excise tax, refunds, void
sales and sales from vending machines. The breakpoint will be adjusted mid lease
year for any year in which this lease is extended pursuant to Paragraph 6 of
this lease.
2. COVENANT OF TITLE, AUTHORITY AND QUIET POSSESSION.
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Landlord covenants and warrants that Landlord has full right and lawful
authority to enter into this lease-for the full initial term and all extensions;
that as of the date Landlord delivers the demised premises to Tenant, Landlord
will be lawfully seized of the demised premises, and will have good title
thereto; that the demised premises are free and clear of all encumbrances;
however, Landlord may place mortgages or deeds of trust on the demised premises
so long as Tenant is provided a nondisturbance agreement that is consistent with
Paragraph 21 of this lease; that the demised premises when constructed will
comply with all health, safety and environmental laws, ordinances and
regulations and building codes; that to Landlord's best knowledge and belief
there are no laws, ordinances, government requirements or regulations, or zoning
or other matters which will restrict, limit or prevent Tenant's use of the
demised premises for retail sales including the sale of merchandise typically
sold by variety stores, discount stores, dollar stores or variety discount
stores; and that there
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are no title restrictions which will restrict, limit or prevent Tenant's use of
the demised premises for retail sales including the sale of merchandise
typically sold by variety stores, discount stores, dollar stores or variety
discount stores.
This lease is contingent upon Landlord purchasing the demised premises. If
Landlord does not close the purchase of and take title to the demised premises
by July 1, 2003, then either Tenant or Landlord may terminate this lease by
giving written notice to the other. If this lease is terminated, both Landlord
and Tenant shall be released from all obligations hereunder. Landlord shall
promptly notify-Tenant in writing when the closing occurs.
3. USE OF PREMISES Landlord warrants, to the best of Landlord's knowledge,
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that the demised premises may be used, but not limited to such use, by Tenant,
for the conduct of a variety store, discount store, dollar store or variety
discount store. Tenant shall not be obligated to continuously occupy or operate
a business on the demised premises. Whether or not Tenant is occupying the
demised premises or conducting business therein, Tenant shall be responsible for
paying the rent and other sums due Landlord under this lease and for performing
Tenant's other obligations subject to and in accordance with the provisions of
this lease.
3A. ASSIGNMENT/SUBLETTING Tenant shall have the right to assign this lease
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or sublet the demised premises only with the Landlord's prior written consent,
which consent will not be unreasonably withheld or delayed. Within thirty days
after Tenant notifies Landlord of the prospective assignee's or subtenant's name
and proposed use of the demised premises, Landlord shall either approve or
reject such assignee or subtenant by written notice to Tenant. If Landlord does
not respond to Tenant's notice within said thirty day period, Landlord shall be
deemed to have consented to such assignee or subtenant. If Landlord
unreasonably withholds its consent in connection with any requested assignment
or subletting, Landlord will have committed a material breach of this lease and
Tenant will be entitled to terminate this lease and be
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released of its obligations hereunder. Notwithstanding the foregoing, Tenant
shall not need Landlord's consent if Tenant assigns this lease or sublets the
demised premises to any corporation or other entity into or with which Tenant
may be merged. or consolidated or to any corporation or other entity which
shall be an affiliate, subsidiary, parent or successor of either Tenant or a
corporation or other entity into or with which Tenant may be merged or
consolidated, or to any person or entity acquiring five or more of Tenant's
stores.
4. CONSTRUCTION OF PREMISES Landlord shall at Landlord's expense construct
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for Tenant a retail store building containing 8,000 (100' x 80') square feet
(measured by exterior walls) of ground floor space, along with the paved,
marked, lighted parking, service and access areas as shown on Exhibit B - Site
Plan. Landlord shall erect and complete said building in accordance with
Tenant's standard criteria plans consisting of thirteen sheets. Said plans and
specifications are labeled Exhibit A, and constitute a part of this lease.
Landlord shall prepare and submit three sets of construction drawings
incorporating the requirements of Exhibit A to Tenant's construction department
for review at least 45 days prior to commencing construction. Said drawings
shall include an engineered site plan showing the location and dimensions of the
demised premises and all driveways and parking spaces. All improvements to the
demised premises shall be made in accordance with said drawings as modified and
approved in writing by Tenant. Tenant's review of the construction drawings
shall be limited to insuring that they conform to Tenant's required design and
appearance. Landlord shall have full responsibility for all other aspects of the
construction drawings including but not limited to insuring that they comply
with all applicable codes. In particular, Landlord shall ensure that the demised
premises and all parking, service and access areas will be designed and
constructed in accordance and in all material respects with the Standards for
Accessible Design for new construction included in Appendix A to the Title III
implementing regulations of the American with
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Disabilities Act of 1990. Upon completion of construction, Landlord (either on
its own or through its architect, engineer or contractor) shall certify that the
demised premises and the parking, service and access areas meet said standards
by signing Exhibit C - ADA Certification.
There shall be no deviations from or changes to said construction drawings
as approved by Tenant without the prior written approval of Tenant. During the
progress of construction, Tenant's representatives may from time to time inspect
the work and materials to determine whether they are in accordance with the
approved construction drawings. The failure of Tenant's representatives to
object to any part of Landlord's construction shall not be deemed to be an
acquiescence in or acceptance of any failure by Landlord to comply with the
approved construction drawings.
Landlord agrees that the construction of Tenant's building along with the
paved, marked, lighted parking, service and access areas shall be completed not
later than October 31, 2003. If construction is not completed by November 21,
2003, and the delay is not due to force majeure (as set forth in Paragraph 4A
below) or any delay by Tenant, then Tenant shall have the right, at its option,
to (1) grant Landlord additional time to complete such construction or (ii)
cancel this lease by written notice to Landlord, but until (a) this lease is
canceled or (b) Landlord completes construction, provides Tenant with written
notice of completion and delivers the demised premises to Tenant, Landlord shall
pay to Tenant $150 per day as liquidated damages. Landlord and Tenant agree to
said liquidated damages because Landlord's failure to timely complete the
construction will cause Tenant to suffer economic losses, but such losses will
be difficult to ascertain.
4A. FORCE MAJEURE If either Landlord or Tenant shall be delayed or hindered
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in or prevented from the performance of any act required hereunder by reason of
strikes, lock-outs, failure of power, restrictive governmental laws or
regulations, riots,
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insurrection,, war or other reason beyond the control of the party delayed, then
provided that such reason also prohibits the other party (the "undelayed party")
from performing such work, the performance of such act shall be excused for the
period of the delay and any time limit imposed by this lease for the performance
of any such act shall be extended for a period equivalent to the delay.
Notwithstanding the foregoing, (a) if the undelayed party desires to perform the
act required of the delayed party and is able to do so, the undelayed party
shall have the right to perform such act and recover the reasonable costs
thereof from the delayed party, and (b) in no event shall the time period for
Landlord's delivery of the demised premises to Tenant pursuant to Paragraphs 4,
5 and 10 be extended pursuant to this paragraph by more than sixty days.
5. DELIVERY OF PREMISES AND COMMENCEMENT OF TERM Landlord shall deliver the
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demised premises to Tenant upon substantial completion (as defined in this
Paragraph 5 below) of all construction, provided that Tenant shall not be
required to accept delivery of the demised premises during the period November
10 through January 10 of any years, or prior to the date Landlord has provided
the certification attached as Exhibit C - ADA Certification. Landlord agrees to
notify Tenant, in writing, of the date the demised premises will be delivered to
Tenant at least forty-five days prior to such date.
The demised premises shall be deemed substantially completed on the date on
which both of the following conditions have been met: (1) a permanent
certificate of occupancy has been obtained; and (2) the improvements required to
be performed by Landlord have been substantially completed in accordance with
the approved construction drawings subject only to minor punch list items which
will not interfere with Tenant's fixturing of the demised premises and/or
opening of business to the public. Landlord shall diligently proceed to correct
and complete such punch list items.
The term will begin upon the date Landlord delivers the demised premises in
the condition required by Paragraph 4 above,
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and rent will begin to accrue upon the earlier of (1) thirty days after the date
Landlord delivers the demised premises to Tenant in the condition required by
Paragraph 4 above along with all construction, including paving, marking and
lighting of the parking, service and access areas, fully completed in accordance
with the approved construction drawings, or (ii) the date Tenant opens for
business in the demised premises.
6. TERM EXTENSIONS Provided that at the time any notice is due under this
paragraph Tenant is not in default in the payment of fixed rent or percentage
rent due Landlord under this lease, with no default being deemed to have
occurred unless Tenant has failed to cure the default after receipt of notice
and before expiration of the notice and cure period set forth in Paragraph 17 of
this lease, the term of this lease shall be automatically extended one period at
a time for four successive periods of five years each unless Tenant shall give
written notice to Landlord canceling the next extended term at least sixty days
before such extended term is scheduled to begin. If Tenant gives such notice,
this lease will expire the day before such extended term is scheduled to begin.
All of the terms, covenants and conditions of this lease shall apply to each
such extended term except the amount of rent set forth below shall be
substituted for the amount of rent set forth in Paragraph 1:
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EXTENDED FIXED RENT PERCENTAGE RENT
TERM
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1st $5,316.67/month($63,800.04/annum) 3% over $2,126,667/annum
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2nd $5,848.34/month($70,180.08/annum) 3% over $2,339,333/annum
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3rd $6,433.17/month($77,198.04/annum) 3% over $2,573,267/annum
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4th $7,076.42/month($84,917.04/annum) 3% over $2,830,593/annum
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For all purposes under this lease, the phrases "the term of this lease" and
"lease term" shall mean the initial term and any extension which comes into
effect pursuant to this Paragraph.
7. ALTERATIONS BY TENANT. Tenant shall have the right at all times after
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the date of this lease to make, at its own expense, such changes, improvements,
alterations and additions to the
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demised premises as Tenant may desire except that Tenant will not make any
structural alterations or improvements or any alterations or improvements to the
front exterior of the demised premises, other than relocating windows and doors,
without Landlord's prior written consent, which consent will not be unreasonably
withheld or delayed. Any alterations and improvements made by Tenant will be
done in a good and workmanlike manner and in accordance with applicable code
requirements.
7A. MECHANICS LIENS Tenant agrees to pay promptly when due all charges for
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labor and materials in connection with any work done by Tenant or anyone
claiming under Tenant upon the demised premises so that the demised premises
shall at all times be free of liens resulting from such labor and materials. If
any mechanic's or other lien is filed against the demised premises arising out
of any labor or material furnished to Tenant pursuant to a contract with Tenant
or anyone claiming under Tenant, Tenant shall cause it to be canceled and
discharged of record by payment or bond within ninety (90) days after Tenant
receives written notice from Landlord of the existence of such lien.
8. FIXTURES Tenant shall have the right to install on the demised premises
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such fixtures and equipment as Tenant desires for the operation of its business.
Tenant shall, on termination of this lease, and may at any time during the lease
term, remove from the demised premises all shelving, fixtures and equipment
which Tenant installed at its own expense or otherwise acquired. Tenant shall
have the right to place trash dumpsters and recycling dumpsters in the rear
service area adjacent to the demised premises, and telephones, vending machines
and kiddie rides in front of the demised premises and to install communications
equipment on the premises, and telephones, vending machines-and kiddie rides in
front of the demised premises and to install communications equipment on the
exterior of the demised premises or in the rear service area.
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9. UTILITIES Landlord shall ensure that electricity, water, sanitary sewer
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service, gas (if available) and telephone service are properly connected to the
demised premises in adequate supply and separately metered. Tenant shall pay
directly to the utility provider all charges for all utilities used by Tenant in
the demised premises. Except to the extent specifically stated in this lease,
Tenant shall have no obligation to pay to Landlord any charges or fees billed to
Landlord by any utility provider.
10. DAMAGE AND DESTRUCTION Should the building or the parking, service or
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access areas on the demised premises be damaged or destroyed by fire or other
casualty, Landlord shall, as soon as practicable and at Landlord's expense,
remove all debris and repair, restore or rebuild so that thereafter the demised
premises will be substantially the same as prior to such damage or destruction.
Landlord's obligation shall include performing all work necessary to cause the
demised premises to comply with then currently applicable building and fire
codes. In such event, rents and other charges shall cease and xxxxx on the date
of the damage or destruction in proportion to the area of the building on the
demised premises rendered unusable and any rent paid in advance by Tenant will
be refunded to Tenant. Such rents and other charges will begin to re-accrue upon
the expiration of thirty days following the date the building and parking,
service and access areas on the demised premises-have been repaired, restored or
rebuilt and possession tendered to Tenant. If Landlord does not repair, restore
or rebuild the demised premises within 180 days, then Tenant may, at its option,
terminate and cancel this lease.
Notwithstanding the foregoing, if the demised premises should be so
extensively damaged as to require rebuilding and such damage occurs during the
last year of the initial term of this lease or the last year of any extension
thereof, then prior to Landlord's
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commencement of rebuilding Landlord may request in writing that Tenant agree to
extend the then current term so that there will be five calendar years remaining
from the date Tenant reopens for business in the demised premises. If Tenant
refuses to agree to so extend the then current term, then Landlord shall not be
obligated to rebuild the demised premises, and if Landlord elects not to
rebuild, then either Landlord or Tenant may terminate this lease by giving
written notice to the other party.
11. INSURANCE (a) Landlord agrees to keep the demised premises insured to
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their full replacement cost against loss or damage by perils covered by fire and
extended coverage and vandalism and malicious mischief insurance.
(b) Tenant shall maintain a commercial general liability insurance policy
with a minimum single limit of $1,000,000 for bodily injury, death and property
damage insuring Tenant with respect to occurrences on the demised premises.
Landlord shall be named as an additional insured under the policy but only for
claims against Landlord arising out of the acts or omissions of Tenant or
arising out of the manner of Tenant's use of the demised premises.
(c) The insurance required to be carried by subparagraphs (a) and (b) above
will be issued by financially responsible insurers duly authorized to do
business in the state where the demised premises are located. Certificates of
such coverages from the insurers providing that the insurer will endeavor to
give thirty days' written notice to Landlord or Tenant, as the case may be,
prior to cancellation of any such insurance shall be furnished to Landlord or
Tenant upon written request of either.
(d) Beginning on the rent commencement date, Tenant shall reimburse
Landlord for the insurance premium for the insurance Landlord is required to
carry by subparagraph (a) of this Paragraph 11. All premiums shall be reasonable
and at competitive rates.
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Notwithstanding the foregoing, for the first year after Tenant opens for
business, Tenant's reimbursement to Landlord pursuant to this Paragraph 11 will
not exceed $1,200.00. Notwithstanding the foregoing, in no event shall the
amount of Tenant's payment for such premiums in any particular lease year exceed
the Maximum Tenant Insurance Amount for said lease year. The "Maximum Tenant
Insurance amount" for the initial lease year shall mean $1,200.00. The Maximum
Tenant Insurance Amount shall be increased by five percent (5%) for each lease
year after the initial lease year. The amount of premiums to be reimbursed by
Tenant and the limit on such premiums shall be reduced on a per diem basis for
partial lease years.
Commencing with the first full fixed minimum rent payment, Tenant will make
payments on account to Landlord along with the fixed minimum rent. The monthly
amount to be paid by Tenant in 2003 shall be $100.00. Beginning with the 2004
lease year, Landlord shall furnish to Tenant a detailed statement annually
within ninety days after the end of each lease year or partial lease year
setting forth the actual amount of the insurance premium set forth above along
with a copy of the paid invoice for the premium included on the statement. Upon
request, Landlord shall furnish any other information Tenant may reasonably
require. If the amount paid by Tenant monthly on account is less than the actual
insurance premium,, Tenant shall pay the difference within thirty days after
receiving Landlord's statement. If the amount paid by Tenant monthly on account
is greater than the actual insurance premium, then such overpayment will be
refunded along with the statement. The monthly amount to be paid by Tenant will
be adjusted annually to one-twelfth of the actual insurance premium for the
previous lease year If Landlord fails to send the annual statement of Landlord's
actual premiums within the ninety day
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period, then, Tenant shall have the right to cease making the monthly insurance
payments to Landlord. Landlord's failure to send the annual statement within the
ninety day period shall give Tenant the right to defer payment until the
statement is received, but shall not release Tenant from the obligation to pay
insurance premiums including any deferred payments after Tenant receives the
required documentation from Landlord.
12. MAINTENANCE AND REPAIRS Landlord shall remedy any defect in
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workmanship, materials or equipment furnished by Landlord pursuant to Paragraph
4 of this lease provided Tenant notifies Landlord of the defect within twelve
months after the term commencement date. Except to the extent specifically
stated in this lease and unless such items are under warranty, or are required
to be in warranty under the provisions of this lease, Landlord shall have no
obligation to repair latent defects in the demised premises that are
discovered more than twelve (12) months after the term commencement date.
Landlord shall maintain and repair and replace when necessary all exterior
portions of the demised premises, including the roof, exterior walls, canopy,
gutters and downspouts, and also all structural portions of the building whether
interior or exterior. Landlord shall also be responsible for making any repairs
made necessary by the settling of the building constituting a part of the
demised premises, any repairs to the interior of the building made necessary by
Landlord's failure to maintain the exterior of the building, any repairs to
exterior (including under slab) plumbing and electrical lines and certain
repairs and replacements to the sprinkler system, if any and the heating and air
conditioning systems as set forth below. Landlord shall keep the parking,
service and access areas (and other exterior areas, if any) maintained, and in a
good state of repair and properly lighted excluding the removal of snow, ice,
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trash, weeds and debris, and Landlord will maintain the retention pond located
in front of the demised premises excluding the mowing and weed eating of the
area around such pond which shall be Tenant's responsibility.
Tenant shall be responsible for removing snow, ice, trash and debris from
the demised premises and shall arrange for the removal of all Tenant's refuse
and rubbish in the rear service area of the demised premises at Tenant's sole
cost and expense and Tenant shall maintain existing landscaping. Tenant shall
maintain and keep in good repair all interior, non-structural portions of the
demised premises except for repairs Landlord is required to make, and Tenant
shall keep the interior plumbing and interior electrical systems in good repair.
Tenant shall keep the heating and air conditioning systems in repair until the
aggregate cost of repairs and replacements to such systems equals $1,000 in any
lease year. Landlord shall promptly reimburse Tenant for any costs incurred by
Tenant in excess of $1,000 for any maintenance, repairs or replacements to such
systems and Landlord shall have full responsibility for making, at Landlord's
expense, any and all repairs and replacements to such systems for the remainder
of such lease year. For the purpose of determining the responsible party, any
repair or replacement expense shall be attributed to the lease year in which the
repair or replacement is made.
l2A. HEATING AND AIR CONDITIONING SYSTEMS Landlord shall furnish new
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heating and air conditioning systems serving only the demised premises
manufactured by a national firm such as Lennox, Carrier or equivalent. The air
conditioning system shall have a minimum capacity of 20 tons and shall be
sufficient to maintain an even inside temperature of 72 degrees and a relative
humidity of not more than fifty percent (50%) and the heating system shall be
sufficient to maintain a minimum inside temperature of 72 degrees.
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Notwithstanding Tenant's repair obligations set forth in Paragraph 12 above,
Landlord shall be responsible for making any necessary repairs to the heating
and air conditioning systems for one year after the term commencement date.
13. TAXES Landlord shall pay when due all taxes, assessments and other
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charges which may be levied, assessed or charged against the demised premises,
and will make all payments required to be made under the terms of any mortgage
or deed of trust which is now or hereafter becomes a lien on the demised
premises.
Tenant shall pay when due all operating license fees for the conduct of its
business, and ad valorem taxes levied upon its trade fixtures, inventory and
other personal property. Beginning on the rent commencement date, Tenant shall
reimburse Landlord for the real estate taxes on the demised premises. Any real
estate taxes which are the responsibility of Tenant in the years in which this
lease shall begin and end shall be apportioned between Landlord and Tenant on a
per diem basis. Notwithstanding the foregoing, for the first year after Tenant
opens for business, Tenant's reimbursement to Landlord pursuant to this
Paragraph 13 will not exceed $4,000.08. The amount of such taxes to be
reimbursed by Tenant shall be reduced on a per diem basis for partial lease
years.
Landlord agrees to notify Tenant in writing within forty-five days after
receiving notification of any planned increase in the assessed value of the
demised premises. Tenant shall have the right to contest, at Tenant's sole cost
and expense, by appropriate proceedings, in Landlord's or Tenant's name, the
validity or amount of any such increase. Landlord agrees to cooperate with
Tenant in contesting any such increase. If Landlord fails to give written notice
of the increase to Tenant within such forty-five day period, then Tenant shall
not be responsible for reimbursing Landlord for
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any resulting tax increase for the year in which such increase shall take
effect. Landlord shall promptly apply for and diligently pursue any exemption
from or abatement of real estate taxes or any increase in such taxes available
for newly constructed projects through any state or local programs. Tenant
shall receive its share of the benefit of any such exemption or abatement
granted to Landlord.
Commencing with the first full fixed minimum rent payment, Tenant will make
payments on account to Landlord along with the fixed minimum rent. The monthly
amount to be paid by Tenant in 2003 shall be $333.34. Beginning with the 2004
lease year, Landlord shall furnish to Tenant a detailed statement annually
within ninety days after the end of each lease year or partial lease year
setting forth the actual amount of the real estate taxes set forth above along
with copies of the paid invoice for taxes included on the statement. Upon
request, Landlord shall furnish any other information Tenant may reasonably
require. If the amount paid by Tenant monthly on account is less than the actual
real estate taxes, Tenant shall pay the difference within thirty days after
receiving Landlord's statement. If the amount paid by Tenant monthly on account
is greater than the actual real estate taxes, then such overpayment will be
refunded along with- the statement. The monthly amount to be paid by Tenant will
be adjusted annually to one-twelfth of the taxes for the previous lease year. If
Landlord fails to send the annual statement of Landlord's actual real estate
taxes within the ninety day period, then Tenant shall have the right to cease
making the monthly real estate payments to Landlord. Landlord's failure to send
the annual statement shall give Tenant the right to defer payment until the
statement is received, but shall not release Tenant from the obligation to pay
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real estate taxes including any deferred payments after Tenant receives the
required documentation from Landlord.
14. UNPERFORMED COVENANTS If Landlord fails to perform any affirmative
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covenant to be performed by Landlord pursuant to this lease, or if Landlord
fails to make any payment which Landlord has agreed to make, and Landlord does
not cure such failure within thirty days after Tenant gives written notice of
such failure to Landlord, or in the event of an emergency (any roof leak or any
failure of the heating system or air conditioning system or any damage to the
demised premises which compromises the security of the demised premises shall
constitute an emergency) , if Landlord does not cure such failure within
twenty-four hours after such notice from Tenant as is reasonable under the
circumstances, including notice by e-mail, fax or telephone, then Tenant may, at
its option, perform such affirmative covenant or make any such payment in
Tenant's reasonable discretion as to the necessity therefor, and the full amount
of the cost and expense incurred or the payment so made shall immediately be
owing by Landlord to Tenant. Tenant shall have the right to deduct the amount
thereof, together with interest from the date of payment at-the prime rate
charged by Bank of America, its successors or assigns, without being in default,
out of rents then due or thereafter coming due hereunder. The rights granted in
this Paragraph shall not release Landlord from any obligation to perform any of
the covenants to be performed by Landlord under this lease and shall be in
addition to any other rights Tenant may have by reason of any default by
Landlord. Landlord shall have the right to dispute any deduction made by Tenant,
and may bring suit to recover all sums withheld. Landlord shall be entitled to
interest on all sums wrongfully withheld by Tenant at the interest rate set
forth in this Paragraph, but Tenant shall not be in default for failure to pay
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any sums withheld unless Tenant fails to pay the amount of any final judgment in
Landlord's favor within thirty days after the judgment is entered.
15. SIGNS Tenant shall have the right to erect, at its sole cost and
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expense, its standard building sign and freestanding road sign (or signs as
similar to Tenant's standard signs as are allowed by local ordinances,
including variances therefrom obtained by Tenant) . Tenant will not erect any
additional permanent exterior signs without Landlord's consent which consent
will not be unreasonably withheld, but Tenant shall have the right to replace
its standard signs with signs that are no larger than Tenant's standard signs.
Tenant may also erect other signs and decals (such as signs designating its
hours of operation) on the exterior of the demised premises. Tenant shall obtain
all governmental permits required in order to erect its signs. Tenant shall
repair any damage resulting from the installation or removal of its signs.
Tenant's road sign may be located anywhere on the demised premises subject to
city approval. Landlord shall cooperate with Tenant to obtain any governmental
permits and approvals needed to erect Tenant's signs.
16. CONDEMNATION If the demised premises, or any part thereof, shall be
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taken in any proceeding by public authorities by condemnation or otherwise, or
be acquired for public or quasi-public purposes, Tenant shall have the right to
terminate this lease, in which case any unearned rent shall be refunded to
Tenant. If only a portion of the demised premises shall be taken by condemnation
or other proceeding, and if Tenant' has the right to terminate this lease, but
Tenant elects not to terminate this lease, then the rent shall be reduced in the
same proportion that the demised premises are reduced. Additionally, if Tenant
elects not to terminate this lease, Landlord shall restore the demised
-17-
premises to as close to their condition as existed prior to the taking as is
feasible. Tenant shall have the right to participate in any proceeding
pertaining to condemnation of the demised premises whether or not Tenant elects
to terminate this lease, and Landlord and Tenant shall each be entitled to their
separate claims based on their respective interests even if a single award for
all damages is given by the condemning authority, except Tenants claim shall not
diminish the amount determined to be the total value of Landlord's fee interest
in the demised premises.
17. TENANT'S DEFAULT The following shall constitute events of default:
----------------
(a) Tenant shall fail to pay any installment of fixed rent when due and
such failure shall continue for ten (10) days after Tenant receives written
notice of default from Landlord, or Tenant shall fail to pay any other sums due
Landlord under this lease when due and such failure shall continue for thirty
(30) days after Tenant receives written notice of default from Landlord; or
(b) Tenant shall fail to perform or observe any other material agreement or
condition on its part to be performed or observed, and Tenant shall fail to
commence to cure such default within thirty (30) days after receipt of notice of
said default from Landlord or having commenced to cure such default, Tenant
shall fail to diligently pursue the curing of the default thereafter. If Tenant
fails to perform or observe such non-monetary material agreement or condition
(hereinafter called "agreement or condition") on its part to be performed or
observed, and (i) if--Tenant has not performed such agreement or condition
within thirty (30) days after written notice of nonperformance shall have been
received by Tenant, or (ii) if such agreement or condition cannot be performed
within such thirty (30) day period and Tenant has not taken such steps within
such period as would, if diligently pursued by Tenant, result in
-18-
the performance of such agreement or condition within a reasonable time after
such period, then Landlord may, at its option, after notice to Tenant, perform
such agreement or condition and the reasonable cost and expenses entailed shall
be promptly reimbursed by Tenant to Landlord.
Upon the occurrence of an event of default, Landlord may declare the term
ended and enter into the demised premises by due process of law, and expel
Tenant and repossess and enjoy the demised premises as though this lease had by
its terms expired. Should the lease term at any time be ended by Landlord under
the terms and conditions of this Paragraph, Tenant shall peaceably surrender the
demised premises to Landlord. Provided that Landlord uses reasonable efforts to
relet the demised premises for the highest obtainable rent taking into
consideration the condition of the demised premises and general market
conditions, no termination of this lease shall relieve Tenant from the
obligation to pay monthly rent and other charges due under this lease for the
remainder of the then current term as though this lease had not been terminated
for as long as the demised premises are vacant and for any deficiency between
the monthly rent and other monthly charges due under this lease for the
remainder of the then current term and the monthly rent and other monthly
charges due under any new lease if the demised premises are relet. with any
such rent or deficiency in rent and other charges to be paid as such obligations
become due hereunder in monthly or other periodic installments. In addition,
Tenant shall be liable for the reasonable costs of reletting the demised
premises, but such costs shall not include any attorneys' fees to negotiate a
lease with a new tenant or any costs to alter or improve the demised premises
for a new tenant. Mention in this lease of any particular remedy shall not
preclude Landlord from any other remedy at law or in equity and Landlord
-19-
shall have all remedies and rights available to it at law or equity in addition
to all remedies set forth herein except Landlord shall not have the right to
lock Tenant out of the demised premises without a court order and Landlord shall
not accelerate any monetary obligations of Tenant.
18. SURRENDER OF POSSESSION Upon the termination of this lease, Tenant
-----------------------
shall surrender the demised premises in good repair, ordinary wear and tear,
damage by fire or other casualty and Landlord's maintenance and repair
obligations excepted.
19. EXCLUSIVE USE Landlord agrees that Landlord and any entity controlled
-------------
by Landlord or any partner or principal of Landlord shall not lease (or permit
the leasing or subleasing of) or sell any space in any adjacent or other
property owned by or controlled by Landlord or any entity controlled by Landlord
or any partner or principal of Landlord within two (2) miles of the demised
premises to any variety store, liquidation or close-out store, variety discount
store, discount department store, dollar store, thrift store, any store selling
used clothing, or any store similar to Tenant in operation or merchandising.
This Paragraph is not intended to prohibit Landlord from leasing or selling
space to a drugstore, movie rental store, toy store, hobby store, sporting goods
store, card and gift store, hardware store,' home improvement store, auto supply
store, electronics store, office supply store or any other store selling a
single category of merchandise even though the category may be a broad one such
as toys or hardware. This Paragraph is not intended to prohibit Landlord from
acting in the capacity of a real estate broker or real estate agent.
If there is a breach of this Paragraph by Landlord, Tenant's rights and
remedies shall include, but not be limited to, the right at any time thereafter
to elect to terminate this lease, and upon such election, this lease shall be
terminated and Tenant shall be
-20-
released and discharged from all liability hereunder. So long as such breach
exists and Tenant has not terminated this lease, Tenant's only obligation with
respect to rent shall be the payment of the lesser of (i) the fixed rent set
forth in Paragraph 1 above, with no percentage rent, or (ii) percentage rent of
two percent (2%) of Tenant's gross sales (as defined in Paragraph 1 above), with
no fixed rent, such percentage rent to be payable within ninety days after the
end of each lease year. Such rights and remedies shall not be exclusive of
Tenant's rights to damages or any other rights or remedies.
The restrictions imposed by this Paragraph 19 shall be waived and released
by Tenant in the event that (i) Tenant completely changes its use to one other
than a variety store, variety discount store or discount store, or (ii) if
Tenant shall cease to use the demised premises for a period of time in excess of
six (6) months for reasons other than strikes, lockouts, labor troubles, failure
of power or other utilities, fire or other casualty, restrictive governmental
laws or regulations, riots insurrection, war or other reasons not the fault of
Tenant or for any cause beyond Tenant's reasonable control or for remodeling or
renovations. If Tenant reopens after said six (6) month period, the restrictions
granted pursuant to this Paragraph 19 shall be reinstated with full force and
effect; provided, however, so long as Landlord notifies Tenant in writing that
Landlord will enter into or has entered into a lease with another tenant who
violates the restrictions of this Paragraph 19 during the time Tenant has waived
the restrictions of this Xxxxxxxxx 00, Xxxxxxxx will not be in violation of this
Paragraph 19 with respect to any lease agreements executed by Landlord while the
use restrictions were waived by Tenant.
20. MUTUAL WAIVER Landlord and Tenant hereby release all claims and waive
-------------
all rights of recovery against the other and their
-21-
directors, officers, agents, employees, successors, sublessees or assigns, for
any loss or damage to each party's respective property caused by or resulting
from fire or other casualty of whatsoever origin even if caused by negligence,
to the extent that the same is covered by insurance or, paid by proceeds or is
required by the terms of this lease to be covered by insurance; provided,
however, nothing contained in this Paragraph shall affect Landlord's obligation
to repair or rebuild the demised premises as otherwise stated in this lease. All
policies insuring the property of Landlord or Tenant shall contain or be
endorsed to contain a provision whereby the insurer thereunder waives all rights
of subrogation against the other party to this lease and their members,
managers, directors, officers, agents, employees, successors, sublessees and
assigns.
21. SUBORDINATION TO MORTGAGES Upon Landlord's request, Tenant shall sign,
--------------------------
acknowledge and deliver to Landlord Tenant's standard form Subordination,
Non-Disturbance and Attornment Agreement (hereinafter referred to as "SN}JA") or
another commerically reasonable SNDA form substantially in the form attached
hereto as Exhibit D - SNDA that may be mutually agreed upon by Landlord,
Landlord's mortgagee and Tenant. Such agreement shall provide that this lease
shall be subordinated to the lien of the mortgage or deed of trust (hereinafter
called "Mortgage") which Landlord is placing on the demised premises, but that
Tenant's rights under this lease shall not be disturbed, impaired or diminished,
its tenancy shall not be disturbed or affected by any default under the
Mortgage and in the event of foreclosure, this lease shall continue in full
force and effect, and Tenant's rights, including any rights to extend the term
as provided herein, shall survive. Landlord agrees to provide to Tenant within
ninety (90) days after the date of this lease such agreements from all present
-22-
Mortgagees and Tenant agrees to cooperate in good faith with Landlord's
mortgagee to complete such agreements.
22. HOLDING OVER. If Tenant remains in possession after the expiration of
------------
the term of this lease, Tenant shall occupy the demised premises as a Tenant
from month-to-month, but both Landlord and Tenant shall otherwise be subject to
all of the provisions of this lease applicable during the last year of the lease
term; provided, however, if Tenant fails to surrender and vacate the demised
premises within thirty days after Tenant's receipt of written notice to vacate
from Landlord, Tenant shall pay monthly, as liquidated damages, an amount equal
to one hundred thirty-five percent (135%) of the monthly fixed rental payment
due for the last month of the lease term immediately preceding said holding
over, for as long as Tenant remains in possession of the demised premises.
23. NOTICES All notices provided for in this lease shall be in writing and
-------
unless otherwise stated shall be deemed to have been given when addressed as set
forth below and (1) deposited in the United States mail sent via Certified Mail,
Return Receipt Requested, and any notice sent in this manner shall be deemed
given even if the party to whom such notice is sent refuses to accept delivery,
or (ii) sent by commercial overnight national delivery service capable of
providing written proof of delivery:
As to Landlord THE XXXXX GROUP, LLC 0000
Xxxxxxxx Xxxxxxx, XX, Xxxxx X Xxxxxxx, XX
00000
With copy to: Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx & Xxxxx, LLP
SunTrust Plaza, Ste 4300
Xxxxxxx, XX 00000
As to Tenant
For U.S. Mail Lease Administration Department
FAMILY DOLLAR STORES OF GEORGIA, INC.
Xxxx Xxxxxx Xxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
-or-
-23-
For Overnight Lease Administration Department
Delivery FAMILY DOLLAR
STORES OF GEORGIA, INC.
00000 Xxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Either Landlord or Tenant may change the address to which notices are to
be sent by giving notice to the other party of such change of address as
provided in this Paragraph. All payments of rents shall be mailed to the
Landlord at the address designated above. Tenant shall not be obligated to pay
rent to any person or entity other than Landlord until Tenant receives a written
statement signed by Landlord and reasonably acceptable to Tenant designating the
person or entity to receive rent, and if applicable, providing notice of the
transfer of the Landlord's interest in the demised premises.
24. RECORDING Landlord agrees to execute a Memorandum of this lease
---------
acceptable to Tenant which Tenant may record, at its expense, in the appropriate
office for the recordation of real estate conveyances for the county or other
jurisdiction in which the demised premises are located. Landlord shall furnish
an accurate legal description of the demised premises if needed to record the
Memorandum and Landlord shall execute and deliver to Tenant any other
affidavits, statements or documents needed to record the Memorandum.
25. QUIET ENJOYMENT Landlord covenants and warrants that Tenant shall have
---------------
and enjoy during the term of this lease the quiet and undisturbed possession of
the demised premises together with all appurtenances appertaining thereto. Rents
and other charges due under this lease shall xxxxx during any period of time
Tenant is deprived of the use of the demised premises.
26. COMPLIANCE WITH LAWS Landlord shall, at Landlord's sole expense, comply
--------------------
with all requirements of all county, municipal, state and federal laws and
regulations, now in force, or which may
-24-
hereafter be in force, which pertain to (1) any environmental condition of the
demised premises, including without limitation asbestos, radon and hazardous
substances, which is in existence on the date of this lease or which comes into
existence after the date of this lease due to the acts of persons other than
Tenant, its agents or employees, and (ii) any other physical condition of the
demised premises which pertain to those portions of the demised premises that
Landlord is obligated to maintain and repair pursuant to Paragraph 12. Also, if
a sprinkler system must be installed in the demised premises, Landlord shall
perform the work at its expense, and Landlord shall be responsible to maintain,
modify and monitor such systems.
Tenant shall, at Tenant's sole expense, comply with all of the requirements
of all county, municipal, state and federal laws and regulations now in force,
or which may hereafter be in force, which pertain to the operation of Tenant's
business in the demised premises (including, without limitation, Tenant's
handling, storage, transportation, use and disposal of toxic or hazardous or
flammable materials) or which pertain to any physical condition (other than the
presence of asbestos or other hazardous material) of those areas of the demised
premises which Tenant is obligated to maintain and repair pursuant to Paragraph
12.
27. PARAGRAPH HEADINGS ETC. The numbered sections of this lease are
-----------------------
referred to as Paragraphs, and the phrase "this Paragraph" shall mean the entire
numbered Paragraph and not just a grammatical paragraph contained within-a
numbered Paragraph. The Paragraph headings throughout this lease are for
convenience and reference only, and words contained therein shall in no way be
held to explain, modify, amplify, or aid in the interpretation, construction or
meaning of the provisions of this lease. If any provision of this lease is held
to be invalid or unenforceable, the
25
remainder of this lease shall not be affected, and all other provisions shall be
valid and enforceable to the fullest extent permitted by law. If any words are
stricken from this lease, whether such words are preprinted, typewritten or
handwritten, no inferences shall be drawn as to the parties' intent in striking
the deleted words and this lease and the parties' intent shall be interpreted as
if the stricken words had never appeared. This lease is a negotiated agreement
in which Landlord and Tenant have had equal power in determining its terms, and
Landlord and Tenant agree that any rule of construction that a document is to be
construed against the party who prepared it shall not be applied. The term
"lease year" shall mean the calendar year and shall always end on December 31.
28. FACSIMILE SIGNATURES When this lease is signed by Landlord or Tenant,
--------------------
Landlord or Tenant may deliver this lease to the other party via electronic
facsimile ("fax") or other electronic means. o Facsimile or electronic
signatures shall be as valid and binding upon the parties as are original ink
signatures. If a party (referred to in the remainder of this Paragraph as the
"Sender", whether Landlord or Tenant) who receives a signed lease from the other
(whether such signed lease is an original document or an electronic facsimile)
signs this lease and returns via fax or other electronic means only the
signature page of this lease to the other party (referred to in the remainder of
this Paragraph as the "Receiver"), then the sending of the signature page shall
constitute a declaration by the Sender that this lease has been signed in the
form and content received by the Sender without modification unless the Sender
simultaneously notifies the Receiver that the Sender has made revisions to this
lease and sends the revised pages or a letter describing the revisions along
with the signature page. The facsimile or electronic signature shall not be
-26-
deemed binding upon the parties if the Receiver notifies the Sender that the
Receiver rejects any part of or all of the revisions made to this lease by the
Sender. Without in any way affecting the validity or finality of this lease, the
Receiver of a facsimile lease or signature page may request that the Sender sign
and return one or more original ink counterparts of this lease with the Sender's
signature notarized and witnessed, or attested if applicable, and the Sender
shall promptly comply with the request.
29. CONFIDENTIALITY OF LEASE TERMS AND SALES INFORMATION Landlord agrees
----------------------------------------------------
that all terms of this lease as well as any information provided to Landlord
pertaining to Tenant's gross sales shall remain confidential and shall not be
divulged by Landlord without the written consent of Tenant to anyone other than
Landlord's mortgagees or prospective mortgagees and to bona fide prospective
purchasers of the demised premises.
30. LEASE BINDING ON HEIRS All covenants and agreements of this lease shall
----------------------
extend to and be binding upon the heirs, devisees, executors, administrators,
successors in interest, and assigns of both Landlord and Tenant.
31. RIGHT OF ACCESS Upon reasonable notice. Tenant will permit Landlord,
---------------
its agents, employees and contractors to enter the demised premises during
normal business hours to inspect the same, to perform necessary maintenance or
repairs, to enforce or carry out any provision of this lease, and to show the
demised premises to prospective lenders and bona fide purchasers. Any such
activities by Landlord shall be performed in a manner which will minimize any
interruption of Tenant's business. Landlord shall not place any "For Rent", "To
Let', "For Sale" or similar notice on the demised premises, and any such sign
placed in the common areas shall not indicate that the demised premises are
available for rent other than by reference to size of the demised premises.
-27-
32. USUFRUCT This lease shall create the relationship of Landlord and
Tenant between Landlord and Tenant. Tenant shall only have a usufruct that is
not subject to levy or sale.
33. EXCULPATION Notwithstanding anything in this lease to the contrary,
Landlord shall not be responsible or liable to Tenant for any loss or damage
resulting to Tenant or its property from bursting, stoppage or leaking of water,
gas, sewer or steam pipes or for any damage caused by water leakage, or loss of
property within the demised premises from any cause whatsoever except Landlord's
negligence or willful acts.
34. ESTOPPEL LETTERS Landlord and Tenant agree, from time to time at
reasonable intervals, within thirty (30) days after written request by the other
party, to execute and deliver to the other party a statement certifying to any
existing or prospective mortgagee, purchaser or assignee, that this lease is in
full force and effect, that this lease has not been assigned, modified,
supplemented or amended in any way, that Tenant is in possession of the demised
premises and that to the best knowledge of the certifying party the other party
is not in default, or properly stating the facts if any of such certifications
would not be factual, and stating the date through which fixed rent has been
paid, the expiration date of the then current term, and the number of remaining
options to extend.
-28-
35. ENTIRE AGREEMENT This lease constitutes the entire agreement between
Landlord and Tenant and all understandings and agreements between Landlord and
Tenant are merged in this lease. This lease may not be modified, amended or
supplemented except by an agreement in writing signed by Landlord and Tenant.
IN WITNESS WHEREOF, Landlord and Tenant have caused this lease to be duly
executed and sealed, as of the day and year first above written.
LANDLORD
Witness: THE XXXXX GROUP, LLC (SEAL)
///signed/// ///signed///
---------------- --------------------------------
Notary Public By Xxx X. Xxxxx, Managing Member
TENANT
FAMILY DOLLAR STORES OF GEORGIA, INC.
///signed///
--------------------
By Xxxx Xxxxx
Vice President
Witness: ATTEST:
///signed/// ///signed///
---------------- --------------------------------
Notary Public Xxxxxx X. Xxxxxxxxxx
Assistant Secretary
