EXHIBIT 10.9
LEASE AGREEMENT
XXXXX WAREHOUSE, LLC, LANDLORD
AND
CITI TRENDS, INC., TENANT
INDEX
1. Leased Premises
2. Term of Lease and Rent
3. Operating Expenses and Taxes
4. Triple Net Lease
5. Option to Renew
6. General Agreement Between Landlord and Tenant
7. Failure of Landlord to Maintain Premises
8. Alterations and Additions
9. Liens
10. Insurance
11. Waiver of Subrogation
12. Hold Harmless
13. Replacement of Building
14. Condemnation of Premises
15. Entry by Landlord
16. Assignment and Subletting
17. Holding Over
18. Default
19. Quiet Enjoyment
20. As-is
21. Estoppel Certificate
22. Subordination
23. Notices
24. Authority of Parties
25. Leasing Commission or Brokerage Fees
26. Late Charges
27. Interest on Past-Due Obligations
28. Rules and Regulations
29. Security Measures
30. Tenant's Responsibility Regarding Hazardous Substances
31. Easements and Covenants
32. Landlord's Liability
33. Fair Dealing; Consents; Assignment
34. Purchase Option
35. General Provisions
Exhibit A Legal Description
Exhibit B Site Plan
Exhibit C Rules and Regulations
Exhibit D Easements and Covenants
Exhibit E Lien Waiver
LEASE AGREEMENT
THIS LEASE AGREEMENT ("Lease") is made and entered into this 30th day of
September 2004, by and between XXXXX WAREHOUSE LLC, a Georgia limited liability
company (the "Landlord"), and Citi Trends, Inc., a Delaware corporation
("Tenant"). This Lease supersedes and replaces all negotiations and other
agreements between the parties. Tenant has submitted to Landlord a signed
financial statement demonstrating its net worth and showing an ability to
perform.
1. LEASED PREMISES. In consideration of the payment of the rent and the
performance of the agreements of Tenant hereinafter set forth, Landlord does
hereby lease unto Tenant and Tenant does hereby lease from Landlord the real
property and improvements, situate in the County of Chatham, and State of
Georgia, described on Exhibit A (the "Premises"), including a building
encompassing approximately Seventy-One Thousand Eight Hundred Seventy-Five
(71,875) gross square feet (the "Building"), as shown on the drawing attached as
Exhibit B. The Building is numbered as 000 Xxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxx
00000.
Tenant is accepting the Premises "as-is." Tenant will return the trash
compactor to Southern Paper Recovery (or make arrangements to keep the compactor
and have it removed before the Premises are restored).
2. TERM OF LEASE AND RENT.
a. TERM. The initial term of this Lease shall be for two (2) years,
commencing on October 1, 2004 (the "Commencement Date") and terminating on
the last day of September, 2006.
b. ANNUAL BASE RENT. The Annual Base Rent for each full year of the
Term of this Lease shall be payable in lawful money of the United States
and shall be the sum of Two Hundred Fifteen Thousand Dollars ($215,000)
payable in advance in monthly installments of Seventeen Thousand Nine
Hundred Sixteen and 67/100 Dollars ($17,916.67) per month. The Annual Base
Rent is not calculated on a per-square-foot basis and shall not be
adjusted regardless of the actual square footage of the Building or the
Premises except as may elsewhere be provided for in this Lease.
c. OPERATING EXPENSE RENT. This is a triple-net lease. Subject to
the provision below concerning expenses on parking lots, roof and
structure in excess of $10,000, in addition to the payment of Annual Base
Rent, Tenant shall pay any and all property and maintenance costs and all
operating expenses, taxes, and insurance attributable to the Premises
("Operating Expense Rent"), whether directly under Section 3 or under
Section 4 or by reimbursing Landlord or some combination thereof.
d. PAYMENT OF RENT. Any and all Annual Base Rent and the amount of
the Operating Expense Rent, if any, paid directly to Landlord
(collectively "Rent") shall be paid in advance on or before the first day
of each calendar month during said term at the office of Landlord at 000
Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxx 00000, or at such other place as
Landlord may designate from time to time in writing. In the event rent due
under this Lease shall commence (or end) on any day other than the first
(or last) day of a calendar month, the rental payments for the partial
month shall be prorated to reflect the actual number of days the Premises
were under lease.
3. OPERATING EXPENSES AND TAXES.
a. The term "Operating Expenses and Taxes" means the sum of:
(1) All operating expenses of any kind or nature with respect
to the Premises and shall include, but not be limited to, the
following costs:
(a) building supplies;
(b) utility costs incurred in connection with all energy
sources for the Building, such as natural gas and electricity;
(c) water and sewer service;
(d) janitorial services required by the Lease;
(e) general maintenance of the Premises, including but
not limited to the interior, the exterior, the roof, and the
heating, electrical, and air conditioning systems of the
Building, but excluding repairs of the parking lot, roof and
structure beyond $10,000 per occurrence;
(f) landscaping and maintenance of the Premises;
(g) maintenance, repair, replacement, and striping of
all parking areas, subject to the limitation contained in (e);
(h) fire and extended coverage, public liability
insurance, "all risk" insurance, rental value insurance
covering a period of twelve (12) months, and all other
insurance required to be obtained by the Lease;
(i) labor costs incurred in the operation and
maintenance of the Premises, including wages and other
payments, costs to Landlord for workmen's compensation and
disability insurance, payroll taxes, and reasonable fringe
benefits;
(j) legal, accounting, inspection, and consultation fees
reasonably and necessarily incurred in connection with any
breach of this Lease if Landlord is the prevailing party;
(k) expenditures necessary to comply with ADA and any
other laws, rules, regulations, or orders of any governmental
authority having jurisdiction and expenditures solely of an
energy conservation, security, or handicapped access nature
required by any laws, rules, regulations, or orders of any
governmental authority having jurisdiction.
(2) All taxes and assessments of any kind or nature against
the Premises, including but not limited to:
(a) any form of assessment, special assessment, license
fee, license tax, business license fee, business license tax,
commercial rental tax, levy, charge, penalty, or other tax
imposed by any authority having the direct
power to tax, including any city, county, state, or federal
government, or any school, agricultural, lighting, water,
drainage, or other municipal, improvement, or special
district, against the Building, the Premises, or any legal or
equitable interest of Landlord therein but excluding
Landlord's income tax; and
(b) any assessment, tax, fee, levy or charge in
substitution, partially or totally, of or in addition to any
assessment, tax, fee, levy, or charge which may be imposed by
governmental agencies for such services as fire protection;
street, sidewalk, and road maintenance; refuse removal; and
for other governmental services.
(3) Operating Expenses and Taxes shall not include:
(a) depreciation and amortization of Landlord;
(b) interest and principal payments on mortgages and
other debt, financing and refinancing costs, if any, of
Landlord;
(c) any leasing or brokerage commission or compensation,
including any advertising or promotional expense (except in
the event of a breach);
(d) repair expenses of the parking lots, roof, or
structural that are in excess of $10,000 per occurrence. (For
parking lot repairs, the only expenses for which Landlord
shall be liable are expenses in excess of $10,000 for each
occurrence to repair the parking lot to the condition it is
now; Landlord shall not be responsible for any upgrades.)
(e) payments to any affiliate of Landlord for goods or
services in excess of "market" costs;
(f) Landlord's federal, state, or local income tax; and
(g) Landlord's executive salaries and bonuses.
(4) "Operating Cost Year" means the twelve- (12) month period
beginning on the Commencement Date of this Lease and any twelve-
(12) month period thereafter.
b. Any Operating Expense Rent payable by Tenant shall be payable as
follows, unless otherwise provided: During the term hereof, Tenant shall
pay to Landlord monthly in advance and every month thereafter during the
initial term one-twelfth (1/12th) of the estimated amount of such
Operating Expense Rent as determined by Landlord (and, if possible, based
on the actual expenses for the preceding twelve- (12) month period). Such
initial budget may be adjusted at the end of each twelve- (12) month
period by Landlord, based on actual and expected increases; and Tenant
shall pay installments of Operating Expense Rent according to such
estimate or any adjustment thereof. In the event such estimated Operating
Expense Rent exceeds the actual Operating Expense, Landlord shall credit
Tenant for any excess payment within thirty (30) days of the end of each
twelve- (12) month period. In the event such estimated Operating Expense
Rent is less than the actual Operating Expense, Tenant shall pay the
difference to Landlord promptly within thirty (30) days of demand
therefor.
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c. Landlord shall maintain books of account, which shall be open
during normal business hours to Tenant and its representatives for audit
and inspection for one (1) year after billing for Operating Expense Rent
so that Tenant can determine that such Operating Expense costs have, in
fact, been paid or incurred and are within the definition of Operating
Expenses. Tenant shall give Landlord at least thirty (30) days' notice of
such inspection. Tenant shall pay the costs of such audit and any of
Landlord's out-of-pocket expenses associated therewith.
d. Even though the Lease has expired and Tenant has vacated the
Premises, when the final determination is made of Tenant's share of actual
Operating Expense for the previous twelve- (12) month period, Tenant
shall, within thirty (30) days after receipt of written demand therefore
together with reasonably detailed support for the charges, pay any
increase due over the estimated amount previously paid and, conversely,
any overpayment made shall be rebated by Landlord to Tenant within thirty
(30) days after Landlord has determined the amount of Operating Expense
has exceeded costs incurred. Failure of Landlord or Tenant to submit
statements as called for herein shall not be deemed to be a waiver of
Tenant's and/or Landlord's requirement to pay sums as herein provided,
unless Landlord fails to submit a final invoice within one (1) year after
the Lease terminates or Tenant fails to request a final invoice within one
(1) year after the Lease terminates.
e. Notwithstanding subsections (b), (c), and (d) above, Tenant shall
arrange for and perform all maintenance and repairs and other items that
would constitute operating expenses hereunder (except for payment of real
estate taxes and Landlord's insurance). Notwithstanding the foregoing,
Tenant shall pay in advance to Landlord monthly one-twelfth (1/12) of the
taxes.
f. Tenant shall pay upon execution hereof and yearly thereafter to
Landlord an amount equal to one (1) year's payment of the insurance
Landlord may maintain under Section 10 below or elsewhere.
4. TRIPLE NET LEASE.
It is the purpose and intent of Landlord and Tenant that this Lease be a
triple net Lease.
a. Notwithstanding anything to the contrary anywhere hereunder,
including in Sections 2, 3, 4, and 6, Tenant shall be responsible, at its
sole cost and expense, for the entire and full maintenance, repair, and
upkeep of the Premises and the Building and for the maintenance, repairs,
replacements, and matters, including but not limited to those described in
said sections and elsewhere; provided, however, Tenant shall not be
responsible for repairs to parking lot, roof, or structure more than
$10,000 per occurrence. (For parking lot repairs, the only expenses for
which Landlord shall be liable are expenses in excess of $10,000 for each
occurrence to repair the parking lot to the condition it is now. Landlord
shall not be responsible for upgrades.) Tenant shall keep the Property,
Premises, Building, grounds, and parking lot in good working order and
repair and shall fix or replace all items which are broken. Tenant shall
comply with all laws, rules, regulations, codes, and ordinances, at its
expense. Landlord and its agents shall be entitled to periodically enter
the Premises for the reason of inspection and to observe whether the
Tenant is properly maintaining the Premises. Landlord shall be under no
duty to inspect. If Landlord does inspect, such inspection shall not be a
waiver of any right of Landlord or duty of Tenant. If after inspection of
the Premises by Landlord, Landlord makes a good-faith determination that
the maintenance is inadequate, Landlord shall notify Tenant in writing of
such determination. In the event Tenant fails to correct such situation
within thirty (30) days of receipt of such
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notice or if the nature of the situation is such that it cannot reasonably
be corrected within a period of thirty (30) days and work thereon has not
been initiated and diligently pursued to completion, Landlord shall have
the right to declare a default; and Landlord shall also have the right to
elect to perform and assume the maintenance and repair of the Premises and
to perform the obligations set forth in Sections 2,3,4, and 6 hereof, all
at Tenant's expense. In either event, the provisions of Sections 2,3,4,
and 6.b. relating to maintenance shall apply.
b. Under Sections 3.e. and 4.a. above, Tenant shall be responsible
for and shall provide all service, maintenance, repair, and replacement to
the Premises except those repairs or replacements excluded in Section 3a,
including but not limited to that required under the definition of
Operating Expenses, including (without limitation) mechanical systems,
lighting, roof, utilities, roads, parking, landscaping, and grounds. Such
activities shall be at least consistent with the standard of service for
similar buildings. If Tenant does not comply, Landlord, at its option
thereafter, may provide all of such service, at Tenant's expense.
c. In connection with any repair where Tenant asks for
reimbursement, Tenant will notify Landlord at least twenty (20) days prior
to initiating the repair and provide copies of the bids and detailed
information on the repair at that time. Landlord shall only be liable for
costs where the notices were timely given and only for reasonable and
necessary expenses above the $10,000 per occurrence for parking lot, roof,
and structure.
d. Tenant shall provide telephone service, comprehensive general
liability insurance, xxxxxxx'x compensation insurance (or its equivalent),
and security services and insurance on Tenant's property, all at Tenant's
sole cost.
e. At Landlord's option, Landlord (if it is providing services at
Tenant's expense) may delegate the responsibility of providing services
under this Lease to one or more rental managers or, with Tenant's prior
consent, to Tenant.
5. OPTION TO RENEW. Tenant shall have the option to renew and extend this
Lease for one (1) additional term of one (1) year, as long as Tenant is not in
default of the lease beyond any applicable cure periods.
a. Tenant is given the option to extend the term on all the
provisions contained in this Lease, including Annual Base Rent, for a one-
(1) year period ("First Extended Term") by giving written notice of
exercise of the option ("First Option Notice") to Landlord at least six
(6) months but not more than one (1) year before the expiration of the
initial term.
b. Tenant, if it exercises the option in a. above and is not in
default beyond any applicable cure periods, is given the option to extend
the terms for a two- (2) year period (the "Second Extended Term") by
giving written notice of exercise of the option (the "Second Option
Notice") to Landlord at least six (6) months prior to the end of the first
extended term but not more than one (1) year prior to the end of the first
extended term. If Tenant exercises this option, the following shall be
applicable:
(1) The Annual Base Rent shall be the greater of (a) $236,500
per year, payable in advance monthly or (b) an amount determined by
the Consumer Price Index. The index used shall be the Consumer Price
Index for Savannah, Georgia, if available, or the area selected by
Landlord near Savannah, Georgia. The amount shall be the Annual Base
Rent multiplied by a fraction, the denominator (top) of which is the
Consumer Price Index for the month which is six (6) months prior to
the beginning of the second extended term and the numerator (bottom)
of which is the
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same Consumer Price Index for the month which is six (6) months
prior to the date of the initial term of this Lease.
(2) If Tenant exercises this second extended term, the figure
of $10,000 found in Sections 3.a.(1)(e), 3.a.(3)(d), 4.a., and 4.c.
shall be changed to $150,000.
c. Tenant shall have no other right to extend the term beyond that
provided above.
6. GENERAL AGREEMENT BETWEEN LANDLORD AND TENANT:
a. For and in consideration of leasing of the Premises aforesaid,
Tenant does covenant and agree as follows:
(1) to pay the rent for the Premises hereinabove provided
promptly when due and payable;
(2) to pay directly to the provider all charges for telephone
services and utilities to the Premises promptly when due and
payable;
(3) except as specifically permitted herein, to order no
improvements or repairs and, at the expiration of this Lease, to
surrender and deliver up the Premises in at least as good order and
condition as when the same were entered upon, ordinary wear and tear
excepted;
(4) to use the Premises for warehousing, distribution, office,
and related business purposes and for no other purposes unless
approved in advance by Landlord in writing, which approval will not
be unreasonably withheld; to use the Premises for no purposes
prohibited by the ordinances of the city or county in which the
Premises are located or by the laws, rules, regulations, and codes
of the United States or the State of Georgia, now in force or
hereafter enacted; and for no unlawful purpose whatsoever; Tenant
agrees not to request approval for any manufacturing activity or any
activities involving storage of Hazardous Substances;
(5) to neither permit nor suffer any disorderly conduct, odor,
noise, dust, or nuisance about the Premises having a tendency to
unreasonably annoy or unreasonably disturb any persons occupying
nearby properties;
(6) to commit no waste on the Premises;
(7) to not allow or permit heavy trucks on asphalt;
(8) to fully comply with all federal, state and local codes,
statutes, laws, and ordinances ("Law"). Tenant shall be responsible
to make and pay for any and all repairs and alterations to the
components of the Premises (subject to the terms and provisions of
this Lease) and to any appurtenances situated upon the Premises that
may be required of the Landlord or Tenant as a result of any Law in
effect at the time of execution of this Lease or which may be
enacted during the term of this Lease.
(9) to neither permit nor suffer the Premises, or the walls,
floors, doors, windows, roof, or ceiling thereof, to be endangered
by overloading;
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(10) to permit Landlord to place a For Rent sign upon the
Premises at any time one hundred eighty (180) days before the
expiration of the term or any extended term of this Lease; and
(11) to surrender and deliver up the possession of the
Premises promptly at the expiration of this Lease or in case of
termination of this Lease on account of a breach of any one or more
of the covenants or agreements hereof.
b. For and in consideration of this Lease, Tenant does covenant and
agree to pay all Operating Expenses and Taxes, including (without
limitation) assessments for water and sewer charges levied against such
Premises and all charges for heating, cooling, gas, power, light,
telephone, and all other services and utilities applied to the Premises:
(1) to keep and maintain all exterior and interior
improvements upon the Premises (including lighting, landscaping, and
blacktop or its equivalent) clean and neat in appearance and in good
order and repair and to repair and maintain the same as the need
arises;
(2) to furnish building standard heating and ventilating and
air conditioning for the office space as appropriate for the season;
(3) to furnish janitorial service for the Building.
7. FAILURE OF LANDLORD TO MAINTAIN PREMISES. If Landlord refuses or
neglects to pay an amount required under Section 3.a. and under Section 4.c.
(which is only to pay for the reasonable costs for parking lot, roof, and
structure repair costs above $10,000 per occurrence and any other matters that
Landlord elects to do) and if Tenant has paid all amounts due hereunder and
performed hereunder and complied with Section 4.c., Tenant may deduct the amount
owed by Landlord from rent, with applicable interest. This shall be Tenant's
sole remedy, notwithstanding any other provision herein.
8. ALTERATIONS AND ADDITIONS.
a. Tenant shall not make or allow to be made any alterations,
additions, or improvements to or of the Premises or any part thereof
without the prior written consent of Landlord, which shall not be
unreasonably withheld. Any alterations, additions, or improvements to or
of the Premises (but excepting furniture and equipment) and fixtures shall
become a part of the realty and belong to Landlord and shall be
surrendered with the Premises at the expiration of this Lease, at
Landlord's option. No consent shall be needed for any non-structural
alterations, additions, or improvements to the Premises which (i) cannot
reasonably be expected to decrease the value of the Premises and (ii) the
cost of which does not exceed $40,000.
b. In the event Landlord consents to the making of any alterations,
additions, or improvements to the Premises by Tenant, the same may be made
by Tenant at Tenant's sole cost and expense in accordance with all
applicable codes, ordinances, and other governmental regulations or, by
mutual agreement, by Landlord at Tenant's sole cost.
9. LIENS. Tenant shall keep the Premises free of mechanics',
materialmen's, judgment, tax, and all other liens and encumbrances, including
but not limited to those arising out of any construction or other work done for,
or debts incurred by, Tenant. Not less than twenty-one (21) days prior to the
commencement of any construction, alteration, or addition to the Premises,
Tenant shall notify Landlord in writing of its intention to commence the same
and provide written evidence of its
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ability to pay for the work; and Landlord shall have the right to post and
maintain on the Premises such notices of non-responsibility as may be allowed
under applicable law.
10. INSURANCE.
a. Tenant agrees to provide comprehensive general liability
insurance with combined single limits of not less than $2,000,000 per
occurrence, written with a company authorized to do business in the State
of Georgia and having a Best's Rating of at least A or its equivalent, and
shall name Landlord, Landlord's mortgagees, or their assigns under said
insurance policy as additional named insureds. The limit of said insurance
shall not, however, limit any liability of Tenant here under. Tenant shall
furnish to Landlord a certificate of insurance indicating that said policy
is in full force and effect, that the premium is fully paid, that Landlord
and Landlord's mortgagees have been named as additional insureds, and that
said policy will not be canceled unless at least thirty (30) days' prior
written notice of the proposed cancellation has been given to Landlord and
Landlord's mortgagees.
b. Landlord shall obtain and provide fire and extended coverage and
property damage insurance in an amount equal to the fair market value of
the Premises, written with a company authorized to do business in the
State of Georgia and having a Best's Rating of at least A minus or its
equivalent, and may, at Landlord's option, name Tenant under said
insurance policy as an additional insured. Upon at least ten (10) days'
prior written request, Landlord shall furnish Tenant a certificate of
insurance indicating that said policy is in full force and effect, that
the premium is fully paid, and that said policy will not be canceled
unless at least thirty (30) days' prior written notice of the proposed
cancellation has been given to Tenant. Said policy may contain rental
interruption insurance, at Landlord's option. Tenant shall reimburse
Landlord for the full and complete cost of said policy or, at Landlord's
option, shall pay the xxxx for said policy within ten (10) days of
presentment.
c. Tenant shall purchase workmen's compensation insurance (or its
equivalent) in compliance with all state, federal, and other governmental
laws, rules, and regulations.
d. Tenant shall fully insure any and all personal properly and trade
fixtures owned by Tenant on the Premises.
e. All insurance of Tenant under this Lease shall be written with an
insurance company licensed to do business within the State of Georgia,
with ratings of A and above, and not disapproved by Landlord (which
disapproval shall not be unreasonable), with such policies to be
non-assessable and fully paid and with thirty (30) days' prior notice to
Landlord before cancellation.
f. Notwithstanding anything herein to the contrary, Tenant shall
maintain at least the amounts and coverages which are customarily
maintained, including umbrella coverage. If it is customary to have more
insurance or higher limits, Landlord may require Tenant to obtain such
additional insurance.
g. Upon request, Tenant will provide evidence of insurance. If
Tenant fails to secure any policy, Landlord, at its option, may secure the
policy, at Tenant's expense.
h. Tenant shall cause Landlord and Xxxxxxx Xxxxx III to be named
insureds or additional insureds, as their interests may appear, under any
policy which Tenant obtains.
11. WAIVER OF SUBROGATION. Landlord and Tenant agree to request in any
policy providing fire and extended coverage insurance and any other property
damage insurance as
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required hereunder a waiver of any right of subrogation any such insurer of
either party may acquire or claim against the other party by reason of the
payment of any loss under such insurance with respect to damage to the Premises.
12. HOLD HARMLESS. Tenant agrees to and shall indemnify and hold harmless
(including reasonable attorney's fees) Landlord against and from any and all
claims arising from any negligent act or omission of Tenant and its officers,
agents, and employees or arising out of the Premises or for a breach hereunder.
13. REPLACEMENT OF BUILDING.
a. In the event of a casualty to the Premises, a portion thereof, or
any portion of the Building which causes the Building to become
untenantable or prevents Tenant from using the Premises and the Building
for their intended purpose on account of damage by fire, act of God, or
other casualty, Landlord shall be given the option, in Landlord's sole
discretion, to correct the deficiency or condition which shall render the
Premises untenantable or to terminate this Lease.
b. Tenant shall immediately notify Landlord of any damage to the
building. Within twenty (20) days after receipt of written notice from
Tenant describing the damage to the Premises, Landlord shall notify Tenant
in writing as to whether or not it elects to repair the same. If in the
reasonable opinion of Landlord it is not feasible to repair or rebuild the
same, Landlord may terminate this Lease. In the event Landlord elects to
repair said Premises, Landlord shall have one hundred twenty (120) days
from the date of its notice to Tenant to effect such repairs; and Landlord
shall diligently pursue the repair or replacement of the Building and the
Premises and shall use commercially reasonable efforts to cause the repair
or restoration to be completed and to restore the Building and Premises to
at least the condition existing on the date immediately preceding the date
the damage occurred. Landlord will not be liable or responsible if the
repairs take longer.
c. During the period from the date of Landlord's receipt of notice
from Tenant of damage to the Premises until the Premises are restored to
their prior condition and possession thereof given to Tenant, the rent
shall xxxxx, but only to the extent loss of rents insurance is paid to
Landlord. Insurance against loss of rents shall be carried on the Premises
at the cost and expense of Tenant. In the event of a scheduled rent loss
on said policy, the appropriate proceeds as a result of the same shall be
paid to Landlord and shall be credited against rent due from Tenant on a
monthly basis for the time the Premises are not tenantable. In the event
said repairs have not been completed within the period above specified,
Tenant, at its option (if the damage was not the result of Tenant's
negligence or the wilful act of Tenant and/or its agents, employees, and
subcontractors), which must be exercised in writing within ten (10) days
from the expiration of the time period specified and prior to completion
of construction, may terminate this Lease. If either Landlord or Tenant
terminates this Lease as provided in this section, any monies due and
owing to Landlord shall be paid by Tenant to the date of the casualty or
the date Tenant vacates the Premises, whichever is later; and all future
obligations on the part of both parties hereto shall cease and Landlord
shall incur no further obligations to Tenant whatsoever from and after
such termination of this Lease.
d. Notwithstanding anything to the contrary contained in this
section, Landlord, at its option, shall not have any obligation whatsoever
to repair, reconstruct, or restore the Premises when the damage resulting
from any casualty occurs during the last twelve (12) months of the term of
this Lease or any extension thereof.
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e. The parties hereto waive the provisions of any statute which
relate to termination of leases when leased property is destroyed and
agree that such event shall be governed by the terms of this Lease.
f. Notwithstanding anything to the contrary contained in this
section, Tenant, as long as Tenant is not in default, may, in the event
Landlord elects to terminate the Lease pursuant to this section, at its
option, within twenty (20) days of termination, elect to purchase the
Premises in accordance with Section 34 of this Lease. In such event, all
proceeds or payments from any Insurance required to be carried under the
terms of this Lease shall be paid to Tenant at closing, other than rental
interruption insurance.
14. CONDEMNATION OF PREMISES.
a. If the entire Premises, at any time during the term of this Lease
or any extension thereof, shall be taken by the exercise of a power of
eminent domain, this Lease shall then terminate as of the date of title
vesting in such proceeding, all rentals shall be paid up to that date, and
Tenant shall have no claim against Landlord or the condemning authority
for the value of the unexpired term of this Lease.
b. In the event of a taking of more than twenty-five (25%) percent
of the Building or the Premises which renders the Premises or Building
unfit for the normal and proper conduct of the business of Tenant, Tenant
shall have the right to cancel and terminate this Lease effective upon the
actual taking. Tenant must exercise such option to terminate no later than
thirty (30) days after such partial taking. All rentals shall be paid up
to that date, and Tenant shall have no claim against Landlord or the
condemning authority for the value of any unexpired term of this Lease. If
this Lease shall not be canceled as above provided, it shall continue in
effect; and the rental after such partial taking shall be that part of the
rental herein agreed to be paid which the value of the untaken part of the
Premises, immediately after the taking, bears to the value of the entire
Premises immediately before the taking. If Tenant's continued use of the
Premises requires alterations and repairs by reason of a partial taking,
Landlord may elect to terminate this Lease within thirty (30) days after
the actual taking or, subject to Tenant's right of termination above
provided, may elect to continue this Lease, in which event Landlord shall
make all necessary alterations and repairs at its expense which are
required because of such partial taking. Until such alterations and
repairs are completed, an equitable abatement of rent shall be made to
Tenant for any portion of the Premises unfit for occupancy and use in the
conduct of Tenant's business or inaccessible for the period during which
same is unfit for such occupancy and use or inaccessible.
c. In the event of any condemnation or taking as aforesaid, whether
whole or partial, Tenant shall not be entitled to any part of the award
paid for such condemnation, Tenant hereby expressly waiving any right or
claim to any part thereof. Although all such damages awarded in the event
of any condemnation are to belong to Landlord, whether such damages are
awarded as compensation for diminution in value of the leasehold or to the
fee of the Premises, Tenant shall have the right to claim and recover from
the condemning authority, but not from Landlord, such compensation as may
be separately awarded or recoverable by Tenant in Tenant's own right on
account of any and all damage to Tenant's business by reason of the
condemnation and for or on account of any cost or loss to which Tenant
might be put in removing Tenant's merchandise, furniture, fixtures,
leasehold improvements, and equipment.
d. Notwithstanding anything to the contrary contained in this
section, Tenant may, in the event any full taking contemplated by this
section occurs, at its option, elect to purchase the Premises in
accordance with Section 34 of this Lease; and Tenant shall be
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entitled to the whole of any award paid for such condemnation or taking up
to the amount of the purchase price.
15. ENTRY BY LANDLORD. Subject to Tenant's security and safety
requirements, Landlord reserves, and shall have, the right to enter the Premises
to inspect or to exhibit the Premises to prospective lenders, purchasers, or
tenants; to post notices of non-responsibility; to post signs; to make repairs
to the Premises or the Building that Landlord may reasonably deem necessary,
without abatement of rent, and may for that purpose erect scaffolding and other
necessary structures where reasonably required by the character of the work to
be performed, always providing that the entrances to the Premises, including all
loading docks, shall not be unreasonably blocked thereby and further providing
that the business of Tenant shall not be unreasonably impeded or disrupted. In
the event of an emergency, Landlord shall have the right to use any and all
reasonable means which Landlord may deem proper to open doors or gates in order
to obtain entry to the Premises or the Building without liability to Tenant.
16. ASSIGNMENT AND SUBLETTING. Tenant shall not assign, transfer,
mortgage, pledge, hypothecate, or encumber this Lease or any interest therein
and shall not sublet the Premises or any part thereof, or any right or privilege
appurtenant thereof, or allow any person (excepting the employees, agents,
servants, licensees, and invitees of Tenant) to occupy or use the Premises or
any portion thereof, or change the use of the Premises without the prior written
consent of the Landlord, which consent will not be unreasonably withheld. A
consent to one assignment, subletting, occupation, or use by another person
shall not be deemed to be a consent to any subsequent assignment, subletting,
occupation, or use by another person. Consent to any such assignment or
subletting shall not relieve Tenant of any liability under this Lease. Any such
assignment or subletting without Landlord's consent shall be void.
Notwithstanding the foregoing, Tenant may assign this Lease or enter into
a sublease without the consent of Landlord if such assignment or sublease is to
a successor entity and part of the sale of all or a substantial portion of the
assets or controlling interest in the securities of the Tenant, the sale of the
pertinent operational division of the Tenant, merger or other corporate
reorganization, or transfer to an affiliated company, provided such assignment
or sublease is for the continued use of the Leased Premises for the purpose set
forth herein and Tenant shall not be released.
17. HOLDING OVER. Should Tenant, or any of its successors in interest,
hold over the Premises, or any part thereof, after the expiration of the term of
this Lease and any renewals and extensions thereof, unless otherwise
specifically agreed in writing signed by both parties, such holding over shall
constitute and be construed as a tenancy from month to month only, subject to
all conditions and obligations required to be performed by the Landlord and
Tenant hereunder; provided, however, if Tenant holds over without the express
written consent of Landlord, all forms of Rent shall be payable at a monthly
rate equal to one and one-quarter times the Rent during the last month of the
term of this Lease.
18. DEFAULT.
a. DEFAULT OF TENANT AND REMEDIES OF LANDLORD:
(1) Tenant shall be in default of this Lease if any of the
following events occur:
(a) The failure of Tenant to make payment of any rent or
other sums required to be paid by Tenant under this Lease when
and as the same shall become due and payable and such failure
continues for five (5) days after Tenant's receipt of notice of
such failure ;
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(b) The failure of Tenant to comply with any of the
covenants, agreements, terms or conditions contained in this
Lease other than those referred to in the foregoing Section
18.a.(1)(a), provided such default continues for a period of
twenty (20) days after written notice thereof from Landlord is
received by Tenant; provided further that Tenant's time to
cure such default shall be extended for such additional time
as shall be reasonably required for the purpose if Tenant
shall proceed with due diligence during such twenty- (20) day
period to cure such default and is unable by reason of the
nature of the work involved to cure the same within said
twenty (20) days;
(c) If (i) a petition is filed against Tenant seeking a
bankruptcy reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief
under any present or future federal, state, or other statute,
law, or regulation and remains undismissed for an aggregate of
ninety (90) days; or (ii) any trustee, receiver, or liquidator
of Tenant or of all or any substantial part of Tenant's
properties or the Premises shall be appointed without the
consent or acquiescence of Tenant and such appointment remains
unvacated for an aggregate of ninety (90) days; or
(d) If Tenant vacates or abandons the Premises for a
period of thirty (30) consecutive days during the term hereof
without payment of rent.
(2) If Tenant is in default as provided in sub-paragraphs
(1)(a), (b), (c), or (d) above or elsewhere, Landlord shall have the
option, without further notice to Tenant or further demand for
performance:
(a) to (i) institute suit against Tenant to collect each
installment of rent or other sum as it becomes due; or (ii)
accelerate the rental due for the balance of the term of this
Lease and xxx for and collect the full amount of such future
rentals (discounted to date of judgment, with interest at
eight percent (8%)); and (iii) enforce any other obligation of
Tenant under this Lease;
(b) as a matter of right, to procure the appointment of
a receiver by any Court of competent jurisdiction upon
application and with notice to Tenant. All rents, issues, and
profits, income, and revenue from the Premises shall be
applied by such receiver to the payment of the rent, together
with any other obligations of Tenant under this Lease; or
(c) to re-enter and take possession of the Premises and
to remove Tenant and Tenant's agents and employees therefrom,
and either:
(i) Terminate this Lease and xxx Tenant for
damages for breach of the obligations of Tenant under
this Lease; or
(ii) Without terminating this Lease, to relet,
assign, or sublet the Premises as the agent and for the
account of Tenant in the name of Landlord or otherwise,
upon the best terms and conditions Landlord may make
with the new tenant for such term or terms (which may be
greater or less than the period which would otherwise
have constituted the balance of the term of this Lease)
and on such conditions as Landlord, in its reasonable
discretion, may determine,
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and to collect the rent therefor; provided Landlord
shall in no way be responsible or liable for any failure
to relet the Premises or any part thereof or for any
failure to collect any rent due upon any such reletting.
In this event, the rents received on any such reletting
shall be applied first to the reasonable expenses of
reletting, including (without limitation) all
repossession costs, reasonable attorneys' fees, and any
real estate commission paid, reasonable alteration
costs, and reasonable expenses of preparing the Premises
for reletting, and thereafter toward payment of the
rental and of any other amounts payable by Tenant under
this Lease. If the sum realized shall not be sufficient
to pay such rent and other charges attributable to
Tenant under this Lease, within five (5) days after
demand, Tenant will pay to Landlord any such deficiency
as it accrues. Landlord may xxx Tenant therefor as each
deficiency shall arise if Tenant shall fail to pay such
deficiency within said time allowed.
(3) In the event Landlord elects to re-enter or take
possession of the Premises, Tenant shall quit and peaceably
surrender the Premises to Landlord, and Landlord may enter upon and
re-enter the Premises and possess and repossess itself thereof and
may dispossess Tenant and remove Tenant and may have, hold, and
enjoy the Premises and the right to receive all rental income of and
from the same.
(4) No such re-entry or taking of possession by Landlord shall
be construed as an election on Landlord's part to terminate or
surrender this Lease or to prefer one form of action unless a
written notice of such intention is served on Tenant.
(5) Notwithstanding any other provision, any amounts due from
Tenant or to Landlord shall bear interest at one and one-half
percent (1-1/2%) per month, compounded monthly.
(6) If either party shall at any time be adjudged in default
hereunder, or if either party incurs any expense in connection with
any action or proceeding instituted by either party reasonably
necessary to protect, enforce or defend its rights under this Lease,
and if the other party shall deem it necessary to engage attorneys
to enforce its rights hereunder, then the prevailing party will be
reimbursed by the other party for the reasonable expenses incurred
thereby, including, but not limited to, courts costs and reasonable
attorneys' fees. These fees and costs will be due if and when a
final judgment or court order shall be obtained confirming or
declaring that such party has committed an event or act of default
under this Lease.
b. DEFAULT OF LANDLORD AND REMEDIES OF TENANT:
(1) Landlord shall be in default of this Lease if any of the
following events occur:
(a) The failure of Landlord to make payment of any sums
required to be paid by Landlord under this Lease when and as
the same shall become due and payable and such failure
continues for twenty (20) days after Landlord's receipt of
written notice of such failure.
(b) The failure of Landlord to comply with any of the
covenants, agreements, terms, or conditions contained in this
Lease other than those
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referred to in the foregoing Section 18.b.(1)(a), provided
such default continues for a period of twenty (20) days after
written notice thereof from Tenant is received by Landlord;
provided further that Landlord's time to cure such default
shall be extended for such additional time as shall be
reasonably required for the purpose if Landlord shall proceed
with due diligence during such twenty- (20) day period to cure
such default and is unable by reason of the nature of the work
involved to cure the same within said twenty (20) days.
(2) If Landlord is in material default after notice and right
to cure as provided above, Tenant, at its election and after further
written notice and if no cure is effected within ten (10) days
thereafter, may terminate this Lease but waives the right to recover
from Landlord damages, costs, and expenses, including reasonable
attorneys' fees and court costs, arising from or caused by
Landlord's default; or, Tenant may continue this Lease without
termination and nonetheless recover from Landlord all such damages,
costs, and expenses, including reasonable attorneys' fees and court
costs, incurred as a result of such default (but not to exceed an
amount equal to twelve (12) months' rent).
(3) Any amounts due from Landlord or to Tenant shall bear
interest at one and one-half percent (1-1/2%) per month, compounded
monthly.
c. GENERAL PROVISIONS UPON DEFAULT:
(1) The enumeration of the foregoing remedies of Landlord does
not exclude any other remedy of Landlord, but all remedies of
Landlord are cumulative and shall be in addition to every other
remedy now or hereafter existing at law or in equity.
(2) No failure by either party to insist upon the strict
performance of any covenant, agreement, term, or condition of this
Lease or to exercise any right or remedy consequent upon a breach
thereof, and no acceptance of full or partial rent during the
continuance of any such breach, shall constitute a waiver of any
such breach or of such covenant, agreement, term, or condition. No
covenant, agreement, term, or condition of this Lease to be
performed or complied with by either party, and no breach thereof,
shall be waived, altered, modified, or terminated except by written
instrument executed by either party. No waiver of any breach shall
affect or alter this Lease, but each and every covenant, agreement,
term, and condition of this Lease shall continue in full force and
effect with respect to any other then existing or subsequent breach
thereof.
(3) No restriction, condition, or other form of limitation on
or accompanying any check or other form of payment to Landlord shall
limit (i) Landlord's right to insist upon the strict performance of
every covenant, agreement, term, and condition of this Lease or (ii)
Landlord's right to exercise every right and remedy consequent upon
a breach hereof. Tenant agrees that Landlord may strike and
disregard any such restriction, condition, or other form of
limitation and retain such payment without being deemed to have
agreed, explicitly or implicitly, to such restriction, condition, or
other form of limitation and without being deemed to have been
unjustly enriched, provided the amount of cash or its equivalent
actually received by Landlord is applied toward any amounts payable
by Tenant under this Lease.
(4) No restriction, condition, or other form of limitation on
or accompanying any check or other form of payment to Tenant shall
limit (i) Tenant's right to insist
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upon the strict performance of every covenant, agreement, term, and
condition of this Lease or (ii) Tenant's right to exercise every
right and remedy consequent upon a breach hereof. Landlord agrees
that Tenant may strike and disregard any such restriction,
condition, or other form of limitation and retain such payment
without being deemed to have agreed, explicitly or implicitly, to
such restriction, condition, or other form of limitation and without
being deemed to have been unjustly enriched, provided the amount of
cash or its equivalent actually received by Tenant is applied toward
any amounts payable by Landlord under this Lease.
19. QUIET ENJOYMENT. Landlord represents and warrants that it has granted
no mortgage on the Premises and that Landlord is the owner of the Premises and
Building, free and clear of all liens and encumbrances, to the best of its
knowledge, and subject to all other matters of record, including those set forth
on Exhibit D. Landlord makes no other warranties, express or implied. Landlord
covenants that if, and so long as, Tenant pays all forms of Rent herein provided
and performs the covenants hereof, Landlord shall do nothing to affect Tenant's
right to peaceably and quietly have, hold, and enjoy the Premises for the term
herein mentioned, subject to the provisions of this Lease. Tenant accepts the
Premises in its existing condition, after thorough inspection, subject to all
zoning ordinances and regulations pertaining to the Premises, without
responsibility or warranty by Lessor; and further Tenant accepts the Premises
subject to easements, rights-of-way, restrictive covenants, and reservations of
record. The Premises have been inspected thoroughly by Tenant and Tenant's
independent inspectors prior to executing this Lease, and the Premises have been
found by Tenant to be satisfactory for Tenant's intended use. Tenant agrees to
accept the Premises in its as-is condition and rely on its own investigation.
20. AS-IS. Tenant hereby acknowledges, certifies, warrants, represents,
and agrees, in connection with the lease of the Premises, that it has thoroughly
examined and studied the Premises and all aspects thereof and has performed
examinations and investigations of the Premises, including, specifically but
without limitation, examinations and investigations for the presence of
hazardous substances, materials, or wastes (as those terms may be defined by
applicable federal or state law, rule, or regulation) on the Premises. Tenant
warrants, represents, and agrees that it is sophisticated and knowledgeable and
that it has relied solely upon its own investigation. Notwithstanding anything
to the contrary herein, it is expressly understood and agreed that Tenant leases
(and if it buys, buys) the Premises "as-is" and "where-is" and with all faults
and problems. Except for the specific representations and warranties of Landlord
specifically set forth herein and in writing in this Lease Agreement, if any,
Landlord is making no representations or warranties, whether express or implied
or by operation of law or otherwise, with respect to the Premises or the
quality, physical condition, or value of the Premises, the income from or
expenses of the Premises, or the compliance of the Premises with applicable
building or fire codes or any local, state, or federal laws or regulations.
Without limiting the foregoing, it is understood and agreed that Landlord makes
no warranty of habitability, suitability, merchantability, or fitness for a
particular purpose. Tenant agrees that Landlord is not liable or bound by any
guarantees, promises, statements, representations, or information pertaining to
the Premises made or furnished by Landlord or by any real estate agent, broker,
employee, servant, or other person representing or purporting to represent
Landlord except as and to the extent as specifically set forth in this Lease
Agreement. Tenant hereby releases and discharges Landlord and all Landlord's
members, managers, and agents for any claims, including but not limited to those
based upon warranty or implied warranty. Tenant further acknowledges and agrees
that the compensation to be paid to Landlord is being given subject to the
foregoing disclaimers. This Lease Agreement supersedes and replaces all prior
agreements, warranties, and representations. Tenant also agrees to indemnify and
hold Landlord and all its members, managers, and agents harmless, including
reasonable attorney's fees and costs, in connection with any claims made or
asserted by Tenant or its successors or assigns inconsistent with this
paragraph.
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21. ESTOPPEL CERTIFICATE.
a. Tenant shall, without charge, at any time and from time to time
hereafter, within twenty (20) days after receipt of a request therefor
from Landlord, certify by written instrument duly executed and
acknowledged to any mortgagee or prospective mortgagee of the Premises or
to any purchaser or prospective purchaser of the Premises as to (i) the
validity and force and effect of this Lease, in accordance with its tenor,
as then constituted; (ii) the fact that this Lease is unmodified or, if
there has been any modification thereof, as to the nature of the
modification or modifications and the validity and force and effect of
such modification; (iii) the existence of any default on the part of any
party hereunder, as to the existence of any offsets, counterclaims, or
defenses thereto; and (iv) any other matters which may be reasonably
requested by Landlord. Any statement delivered pursuant to this section
may be relied upon by any mortgagee or prospective mortgagee of the
Premises or the fee interest herein or by any purchaser or prospective
purchaser of the fee interest herein.
b. Landlord shall, without charge, at any time and from time to time
hereafter, within twenty (20) days after receipt of a request therefor
from Tenant, certify by written instrument duly executed and acknowledged
to any mortgagee or prospective mortgagee of the Premises or to any
purchaser or prospective purchaser as to (i) the validity and force and
effect of this Lease, in accordance with its tenor, as then constituted;
(ii) the fact that this Lease is unmodified or, if there has been any
modification thereof, as to the nature of the modification or
modifications and the validity and force and effect of such modification;
(iii) the existence of any default on the part of any party hereunder, as
to the existence of any offsets, counterclaims, or defenses thereto; and
(iv) any other matters which may be reasonably requested by Tenant. Any
statement delivered pursuant to this section may be relied upon by any
mortgagee or prospective mortgagee of the Premises or the fee interest
herein or by any purchaser or prospective purchaser.
22. SUBORDINATION. Tenant agrees that this Lease is and shall be, at all
times, subject and subordinate to the lien of any mortgage, deed of trust,
financing statement, or other security instrument (collectively "Mortgage")
which Landlord or its assigns shall make covering the Premises and to any and
all advances to be made thereunder and to the interest granted thereby;
provided, however, regardless of any default under any Mortgage or any
possession or sale of the Premises under such Mortgage, Tenant shall not be
relieved of its obligations under this Lease; and so long as Tenant performs all
covenants and conditions of this Lease and continues to pay rent to whomever may
be lawfully entitled to same, this Lease and Tenant's possession thereunder
shall not be disturbed by the holder of the Mortgage or anyone claiming under or
through them. Tenant agrees to execute any and all instruments in writing which
may be required by Landlord to subordinate Tenant's right to the lien of such
Mortgage, subject to the terms of this section.
23. NOTICES. All notices, demands, requests, information, correspondence,
or other documents or instruments required in this Lease to be given by Tenant
to Landlord or Landlord to Tenant shall be in writing, hand delivered or sent by
prepaid certified or registered mail of the United States at the address listed
below or such other place as the parties may designate from time to time by
written notice.
Landlord: Xxxxx Warehouse LLC
c/o Xxxxxxx Xxxxx III
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
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Copy to: Xxxxxxx X. Xxxx, Esq.
Xxxxxxx X. Xxxx, P.C.
2600 Colorado State Bank Building
0000 Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
and to: Attorney Xxxxx Xxxxxxxx
Inglesby, Falligant, Horn, Xxxxxxxxxx & Xxxxxxxx, P.C.
00 Xxxx XxXxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000-0000
Tenant: Citi Trends, Inc.
ATTN: REAL ESTATE DEPARTMENT
000 Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxx 00000
Copy to:
24. AUTHORITY OF PARTIES. Each individual executing this Lease on behalf
of its principal represents and warrants that he is duly authorized to execute
and deliver this Lease on behalf of said party.
25. LEASING COMMISSIONS OR BROKERAGE FEES. Landlord and Tenant warrant and
represent to one another that they have not engaged any real estate broker or
agent in connection with this Lease or its negotiation other than Xxxxxxxx X.
Xxxxx and Xxxx Xxxxx of Xxxxx/Dales, LLC and that all Leasing Commissions or
Brokerage Fees payable to Nelly/Dales, LLC will be paid by Landlord pursuant to
the written agreement dated February 9, 2004 (the "Exclusive Right to Lease").
Xxxxxx/Dales, LLC represents the Landlord.
26. LATE CHARGES. Tenant hereby acknowledges that late payment by Tenant
to Landlord of rent and other sums due hereunder may cause Landlord to incur
costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges and late charges which may be imposed on
Landlord by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any other sum due from Tenant shall
not be received by Landlord or Landlord's agent within five (5) days after such
amount shall be due, without any requirement for notice to Tenant, Tenant shall
pay to Landlord a late charge equal to ten percent (10%) of such overdue amount.
The parties hereby agree that such late charge represents a fair and reasonable
estimate of the costs Landlord will incur by reason of late payment by Tenant.
Acceptance of such late charge by Landlord shall in no event constitute a waiver
of Tenant's default with respect to such overdue amount nor prevent Landlord
from exercising any of the other rights and remedies granted hereunder.
Notwithstanding the foregoing, the late fee shall not be charged for the first
late payment in any Lease term period as long as such payment is made within
fifteen (15) days after written notice) but shall be charged for all late
payments thereafter.
27. INTEREST ON PAST-DUE OBLIGATIONS. Notwithstanding any other provision,
any amount due to Landlord or Tenant not paid when due shall bear interest at
the lower of the rate of one and one-half percent (1-1/2%) per month, compounded
monthly, or the highest rate allowed under Georgia law from the date due.
Payment of such interest shall not excuse or cure any default by
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Tenant under this Lease; provided, however, interest shall not be payable on
late charges incurred by Tenant nor on any amounts upon which late charges are
paid by Tenant.
28. RULES AND REGULATIONS. Tenant agrees that it will abide by, keep, and
observe all reasonable rules and regulations which are attached hereto and
incorporated herein by reference as Exhibit C for the management, safety, care,
and cleanliness of the Building and grounds; the parking of vehicles; and the
preservation of good order therein. Any violations of such rules and regulations
shall be deemed a material breach of this Lease by Tenant.
29. SECURITY MEASURES. Tenant hereby acknowledges that the rental payable
to Landlord hereunder does not include the cost of guard service or other
security measures and that Landlord shall have no obligation whatsoever to
provide the same. Tenant assumes all responsibility for the protection of Tenant
and its agents and invitees from acts of third parties.
30. TENANT'S RESPONSIBILITY REGARDING HAZARDOUS SUBSTANCES.
a. HAZARDOUS SUBSTANCES. The term "Hazardous Substances," as used in
this Lease, shall include, without limitation, flammables, explosives,
radioactive materials, asbestos, polychlorinated biphenyls (PCBs),
chemicals known to cause cancer or reproductive toxicity, pollutants,
contaminants, hazardous wastes, toxic substances or related materials,
petroleum and petroleum products (not to include propane or natural gas),
and substances declared to be hazardous or toxic under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 USC Section 9601, et seq.; the Resource Conservation and
Recovery Act, as amended, 42 USC Section 6901, et seq.; any state or local
laws and any regulations adopted under those acts; or any law or
regulation now or hereafter enacted or promulgated by any governmental
authority.
b. TENANT'S RESTRICTIONS. Tenant shall not cause or permit to occur:
(1) Any violation of any federal, state, or local law,
ordinance, or regulation, now or hereafter enacted, related to
environmental conditions on, under, or about the Premises or arising
from Tenant's use or occupancy of the Premises, including but not
limited to air, soil, and ground water conditions; or
(2) The use, generation, release, manufacture, refining,
production, processing, storage, or disposal of any Hazardous
Substance in excess of legal limits on, under, or about the Premises
or the transportation to or from the Premises of any Hazardous
Substance, except the use and storage of petroleum and petroleum
products.
c. ENVIRONMENTAL CLEAN-UP.
(1) Tenant shall, at Tenant's own expense, comply with all
laws regulating the use, generation, storage, transportation, or
disposal of Hazardous Substances ("Laws").
(2) Tenant shall, at Tenant's own expense, make all
submissions to, provide all information required by, and comply with
all requirements of all governmental authorities (the "Authorities")
under the Laws.
(3) Should any Authority or any third party demand that a
clean-up plan be prepared and that a clean-up be undertaken because
of any deposit, spill, discharge, or other release of Hazardous
Substances that occurs during the term of this Lease,
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at or from the Premises, or which arises at any time from Tenant's
use or occupancy of the Premises, Tenant shall, at Tenant's own
expense, prepare and submit the required plans and all related bonds
and other financial assurances; and Tenant shall carry out all such
clean-up plans.
(4) Tenant shall promptly provide all information regarding
the use, generation, storage, transportation, or disposal of
Hazardous Substances that is requested by Landlord. If Tenant fails
to fulfill any duty imposed under this section within a reasonable
time, Landlord may do so; and in such case, Tenant shall cooperate
with Landlord in order to prepare all documents Landlord deems
necessary or appropriate to determine the applicability of the Laws
to the Premises and Tenant's use thereof, and for compliance
therewith; and Tenant shall execute all documents promptly upon
Landlord's request. No such action by Landlord and no attempt made
by Landlord to mitigate damages under any Law shall constitute a
waiver of any of Tenant's obligations under this section.
(5) Landlord's and Tenant's obligations and liabilities under
this section shall survive the expiration of this Lease.
d. TENANT'S INDEMNITY.
(1) Tenant shall indemnify, defend, and hold harmless
Landlord, any manager of the property, and their respective
officers, directors, beneficiaries, shareholders, partners, agents,
and employees from any and all fines, suits, proceedings, claims,
and actions of every kind and all costs associated therewith
(including, without limitation, attorneys' and consultants' fees)
arising out of or in any way connected with any deposit, spill,
discharge, or other release of Hazardous Substances that occurs
during the term of this Lease, at or from the Premises, or which
arises at any time from Tenant's use or occupancy of the Premises or
from Tenant's failure to provide all information, make all
submissions, and take all steps required by all Authorities under
the Laws and all other environmental laws.
(2) Tenant's obligations and liabilities under this section
shall survive the expiration or termination of this Lease.
31. EASEMENTS AND COVENANTS. The Premises are subject to easements and
covenants of record, including but not limited to those contained in the
instruments described on the attached Exhibit D. Tenant shall not violate said
easements and covenants or take any action, or fail to take any action, that
causes or results in a violation of said easements and covenants.
32. LANDLORD'S LIABILITY. The term "Landlord" as used herein shall mean
only the owner or owners, at the time in question, of the fee title of the
Premises; and in the event of any transfer of such title or interest, Landlord
herein named (and in case of any subsequent transfers, then the grantor) shall
be relieved from and after the date of such transfer of all liability as
respects Landlord's obligations thereafter to be performed; provided, however,
any funds in the hands of Landlord or the then grantor at the time of such
transfer in which Tenant has an interest shall be delivered to the grantee. The
obligations contained in this Lease to be performed by Landlord shall, subject
as aforesaid, be binding on Landlord's successors and assigns, only during their
respective periods of ownership.
33. FAIR DEALING; CONSENTS; ASSIGNMENT. In connection with the performance
of their respective obligations under this Lease, Landlord and Tenant shall act
in good faith and in a commercially reasonable manner.
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34. PURCHASE OPTION. In consideration of this Lease, Tenant shall have the
option (the "Purchase Option") to purchase the Premises described on Exhibit A
attached hereto (collectively the "Demised Premises") for the sum of Two Million
Six Hundred Thousand Dollars ($2,600,000), payable in good funds (with no credit
for any rental amounts). Notwithstanding the foregoing, the option price of
$2,600,000 shall be increased by any amounts Landlord has had to pay or has paid
for maintenance or repairs under this Lease or otherwise from the time of Lease
signing (the "Price"). Tenant's rights to exercise this option after notice of
exercise shall cease if Tenant materially breaches this Lease. As long as Tenant
is not in default hereunder beyond any applicable cure periods and as long as
this Lease is in effect, such Purchase Option may be exercised in writing by
Tenant (the "Optionee"). This Purchase Option may be exercised at any time up to
ninety (90) days prior to the expiration of any terms or extensions (the "Option
Date"). It cannot be exercised after ninety (90) days prior to Lease expiration.
If the Purchase Option is exercised, Landlord shall convey by special warranty
deed, subject to all matters of record, Landlord's interest in the real estate,
to the extent owned by Landlord; and it shall be a condition of the sale that
title to the real estate shall, except as provided herein below, be free from
all tenancies (except Tenant) and occupants (except Tenant). The sale shall
occur within one hundred twenty (120) days of the Option Date. In the exercise
of such option, all monies shall be placed with a title company, as escrowee, of
Optionee's designation; and the settlement of the purchase price and the
conveyance to Optionee shall take place in escrow. At closing, Tenant will
secure and pay for its own owner's policy, issued by a title insurance company
licensed in the State of Georgia in its usual form, brought down to the date of
closing, insuring Optionee against loss or damage to the extent of the purchase
price by reason of defects in or liens upon Landlord's title. Taxes, utilities,
rents, and other current expenses shall be paid by Tenant. Tenant shall pay all
the costs of the transaction, including but not limited to the cost of the
policy, recording fees, escrow fees, documentary transfer taxes, and sales and
use taxes. The Demised Premises will be sold in its as-is condition, without any
representation or warranty of Landlord. Seller will be responsible for paying a
commission of $100,000 to Xxxxx/Dales, LLC, payable only if the transaction
closes. Time is of the essence.
Notwithstanding the foregoing, if Tenant purchases the Property pursuant
to this clause at any time after the first extended term, the Price shall
increase by the greater of (a) ten percent (10%) or (b) an amount based upon the
Consumer Price Index. The index used shall be the Consumer Price Index for
Savannah, Georgia, if available, or the area selected by Landlord near Savannah,
Georgia. The amount shall be the Annual Base Rent multiplied by a fraction, the
denominator (top) of which is the Consumer Price Index for the month which is
six (6) months prior to closing and the numerator (bottom) of which is the same
Consumer Price Index for the month which is six (6) months prior to the date of
the initial term of this Lease. The real estate commission shall not change.
35. GENERAL PROVISIONS.
a. LEGAL COSTS AND EXPENSES. Landlord shall recover from Tenant all
costs and expenses, including reasonable attorneys' fees, in any court
action brought to recover any rent or other sums due and unpaid under the
terms hereof, or for the breach of any of the terms and conditions herein
contained, or to recover possession of the Premises, whether or not such
court action shall proceed to judgment if Landlord is the prevailing
party.
b. SEVERABILITY OF PROVISIONS. If any clause or provision of this
Lease is illegal, invalid, or unenforceable under present or future laws
effective during the term of this Lease, then and in that event, it is the
intention of the parties hereto that the remainder of this Lease shall not
be affected thereby; and it is also the intention of the parties to this
Lease that if any clause or provision is illegal, invalid, or
unenforceable, there be added as a part of this Lease
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a clause or provision as similar in terms to such illegal, invalid, or
unenforceable clause or provision as may be possible and be legal, valid,
and enforceable.
c. RIGHT-OF-WAY. Landlord reserves the right, with Tenant's prior
written approval and consent, which approval and consent will not be
unreasonably or untimely withheld, to grant or devise rights-of-way,
easements, and rights of passage solely for utility and over, on, under,
and to the Premises; provided, however, such grant shall not unreasonably
interfere with Tenant's use and occupancy of the Premises. Tenant shall be
given reasonable advance written notice prior to the start of any
construction work in connection with such grant.
d. ANIMALS. Tenant shall not be permitted to keep any animals in or
about the Premises.
e. AUCTIONS. Tenant shall not conduct or permit to be conducted any
sale by auction in, upon, or from the Premises, whether said auction be
voluntary or involuntary pursuant to any assignment for the benefit of
credits or pursuant to any bankruptcy or insolvency proceedings.
f. DEFINITION OF TERMS. Whenever the words "Landlord" and "Tenant"
are used in this Lease, they are applied to persons, both men and women,
companies, partnerships, and corporations; and in reading this Lease, the
necessary grammatical changes of words required to make the provisions
hereof mean and apply as aforesaid shall be made in the same manner as if
written into this Lease.
g. MARGINAL HEADINGS. The marginal headings and section titles to
the sections of this Lease are not a part of this Lease and shall have no
effect upon the construction or interpretation of any part hereof.
h. PRIOR AGREEMENT AND AMENDMENTS. This Lease and a side letter
dated September 29, 2004, contain all the agreements, warranties, and
representations of the parties hereto with respect to any matter covered
or mentioned in this Lease; and no prior agreements or understandings
pertaining to any such matters shall be effective for any purpose. No
warranties or representations of Landlord, verbal or in writing, not
contained in an agreement shall be binding upon Landlord unless contained
herein or in certain related agreements in writing. No provision of this
Lease may be amended or added to except by an agreement in writing signed
by the parties hereto or their respective successors in interest. This
Lease shall not be effective or binding on any party until fully executed
by both parties hereto.
i. SUCCESSORS AND ASSIGNS. The obligations and rights under this
Lease shall be binding upon and inure to the benefit of the heirs,
administrators, executors, personal representatives, successors, and
permitted assigns of the parties. Any assignment or subletting by Tenant
in violation of the terms of this Lease shall not vest any rights
whatsoever in the assignee or subtenant but will be a breach of this
Lease.
j. TIME. Time is of the essence of this Lease and each and all of
its provisions in which performance is a factor.
k. SHORT FORM LEASE. The parties agree, at the request of either of
them, to execute a Short Form Lease for recording, containing the names of
the parties, the legal description of the Premises, and the term of the
Lease and the cost of recording will be paid
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by the party requesting such recording. Landlord and Tenant agree to
execute any releases requested by the other upon termination.
l. LAW GOVERNING. This Lease shall be construed and enforced in
accordance with the laws of the State of Georgia. The parties hereto
mutually consent to waive any right to a trial by jury.
m. EXPERIENCE. Tenant acknowledges that it is experienced in real
estate matters; has had the opportunity to be represented by competent
counsel, familiar with leasing transactions, in the negotiation,
preparation, and review of this Lease; and that it has reviewed this Lease
in its entirety before executing it. Landlord has recommended to Tenant to
secure legal representation. This document has been prepared by Landlord's
counsel but shall not be interpreted against Landlord.
n. FURTHER INSTRUMENTS. Each party, at the expense of the other
party, shall execute, acknowledge, and deliver to the other party such
instruments and take such other action, in addition to the instruments and
action provided for herein, as the other party may request in order to
effectuate the purpose or provisions of this Lease or any transaction
contemplated herein or to protect or confirm any right created or
transferred hereunder or pursuant to any such transaction.
o. RETURN OF THE PREMISES. At the end of the term of this Lease of
when Tenant departs or upon any Tenant default, Tenant shall return the
Premises to Landlord in a clean, well-kept order and in good condition,
normal wear and tear excepted and subject to any events of casualty dealt
with above.
p. COUNTERPARTS. This Lease may be executed in any number of
counterparts, each of which shall constitute an original and all of which,
when taken together, shall constitute one Lease.
[See signatures on following page]
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IN WITNESS WHEREOF, this Lease is hereby executed the day and year first
above written, in three (3) counterparts, each of which shall be deemed an
original document.
LANDLORD:
XXXXX WAREHOUSE LLC, a Georgia in
limited liability company:
BY: /s/ Xxxxxxx Xxxxx III
-------------------------------------
Its: MANAGER
TENANT:
CITI TRENDS, INC., a Delaware corporation:
BY: /s/ R. Xxxxxx Xxxxxxxx
-------------------------------------
Its: CEO
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EXHIBIT A
LEGAL DESCRIPTION
TRACT ONE: All that certain tract, parcel of land situate, lying and being in
the 8th G.M. District, Chatham County, Georgia, and being known and designated
on a plat as Xxx 00, Xxxxx 0, X.X.X. Xxxxxxxxxx Xxxx Subdivision as prepared by
Xxxxxx, Gay & Xxxx, dated November 1977 and recorded in Subdivision Map Book Q,
folio 3, of the Chatham County records. Said lot as a whole being bounded as
follows: On the North by Lot 12, said subdivision and phase; on the East by a 60
foot drainage right-of-way; on the South by Xxxxxx Road; and on the West by
Xxxxxxx Boulevard. Express reference is hereby made to the above-mentioned plat
for better determining the metes, bounds, and dimensions thereof.
TRACT TWO: All of that certain lot, tract, or parcel of land situate, lying, and
being in the 8th G.M. District, County of Chatham, and State of Georgia, being
known and designated as Lot Twelve (12), Savannah Port Authority Industrial Park
Subdivision, Phase One (1), being a Subdivision of a portion of lands of the
Savannah Port Authority, as shown on a map or plat prepared by Xxxxxx, Gay &
Xxxx, Consulting Engineers, for Savannah Port Authority recorded in the Office
of the Clerk of the Superior Court of Chatham County, Georgia, in Subdivision
Map Book "Q," Page 3. Express reference is hereby made to said Subdivision Map
for better determining the metes, bounds, and dimensions of the property herein
conveyed.
EXHIBIT B
SITE PLAN
[SITE PLAN FIGURE]
EXHIBIT C
RULES AND REGULATIONS
1. Tenant shall not obstruct or interfere with persons performing services
for the Landlord or having business on the Premises and shall not injure or
annoy such persons.
2. Canvassing, soliciting, and peddling on the Premises are prohibited;
and Tenant shall cooperate to prevent such activities.
3. Tenant shall not xxxx or prepare food commercially or place or use any
flammable, combustible, explosive, or hazardous fluid, chemical, device,
substance or material (excepting only propane and natural gas) on the Premises
without the prior written consent of Landlord. Tenant shall comply with the
statutes, ordinances, rules, orders, regulations, and requirements imposed by
governmental or quasi-governmental authorities in connection with fire and panic
safety and fire prevention.
4. Tenant shall not move or install personal properly or fixtures on the
Premises in such a fashion as to unreasonably increase the risk of injury or
cost of insurance; and all such moving shall be at the sole expense, risk, and
responsibility of Tenant.
5. Tenant shall not place within the Building any objects which exceed the
floor weight specifications of the Building without the express prior written
consent of Landlord. The placement and positioning of all such objects within
the Building shall be prescribed by Landlord; and such objects shall, in all
cases, be placed upon plates or footings of such size as shall be prescribed by
Landlord.
6. Tenant shall not deposit any trash, refuse, cigarettes, or other
substances of any kind on the Premises except in the refuse containers provided
therefore. Tenant shall exercise its best efforts to keep the sidewalks,
entrances, passages, courts, lobby areas, garages or parking areas, stairways,
and vestibules on the Premises clean and free from rubbish.
7. Tenant shall permit no loitering by any persons on the Premises.
8. Tenant shall not use the washrooms, restrooms, and plumbing fixtures of
the Building and appurtenances thereto for any other purpose than the purposes
for which they were constructed; and Tenant shall not deposit any sweepings,
rubbish, rags, or other improper substances therein. Tenant shall not waste
water by interfering or tampering with the faucets or otherwise.
9. No signs, awning, showcases, advertising devices, or other projections
or obstructions shall be attached to the outside walls of the Building without
the express prior written consent of Landlord, which shall not unreasonably be
withheld. In the event of the violation without any liability and Tenant shall
reimburse Landlord for the expense incurred in such removal upon demand as
additional Rent under the Lease.
10. Tenant shall not obstruct or in anyway impair the efficient operation
of the Building's heating, ventilating, air conditioning, electrical, fire,
safety, water, sewer, or lighting systems.
11. Access may be had by Tenant to the Premises at any time of the day or
night, seven (7) days a week.
12. For purposes hereof, the terms "Landlord," "Tenant," "Building," and
"Premises" are defined as those terms are defined in the Lease to which these
Rules and Regulations are attached. Wherever Tenant is obligated under these
Rules and Regulations to do or refrain from doing an act or thing, such
obligation shall include the exercise by Tenant of its best efforts to secure
compliance with such obligation by the servants, employees, contractors,
jobbers, agents, invitees, licensees, guests, and visitors of Tenant.
EXHIBIT D
EASEMENTS AND COVENANTS
1. County ad valorem taxes and assessments for 2004 and subsequent years.
2. Any action by a municipal or governmental agency for the purpose of
regulating the use, occupancy or zoning of the Property, or any building
or structure thereon.
3. Unrecorded lien rights, mis-indexed documents, and other matters not
disclosed by an examination of the public records of Chatham County,
Georgia.
4. Easements for public utility services and facilities that serve the
Properly or the improvements located thereon or are located along or
within the boundaries of the Property.
5. Encroachments, overlaps, boundary line disputes, and any other matters
which would be disclosed by an accurate survey and inspection of the
premises.
6. Rights or claims of parties in possession not shown by the public records.
7. Easements, or claims of easements, not shown by the public records.
8. Any lien, or right to a lien, for services, labor, or material heretofore
or hereafter furnished, imposed by law and not shown by the public
records.
9. Taxes or special assessments which are not shown as existing liens by the
public records.
10. Such state of facts as shown on subdivision plat recorded in Subdivision
Map Book Q, Page 3, Chatham County Records.
11. Easement to Savannah Electric and Power Company dated December 22, 1930,
and recorded in Deed Book 27-K, page 10, of aforesaid records.
12. Easement from Savannah Port Authority to Chatham County dated August
20,1976, and recorded in Deed Book 107-H, page 103, Chatham County
records.
13. Easement from Savannah Port Authority to Savannah Electric and Power
Company dated November 29, 1977, and recorded in Deed Book 109-S, page
534, Chatham County records.
14. Easement from Savannah Port Authority to Savannah Electric and Power
Company dated November 23, 1977, and recorded in Deed Book 109-S, page
535, Chatham County records.
15. Declaration of Covenants, Conditions, and Restrictions for Phase I,
Savannah Port Authority Industrial Park Subdivision, dated July 24, 1978
and recorded in Deed Book 111-C, page 114, Chatham County records; as
amended by that certain Declaration of Amended Covenants, Conditions, and
Restrictions for Phase I, Savannah Port Authority Industrial Park
Subdivision, dated February 27, 1980, and recorded in Deed Book 114-M,
page 295, aforesaid records; as extended by that certain Extension of
Declaration of Covenants, Conditions and Restrictions for Phase I,
Savannah Port Authority Industrial Park
Subdivision, dated June 1, 1998, and recorded in Deed Book 193-T, page
272, aforesaid records.
16. Rights of First Refusal of Savannah Port Authority contained in that
certain Warranty Deed from Savannah Port Authority dated November 21,1985,
and recorded in Deed Book 128- R, page 342, aforesaid records. (Release of
Rights recorded on October_______, 2004.)
17. Easement from Xxxxxxx and Xxxxxxx Xxxxx to Savannah Electric and Power
Company dated June 26, 1986, and recorded in Deed Book 131-X, page 179,
Chatham County records.
EXHIBIT E
LANDLORD/MORTGAGEE WAIVER
WHEREAS, CONGRESS FINANCIAL CORPORATION (SOUTHWEST) ("Congress") has, or is
about to enter into, certain financing agreements with Citi Trends, Inc.
("Debtor") pursuant to which Congress has been, or may be, granted a security
interest in any or all of Debtor's personal property including, but not limited
to, inventory, equipment, and signage (hereinafter "Personal Property"), but
excluding fixtures; and,
WHEREAS, the Personal Property has or may become located on, wholly or in part,
the certain real estate located at 000 Xxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxx
00000, the legal description of which is (include metes and bounds, lot and
block, range and section):
000 Xxxxxxx Xxxxxxxxx, Xxxx xx Xxxxxxxx, Xxxxxx of Chatham, State of
Georgia (hereinafter "Premises") and,
WHEREAS, the undersigned has an interest in the Premises as owner, mortgagee or
lessor,
NOW, THEREFORE, in consideration of any financial accommodation extended by
Congress to Debtor, at any time, and other good and valuable considerations,
the undersigned agrees as follows:
(a) That it waives and relinquishes any landlord's lien, all rights of
levy, security interest or other interest the undersigned may now or hereafter
have in any of the Personal Property whether for rent or otherwise;
(b) That the Personal Property may be located on the Premises and is not
and shall not be attached or be deemed a fixture or part of the real estate but
shall at all times be considered personal property;
(c) That it disclaims any interest in the Personal Property (but not
fixtures) and agrees to assert no claim to the Personal Property while Debtor is
indebted to Congress;
(d) That as long as the Lease on the Premises is in effect and Tenant has
occupancy rights, Congress or its representatives may enter upon the Premises to
inspect or remove the Personal Property in the event that Debtor has not cured a
default beyond any applicable cure period;
(e) That as long as the Lease on the Premises is in effect and Tenant has
occupancy rights, Congress, at its option, may enter the Premises upon Debtor's
default for the purpose of repossessing, removing, or selling said Personal
Property, and such license shall be irrevocable and shall continue from the date
Congress enters the Premises for as long as Congress deems necessary but not to
exceed a period of sixty (60) days; provided that Congress timely pays rent at
the then current rate stipulated in the lease, which rent shall be pro-rated
for the period of such occupancy.
(f) That the undersigned does hereby consent to the acquisition by
Congress, at Congress' option, of the absolute ownership of Debtor's interest in
said Lease and does hereby agree that if Congress elects to acquire said
leasehold estate, it will thereupon be recognized as the
Lessee under said Lease. If Congress shall become such Lessee, it may sublease
or assign said Lease with Landlord's prior written consent, such consent shall
not be unreasonably withheld, for the purpose outlined in the use clause of this
lease, and the assignment of said Lease shall not release and relieve Congress
of any obligations thereunder.
(g) The undersigned agrees to give notice in writing by certified or
registered mail of any default (beyond any applicable cure period) by Debtor of
any of the provisions of said Lease or the mortgage upon the premises held by
the undersigned, as the case may be, to:
CONGRESS FINANCIAL CORPORATION (SOUTHWEST)
0000 XXX Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Upon receipt of said notice, Congress shall thereupon have the right, but not
the obligation, to cure said default within ten (10) days thereafter provided
timely notice has been given to Congress by the undersigned. Any payment made or
act done by Congress to cure any such default shall not constitute an assumption
of the Lease or any obligations of Debtor.
This waiver may not be changed or terminated orally and is binding upon the
undersigned and their heirs, personal representatives, successors and assigns of
the undersigned and inures to the benefit of Congress and the successors and
assigns of Congress.
Dated this 30th day of September 2004.
Witnessed By: XXXXX WAREHOUSE, LLC
("LANDLORD")
/s/ Xxxxxxxx X. [illegible] By: /s/ Xxxxxxx Xxxxx, III
--------------------------- --------------------------------
Landlord-Mortgagee (signature)
Xxxxxxx Xxxxx, III, Manager
___________________________ --------------------------------
(printed name)
