EXHIBIT 10.19
COMMERCIAL LEASE AND OPTION FOR PURCHASE AGREEMENT
Between, Landlord, XXXX X. XXXXXXXXXX and
AMERICAN WEAVERS, L.L.C.,
D/B/A AMERICAN WEAVERS in Hiawassee, Georgia, Tenant
Lease
This lease is made and entered into by and between XXXX X. XXXXXXXXXX,
referred to in this contract as landlord, whose address is Post Office Box 272,
in the City of Hiawassee, County of Towns, State of Georgia, and AMERICAN
XXXXXX, L.L.C. D/B/A AMERICAN WEAVERS in Hiawassee, Georgia, Tenant referred to
in this contract as tenant, whose address is 000 Xxxxx Xxxx Xxxxxx, Xxxxxxx,
Xxxxxxx 00000, with local offices located at 0000 X.X. Xxx. 76 East, in the
County of TOWNS, State of Georgia.
Section One
Definitions
1. Specific Definitions. As used throughout this lease, the
following terms have the following meanings:
a. Landlord: Xxxx X. Xxxxxxxxxx.
b. Tenant: American Weavers, L.L.C. d/b/a American Weavers.
c. Premises or Leased Premises: That Tract or parcel of real
property more particularly described in Exhibit "A" attached
hereto and incorporated herein by reference.
d. Building: Refers to the building currently located on the
Premises and as context requires, the new building to be
constructed, collectively, "the Buildings". The new building
to be constructed in accordance with the Contract/Proposal
between Xxxxx Construction Company, Inc. and Xxxx Xxxxxxxxxx,
dated May 20, 1998, and attached hereto as Exhibit "B".
e. Land: The real property on which the building is situated also
known as the Premises.
f. Purpose: This lease is for the purpose of authorizing and
allowing the Tenant to rent the existing building to conduct a
weaving business on the leased premises or land and to
construct a new building on the premises as provided
hereunder. Landlord shall cooperate in the obtaining of all
applicable permits and licenses, zoning applications and
variances. In general, the purpose of this lease shall be to
authorize the business of rug weaving and similar pursuits on
the leased premises.
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g. Tenant's Notice Address: 000 Xxxxx Xxxx Xxxxxx Xxxxxxx,
Xxxxxxx 00000: Attention: Chief Financial Officer.
h. Term: Five (5) years, beginning with the completion of
construction of the new building, [in the event of dispute as
to the date the building is completed and appropriate for
occupancy, both parties shall select one architect to whose
certificate shall be conclusive evidence of the date the
building is suitable for occupancy], and ending five years
after the beginning date. In the event this lease is extended
beyond this ending or later date, "term" means the end of any
such extension period, unless the context indicates otherwise.
i. Rental: The sum of Twelve Thousand Dollars ($12,000.00)
payable monthly in advance.
j. New Building: The building to be constructed. Said building
shall consist of NO LESS THAN 38,000 square feet.
K. Existing Building: The building located on the premises as of
the date of the execution of this contract consisting of
approximately 26,000 square feet.
2. General Definitions. As used throughout this lease, the
following words have the meanings set out after such words, unless the context
in which they appear clearly indicates otherwise.
a. Alteration: Any addition or change to, or modification of, the
premises made by tenant after any initial fixturing period,
including, without limitation, the installation of fixtures,
tenant's trade fixtures, and tenant's improvements as defined
in this lease.
b. Authorized representative: Any officer, agent, employee, or
independent contractor retained or employed by either party,
acting within the authority given him or her by that party.
c. Damage: Death, injury, deterioration, or loss to a person or
injury, deterioration, or loss to property caused by another
person's acts or omissions.
d. Damages: Monetary compensation or indemnity that can be
recovered in the courts by any person who has suffered damage
to the person, property, or rights of such person through
another's act or omission.
e. Destruction: Any damage, as defined in this lease, to or
disfigurement of the premises.
f. Encumbrance: Any deed of trust, mortgage, or other written
security device or agreement affecting the
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premises, and the note or other obligation secured by it.
g. Expiration: The coming to an end of the time specified in the
lease as its duration, including any extension of the term, if
applicable.
h. Good condition: The good physical condition of the premises
and each portion of the premises, including, without
limitation, signs, windows, appurtenances, and tenant's
personal property as defined in this lease. "In good
condition" means first class, neat, and broom clean, and is
equivalent to similar phrases referring to physical adequacy
in appearance and for use.
i. Hold harmless: To defend and indemnify from all liability,
losses, penalties, damages as defined in this lease, costs,
expenses (including, without limitation, attorneys' fees),
causes of action, claims, or judgments arising out of or
related to any damage, as defined in this lease, to any person
or property.
j. Law: Any judicial decision, constitution, statute, ordinance,
resolution, regulation, rule, administrative order, or other
requirement of any municipal, county, state, federal, or other
government agency or authority having jurisdiction over the
parties or the premises, or both, in effect either at the time
of execution of the lease or at any time during the term,
including, without limitation, any regulation or order of a
quasi-official entity or body (such as, board of fire
examiners or public utilities).
k. Lender: Beneficiary, mortgagee, secured party, or other
holder of an encumbrance, as defined in this lease.
x. Xxxx: Charge imposed on the premises by someone other than
landlord, by which the premises are made security for the
performance of an act. Most of the liens referred to in this
lease are mechanics' liens.
m. Maintenance: Repairs, replacement, repainting and cleaning.
n. Person: One or more human beings or legal entities or other
artificial persons, including, without limitation,
partnerships, corporations, trusts, estates, associations, and
any combination of human beings and legal entities.
o. Provision: Any term, agreement, covenant, condition, clause,
qualification, restriction, reservation, or other stipulation
in the lease that defines or otherwise controls, establishes,
or limits the performance required
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or permitted by either party.
p. Rent: Base rental, additional rental, prepaid rent, security
deposit, and other similar charges payable by tenant to
landlord.
q. Restoration: Reconstruction, rebuilding, rehabilitation, and
repairs that are necessary to return destroyed portions of the
premises and other property to substantially the same physical
condition as they were in immediately before the destruction.
r. Successor: Any assignee, transferee, personal representative,
heir, or other person or entity succeeding lawfully, and
pursuant to the provisions of this lease, to the rights or
obligations of either party.
s. Tenant's improvements. Any addition to or modification of the
premises made by tenant before, at, or after commencement of
the term, including, without limitation, fixtures (but not
including tenant's trade fixtures, as defined in this lease).
t. Tenant's personal property: Tenant's equipment, furniture,
merchandise, and movable property placed in the premises by
tenant, including tenant's trade fixtures, as defined in this
lease.
u. Tenant's trade fixtures: Any property installed in or on the
premises by tenant for purposes of trade, manufacture,
ornament, or related use.
v. Termination: The ending of the term for any reason before
expiration, as defined in this lease.
Section Two
Delay in Delivery of Possession
If landlord is unable to deliver possession of the premises as a
result of causes beyond landlord's reasonable control, landlord shall not be
liable for any damage caused for failing to deliver possession, and this lease
shall not be void or voidable. Tenant shall not be liable for rent until
landlord delivers possession of the premises to tenant. Notwithstanding the
above, the lease shall be voidable by either party in the event that
construction on the new building does not begin or ground broken within 9 weeks
of the execution of this lease and option agreement.
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Section Three
Leasing and Payment of Rental
Landlord leases to tenant and tenant rents from landlord the premises
for the term and for the rent as defined in Section One. Tenant agrees to pay to
landlord each installment of rental as provided above.
The rent shall be paid by tenant to landlord without deduction or
offset, delivered to the building office or to such other person or at such
other place as landlord may from time to time designate in writing.
No security or guaranty which may now or subsequently be furnished
landlord for performance by tenant of the covenants or conditions of this lease
shall in any way be a bar or defense to any action in unlawful detainer, or for
the recovery of the premises, or to any action which landlord may at any time
commence for a breach of any of the covenants or conditions of this lease.
SECTION FOUR
Lessee's Option To Purchase Demised Premise
Lessor grants to lessee an option to buy the leased premises after the
first two years of the lease have been completed. After this two year period,
the lessee may elect to purchase the leased premises at a price of to be
determined as follows: The purchase price shall be based on the average of two
appraisals; one appraisal to be provided by an appraiser selected by the
landlord, and one appraiser selected by the tenant.
If the average of the two appraisal is unacceptable to either party or
one appraisal deviates more than ten percent (10%) from the lower appraisal,
then the parties shall mutually select a third appraiser who shall prepare an
appraisal that shall be binding upon the parties.
All appraiser shall be licensed in the State of Georgia and shall be
qualified experts in Commercial Real Estate Valuation.
The option shall be excised in writing, mailed by certified mail to
the landlord. Closing on the property shall be set within 90 days of the
exercise of the receipt of the option notice to the landlord. The option shall
remain in effect throughout a valid lease period. At closing, the purchase price
shall be payable in cash. Said option is conditional upon the tenant's full
performance the lease.
During the term of this lease, the landlord may not transfer or sell the leased
premisses without the written permission of the Lessee. Notwithstanding the
above, should the lessee breach the
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lease in any manner or fashion, this option shall cease by operation of law and
agreement of the parties and the landlord may sell or transfer the leased
premises without the approval of the lessee; however, all other convents,
conditions, and provisions of the lease shall remain in effect. Notwithstanding
the above option, the option shall not operate to prevent the landlord from
borrowing against the leased premises or executing any Deed of Trust, mortgage,
or Deed to Secure Debt. Lessee acknowledges that Lessee's interests as lessee or
under any option agreement is subordinate to the interests of any current or
future lending or financial institution who has a security interest in the
leased premises.
NOTWITHSTANDING THE ABOVE, THE LANDLORD MAY TRANSFER THE PROPERTY TO
ANY STATE, LOCAL OR FEDERAL GOVERNMENT, AUTHORITY OR SUBDIVISION THEREOF, FOR
THE PURPOSE OF DEVELOPING AN INDUSTRIAL PARK.
In the event of the exercise of this option, lessor agrees to convey
the property to lessee by warranty deed free and clear of all encumbrances
except the taxes and assessments which under this lease are to be paid by
lessee. Prior to consummation of the option and during the term of the lease,
lessee may not place deeds to secure debt or deeds of trust on the property.
In the event and on the lessee's exercise of the option to purchase
the premises in the manner provided, a contract for the sale and purchase of the
property exists, and the relationship of lessor and lessee is automatically
terminated, and the lessee shall be in possession of the premises as a vendee
under an executory contract. Whenever lessee shall desire to exercise this
option, it shall give lessor written notice. Lessor will within reasonable time
after receipt of such notice deliver, or cause to be delivered, to lessee a
preliminary title report by private attorney or title company licensed in
Georgia. Defects in title, if any, shown by such report shall be remedied by
lessor within thirty days of notice to Landlord of such defects and Landlord
shall deliver to lessee at the time of closing an owner's policy of title
insurance issued by the company in the amount of the purchase price subject only
to encumbrance, exceptions, and reservations mentioned in this lease.
OPTION TO RENEW FOR ADDITIONAL ONE YEAR PERIOD
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Notwithstanding any provision to the contrary, the Lessee shall have
the option to renew the lease for an additional term of 12 months or one year
during an rental period commencing at the expiration of the initial lease term.
All of the terms and conditions of the lease shall apply during the renewal
terms. This option shall be excised by written notice given to the Landlord not
less than thirty (30) days prior to the expiration of the initial lease term. If
notice is not given in the manner provided herein within the time specified,
this option shall expire.
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Section Five
Use of Premises
The premises are leased to the tenant for the purpose set forth in
this lease and for no other.
Section Six
Alterations, Mechanics' Liens
Tenant shall not make, directly or indirectly, any alterations without
first obtaining the written consent of landlord. Any alteration shall become at
once a part of the realty and belong to landlord subject, however, to landlord's
right to require removal and restoration as provided in this lease. Tenant shall
keep the premises and the building free from any liens arising out of any work
performed, material furnished, or obligations incurred by tenant. Tenant agrees
that if tenant shall make any alterations of the premises, tenant will not take
such action until five days after receipt by tenant of the written consent of
landlord required by this section, in order that landlord may post appropriate
notices to avoid any possible liability with respect to mechanics' liens or
other such claims. Tenant shall at all times permit such notices to be posted
and to remain posted until the completion and acceptance of such work. Consent
for such alterations shall not be unreasonably withheld by landlord.
Section Seven
Work To Be Performed by Landlord
Landlord shall not be required to perform any work upon the premises
of any type or nature unless specifically required by this lease or a special
agreement to that effect is expressed in a rider attached to and forming a part
of this lease and then only to the extent such work is set forth in the rider.
This rider to be effective shall be signed by both landlord and tenant, and
shall clearly identify its applicability to this lease.
Notwithstanding the above, the landlord shall be responsible for
keeping in good repair the roof, the foundation and the exterior walls, and the
septic system serving both building. Notwithstanding, this provision, the lessee
shall be responsible for all repairs resulting from the lessee's direct actions,
whether negligent, unintentional or intentional by lessee or lessee's agents
and/or employees.
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Section Eight
Restrictions on Use
No use shall be made or permitted to be made of the premises, nor acts
done, that will increase the existing rate of insurance upon the building, or
cause a cancellation of any insurance policy covering the building, or any part
of it, nor shall tenant sell, or permit to be kept, used, or sold, in or about
the premises any article that may be prohibited by the standard form of fire
insurance policies. Tenant shall, at tenant's sole cost and expense, comply
with any and all requirements, pertaining to the premises, of any insurance
organization or company necessary for the maintenance of reasonable fire and
public liability insurance covering the building and appurtenances.
Tenant shall not do or permit anything to be done in or about the
premises which will in any way obstruct or interfere with the rights of other
tenants or occupants of the building or injure or annoy them, or use or allow
the premises to be used for any immoral, unlawful, or objectionable purposes. No
loudspeakers or other similar device, system, or apparatus which can be heard
outside the premises shall, without the prior written approval of landlord, be
used in or at the premises. Tenant shall not commit, or suffer to be committed,
any waste upon the premises, or any nuisance (public or private) or other act or
thing of any kind whatsoever that may disturb the quiet enjoyment or cause
unreasonable annoyance of any other tenant in the building.
Section Nine
Compliance with Law
Tenant shall, at its sole cost and expense, comply with all laws
pertaining to tenant's use of the premises, and shall faithfully observe all
laws in the use of the premises. The judgment of any court of competent
jurisdiction, or the admission of tenant in any action or proceeding against
tenant, whether landlord be a party to it or not, that tenant has violated any
law in the use of the premises shall be conclusive of that fact as between
landlord and tenant. Without limiting the generality of the foregoing, the
duties of tenant under this provision shall include the making of all such
alterations of the premises as may be required by law by reason of the
particular manner or mode of use of the premises by tenant, or occasioned by
reason of the failure of tenant to maintain or repair the premises as required
under this lease.
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Section Ten
Indemnity and Exculpations; Insurance
1. Exculpation and Indemnity of Landlord. Landlord shall not be liable
to tenant for any damage to tenant or tenant's property, and tenant waives all
claims against landlord for damage to person or property from any cause. Tenant
shall hold landlord harmless from all damages arising out of any damage to any
person or property occurring in, on, or about the premises and the building. A
party's obligation under this section to indemnify and hold the other party
harmless shall be limited to the sum that exceeds the amount of insurance
proceeds, if any, received by the party being indemnified.
2. Public Liability and Property Damage Insurance. Tenant at its cost
shall maintain public liability and property damage insurance with liability
limits of not less than One Million Dollars and One Million Dollars per
occurrence, and property limits of not less than One Million Dollars per
occurrence insuring against all liability of tenant and its authorized
representatives arising out of and in connection with tenant's use or occupancy
of the premises.
All public liability insurance and property damage insurance shall
insure performance by tenant of the indemnity provisions of this lease. Both
parties shall be named as additional insureds, the policy shall contain
cross-liability endorsements, and shall be primary insurance as far as landlord
is concerned.
3. Increase in Amount of Public Liability and Property Damage
Insurance. Not more frequently than every three years, if, in the opinion of
landlord's lender or of the insurance broker retained by landlord, the amount of
public liability and property damage insurance coverage at that time is not
adequate, tenant shall increase the insurance coverage as reasonably required by
either landlord's lender or landlord's insurance broker.
4. Waiver of Subrogation. The parties release each other, and their
respective authorized representatives, from any claims for damage to any person,
on the property or on or within the premises and other improvements including
the building to be constructed hereunder, and to or from the fixtures, personal
property, tenant's improvements, and alterations of either landlord or tenant in
or on the premises and the buildings and other improvements in which the
premises are located that are caused by or result from risks insured against
under any fire and extended coverage insurance policies carried by the parties
and in force at the time of any such damage. Tenant shall cause each insurance
policy obtained by it to provide that the insurance company waives all right of
recovery by way of subrogation against landlord in connection with any damage
covered by any policy.
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5. Other Insurance Matters. All the insurance required under this
lease shall:
a. Be issued by insurance companies authorized to do business in the
State of Georgia, with a financial rating of at least an A + 3A status as rated
in the most recent edition of Best's Insurance Reports.
b. Be issued as a primary policy.
c. Contain an endorsement requiring 30 days' written notice from the
insurance company to both parties and landlord's lender before cancellation or
change in the coverage, scope, or amount of any policy.
d. Be renewed not less than 20 days before expiration of the term of
the policy.
A Certificate of Insurance shall be provided to the landlord at the
commencement of the term and on each renewal of the policy.
Section Eleven
Rules and Regulations
Tenant shall faithfully observe and comply with the rules and
regulations of the industrial complex as they now exist or as they be later
developed and all reasonable modifications of and additions to it from time to
time put into effect by landlord. Landlord shall not be responsible to tenant
for the nonperformance by any other tenant or occupant of the building of any of
such rules and regulations.
Section Twelve
Utilities
Landlord shall furnish no utilities to the premises. Tenant shall pay
for all services and utilities.
Section Thirteen
Personal Property Taxes
All property taxes assessed by any governmental body upon tenant's
personal property and tenant's improvements shall be paid by tenant and, should
these taxes be applied in any manner to the real property taxes, tenant, upon
demand, will pay such personal property taxes to landlord, who in turn will pay
them to the proper tax collector.
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Section Fourteen
Repair
By taking possession of the buildings leased under this lease, tenant
accepts the total premises as being in good sanitary order, condition, and
repair. Tenant, at tenant's sole cost and expense, shall keep the premises and
every part of it in good condition and repair, damage to it by fire, earthquake,
act of God or the elements excepted. Tenant waives all rights to make repairs at
the expense of landlord as provided in any law, statute, or ordinance now or
subsequently in effect. Upon the expiration or earlier termination of the term,
tenant shall surrender the premises to landlord in the same condition as when
received, ordinary wear and tear and damage by fire, earthquake, act of God or
the elements excepted. No representations respecting the conditions of the
premises or the building have been made by landlord to tenant except as
specifically stated in this lease. Tenant waives all rights under, and the
benefits of, any homestead exemption, and under any similar law, statute, or
ordinance now or hereafter in effect.
Section Fifteen
Restoration of Premises
Tenant agrees that prior to the expiration of the term of the lease,
or upon the earlier termination of the lease, or upon tenant's unlawful
abandonment of the premises, whichever occurs first, tenant will leave the
premises in the same condition as when received, reasonable wear and tear, loss
by fire or other casualty, and acts of God excepted, and if tenant made any
alteration or improvement of the premises, with or without landlord's consent as
required by the terms of this lease, tenant will in all cases restore the
premises substantially to their original condition as of the inception of the
term of the lease (wear and tear, loss by fire or other casualty, and acts of
God excepted) unless landlord has expressly set forth in writing that a
particular alteration or improvement shall not be removed.
Section Sixteen
Entry by Owner
Tenant shall permit landlord and its authorized representatives to
enter the premises at all reasonable times for purposes of inspection,
maintenance, or making repairs or additions to, or alterations of, any other
portion of the building, including the erection and maintenance of such
scaffolding, canopies, fences, and props as may be required, or for the purpose
of posting notices of nonliability for alterations or repairs, or for the
purpose of placing upon the premises any usual or ordinary "for sale" or "for
rent" signs, without any liability to tenant for any loss of occupation or quiet
enjoyment of the premises occasioned by such
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acts, and tenant shall permit landlord, at any time within 90 days prior to the
expiration of this lease, to place upon such premises any usual or ordinary "for
rent" or "to lease" signs.
Section Seventeen
Estoppel Certificates
Tenant shall at any time and from time to time, upon not less than 20
days prior written, request by landlord, execute, acknowledge, and deliver to
such party a statement in writing certifying that this lease is unmodified and
in full force and effect (or if there has been any modification of this lease
that it is in full force and effect as modified and stating the modification or
modifications) and that there are no defaults existing (or if there is any
claimed default, stating its nature and extent) and stating the dates to which
the rent and other charges have been paid in advance. It is expressly understood
and agreed that any such statement delivered pursuant to this section may be
relied upon by any prospective purchaser of the estate of landlord, or any
lender or prospective assignee of any lender on the security of the premises or
the property of which it is a part, or any part of it, and by any third person.
Section Eighteen
Abandonment of Premises
Tenant shall not vacate or abandon the premises at any time during the
term. If tenant abandons, vacates, or no work is done at or upon the premises
for a period in excess of one month, or if tenant surrenders the premises, or is
dispossessed by process of law, or otherwise, any personal property belonging to
tenant and left on the premises shall be deemed to be abandoned, and, at the
option of landlord, such property may either be removed, and stored in any
public warehouse or elsewhere at the cost of and for the account of tenant.
Section Nineteen
Removal of Trade Fixtures of Tenant at End of Term
If tenant shall fully and faithfully perform all of tenant's
obligations under this lease, then tenant may, and upon the request of landlord
shall, remove all trade fixtures installed in the premises by tenant at the
expiration or termination of the term of this lease, or any renewal of this
lease, provided that such removal may be effected without damage to the
premises.
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Section Twenty
Surrender of Lease
The voluntary or other surrender of this lease by tenant, accepted by
landlord, or the mutual cancellation of this lease, shall not work a merger and
shall, at the option of landlord, terminate all or any existing subleases or
subtenancies or operate as an assignment to landlord of any or all of such
subleases or subtenancies.
Section Twenty-One
Holding Over
Any holding over after the expiration of the term of this lease
without the consent of landlord shall be construed to be a tenancy from month to
month at a rent equal to one and one-half the rent payable if this lease were
still in force and effect.
Section Twenty-Two
Grace Period
1. No default or breach of any of the covenants and conditions shall
exist on the part of landlord or tenant until the party claiming default or
breach shall serve upon the other a written notice, as provided in this lease,
specifying with particularity where such default or breach is alleged to exist,
and the other party shall fail to perform or observe such covenant or condition,
as the case may be, within 30 days after the serving of such notice on it.
2. In the event, however, that any penalty be incurred or created, or
interest be charged by reason of lapse of time due to the failure or omission of
such party to have performed or observed such covenant or condition, then such
party shall bear and pay such penalty or discharge such interest as additional
rental under this lease.
3. The foregoing period of grace shall not apply to rent payments or
other payments required of tenant under this lease, the time of such payments
being of the essence of this lease.
4. If either party shall be delayed or prevented from the performance
of any act required by this lease by reason of acts of God, strikes, lockouts,
labor troubles, inability to procure materials, restrictive laws, or other
cause, without fault and beyond the reasonable control of the party obligated
(financial inability excepted), performance of such act shall be extended for a
period equivalent to the period of such delay, provided, however, that nothing
in this section shall excuse tenant from the prompt payment of any rent or other
charge required of tenant except as may be expressly provided elsewhere in this
lease.
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Section Twenty-Three
Landlord's Remedies Upon Default
Landlord shall have the following remedies if tenant commits a
default. These remedies are not exclusive but are in addition to any remedies
now or later allowed by law.
1. Landlord shall have the right to terminate this lease or to have
this lease continue in full force and effect with tenant at all times having the
right to possession of the premises. Upon such termination, landlord, in
addition to any other rights and remedies, including rights and remedies under
the Official Code of Georgia or any amendment to it, shall be entitled to
recover from tenant the worth at the time of award of the amount by which the
unpaid rent for the balance of the term after the time of award exceeds the
amount of such rental loss that the tenant professes could be reasonably
avoided. The worth at the time of award of the amount referred to in this
section shall be computed by discounting such amount at the discount rate of the
Federal Reserve Bank, Atlanta Georgia, at the time of the award plus one
percent. Prior to such award, landlord may relet the premises, if vacated, for
the purpose of mitigating damages suffered by landlord because of tenant's
failure to perform tenant's obligations under this lease.
2. Any proof of tenant of the amount of rent loss that could be
reasonably avoided shall be made in the following manner: Landlord and tenant
shall each select a licensed real estate broker in the business of renting
property of the same type and use as the premises, and in the same geographic
vicinity; such two real estate brokers shall select a third licensed real estate
broker; and the three licensed real estate brokers so selected shall determine
the amount of rent loss that could be reasonably avoided for the balance of the
term of this lease after the time of award. The decision of the majority of such
licensed real estate brokers shall be final and binding upon the parties to this
agreement.
3. As used in this lease, the term "time of award" shall mean either
the date upon which tenant pays to landlord the amount recoverable by landlord
as set forth in this lease or the date of entry of any determination, order, or
judgment of any court or other legally constituted body, or of any arbitrators,
determining the amount recoverable, whichever occurs first.
4. Should landlord, following any breach or default of this lease by
tenant, elect to keep this lease in full force and effect, for so long as
landlord does not terminate tenant's right to possession of the premises
(notwithstanding the fact that tenant may have abandoned the premises), then
landlord, in addition to all other rights and remedies which landlord may have
at law or in equity, shall have the right to enforce all of landlord's rights
and remedies under this lease. Notwithstanding any such election to have this
lease remain in full force and effect, landlord may at any time thereafter elect
to terminate this lease for any previous
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breach or default which remains uncured, or for any subsequent breach or
default. For the purposes of landlord's right to continue this lease in effect
upon tenant's breach or default, act of maintenance or preservation, or efforts
of landlord to relet the property, or the appointment of a receiver on
initiative of landlord to protect its interest under this lease, do not
constitute a termination of tenant's right to possession.
5. In the event landlord elects, upon breach or default of this lease
by tenant, to keep this lease in full force and effect, landlord may, as
attorney-in-fact of tenant, from time to time sublet the premises or any part of
it for any term and at any rent and upon any other terms as landlord in
landlord's sole discretion may deem advisable, with the right to make
alterations, restoration, and maintenance to the premises. Upon each such
subletting:
(a) The tenant shall be immediately liable to pay to landlord, in
addition to indebtedness other than rent due under this lease, the cost of such
subletting and of such alterations and repairs incurred by landlord, and the
amount by which the rent under this lease for the period of such subletting (to
the extent such period does not exceed the term of this lease) exceeds the
amount agreed to be paid as rent for the premises for such period of such
subletting; or
(b) At the option of landlord, rents received from such subletting
shall be applied: first, to payment of indebtedness other than rent due under
this lease from tenant to landlord; second, to the payment of costs of such
subletting and of such alterations and repairs; third, to payment of rent due
and unpaid under this lease; and the residue, if any, shall be held by landlord
and applied in payment of future rents as they become due under this lease. If
tenant has been credited with any rent to be received by such subletting under
option (1) and such rent shall not be promptly paid to landlord by the
subtenant, or if such rent received from such subletting under option (2) during
any month be less than that to be paid during that month by tenant under this
lease, tenant shall pay any such deficiency to landlord. The deficiency shall be
calculated and paid monthly. No taking possession of the premises by landlord,
as attorney-in-fact for tenant, shall be construed as an election on its part to
terminate this lease unless a written notice of such an intention be given to
tenant. Notwithstanding any such subletting without termination, landlord may at
any time thereafter elect to terminate this lease for such a previous breach. At
landlord's option and application, a receiver for tenant shall be appointed to
take possession of the premises and to exercise landlord's right to sublet the
premises as attorney-in-fact for tenant and to apply any rent collected from the
premises as provided in this lease.
6. Nothing in this section affects the right of the landlord to
indemnification for liability arising prior to the termination of the lease for
personal injuries or property damage where the
Page 15
lease provides for such indemnification.
7. If tenant shall be in default in the performance of any covenant to
be performed by it under this lease, then, after notice and without waiving or
releasing tenant from the performance of such covenant, landlord may, but shall
not be obligated to, perform any such covenant, and in exercising any such right
pay necessary and incidental costs and expenses in connection with it. All sums
so paid by landlord, together with interest on it at the maximum rate of
interest per year allowed by law, shall be deemed additional rental and shall be
payable to landlord on the next rent-paying day.
8. Rent not paid when due shall bear interest at the rate of one and
one-half percent interest per month or such other rate as allowed by law from
the date due until paid.
Section Twenty-Four
Attorney's Fees on Default
If either landlord or tenant shall obtain legal counsel or bring an
action against the other by reason of the breach of any covenant, warranty, or
condition of this lease, or otherwise arising out of this lease, the
unsuccessful party shall pay to the prevailing party reasonable attorneys' fees,
which shall be payable whether or not such an action is prosecuted to judgment.
The term "prevailing party" shall include, without limitations, a party who
obtains legal counsel or brings an action against the other by reason of the
other's breach or default and obtains substantially the relief sought whether by
compromise, settlement or judgment.
Section Twenty-Five
Insolvency
The occurrence of any of the following events shall constitute a
breach of this lease by tenant and a default under this agreement:
1. The appointment of a receiver to take possession of all or
substantially all of the assets of tenant;
2. A general assignment by tenant for the benefit of creditors; or
3. Any action taken or suffered by tenant under any insolvency or
bankruptcy act.
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Section Twenty-Six
Assignment or Subletting
1. Tenant shall not assign this lease or any interest in it, and shall
not sublet the premises or any part of it or any right or privilege appurtenant
to this agreement or permit any other person (the agents and servants of tenant
excepted) to occupy or use the premises or any portion of it without first
receiving the written consent of landlord. Landlord agrees not to unreasonably
withhold such consent but may, in lieu of granting such consent, terminate this
lease. A consent to one assignment, subletting, or occupation and use by another
person shall not be deemed to be a consent to any other or further assignment,
subletting, or occupation, nor a waiver of the provisions of this section,
except as to the specific instance covered by it. Any such assignment,
subletting, or occupation without consent shall be void and shall at the option
of landlord terminate this lease. This lease and any interest in it shall not be
assignable as to the interest of tenant by operation of law without the written
consent of landlord.
2. In the event tenant contemplates an action under Section
Twenty-Seven, tenant shall give landlord 90 days' written notice of tenant's
intention to sublease or assign this lease, and such notice shall constitute an
offer by tenant to landlord to terminate this lease and the future rights and
obligations of the parties under this lease. Landlord may accept such an offer
by giving written notice of acceptance to tenant within 30 days of landlord's
receipt of tenant's notice of intention to sublet or assign. Upon acceptance,
this lease shall terminate as of the end of the calendar month in which notice
of acceptance is given to tenant. Tenant shall then surrender the premises to
landlord and the provisions of this lease applicable to termination upon
expiration of the term shall apply. Such termination shall not relieve either
party from liability from any breach or default occurring prior to termination.
3. Tenant shall have the right, in the event of a merger,
consolidation, reorganization, or recapitalization, whether or not tenant
survives as the surviving corporation, to assign or transfer this lease to the
surviving corporation. Such right of assignment or transfer shall, however, be
limited to an assignee whose book value is equal to or greater than the book
value of tenant at the time of such assignment or transfer. In the event tenant
contemplates making an assignment or transfer as provided in this section,
Paragraph 3 tenant shall give 30 days' notice to landlord of its intent to make
such assignment or transfer, and shall furnish to landlord all pertinent
information as to the book value of the proposed assignee. Upon assignment or
transfer, as provided in this section, the liability of tenant shall terminate
and landlord shall look to the assignee for performance under this lease,
provided such assignee agrees in writing to be bound by the terms and conditions
of this lease as though an original signatory to this agreement.
Page 17
4. Any transfer of shares by tenant by reason of which the present
shareholders own less than 51 percent of the outstanding stock of tenant or a
surviving corporation shall constitute an assignment of this lease subject to
the provisions limiting assignment.
5. Except as otherwise expressly provided in this lease, tenant shall
remain fully liable on this lease and shall not be released from performing any
of the terms, covenants, and conditions of this lease unless landlord consents.
6. Tenant immediately and irrevocably assigns to landlord, as security
for tenant's obligations under this lease, all rent from any subletting of all
or a part of the premises as permitted by this lease, and landlord, as assignee
and as attorney-in-fact for tenant, or a receiver for tenant appointed on
landlord's application, may collect such rent and apply it toward tenant's
obligations under this lease, except that, until the occurrence of an act of
default by tenant, tenant shall have the right to collect such rent.
7. In no event shall tenant assign this lease or sublet the premises,
or any portion of it, to any then-existing or prospective tenant of the
building.
8. Tenant agrees to pay to landlord the sum of One thousand Dollars
($1,000.00) to reimburse landlord for all expenses, including attorneys' fees,
incurred by landlord in connection with any requested and permitted assignment
or subleasing. Such a sum shall be in addition to the attorneys' fees and costs
allowed under this lease.
Section Twenty-Seven
Transfer by Landlord; Release From Liability
In the event landlord shall sell or transfer the building or any part
of it, and as a part of such transaction shall assign its interest as landlord
in and to this lease, then from the effective date of such sale, assignment, or
transfer landlord shall have no further liability under this lease to tenant
except as to any matters of liability that have accrued and are unsatisfied as
of such date, it being intended that the covenants and obligations contained in
this lease on the part of landlord shall be binding upon landlord and its
successors and assigns only during their respective periods of ownership of the
fee or leasehold estate, as the case may be.
Section Twenty-Eight
Damage to or Destruction of Premises
In the event of a partial destruction of the premises from any cause
covered by landlord's standard fire and extended coverage
Page 18
insurance, landlord shall immediately repair such destruction, provided the cost
of repair does not exceed the insurance proceeds and such repairs can be made
within 60 days, but partial destruction shall in no way annul or void this
lease, and tenant shall not be entitled to a proportionate reduction of rent
while such repairs are being made. If partial destruction was caused by any risk
not covered by landlord's insurance, or if the cost of repair exceeds the
insurance proceeds payable, landlord may, at its option, make such repairs,
provided the repairs can be made within 60 days, and the lease shall remain in
full force and effect. If the landlord does not elect to make repairs it is not
obligated to make, or if such repairs cannot be made within 60 days, or if such
repairs cannot be made under law, this lease may be terminated at the option of
either party. In the event the building is destroyed to the extent of not less
than thirty-three and one-third percent of the replacement cost of it, landlord
may elect to terminate this lease, whether the premises are injured or not and
without liability to tenant. A total destruction of the premises, or of the
building, shall terminate this lease. In the event of any dispute between
landlord and tenant relative to the provisions of this section, they shall
submit their dispute to arbitration in accordance with the rules of the American
Arbitration Association, and the arbitration shall be final and binding upon
both landlord and tenant, and the cost of such arbitration shall be borne
equally between them.
Section Twenty-Nine
Eminent Domain
If all or any part of the premises shall be taken or appropriated by
any public or quasi-public authority under the power of eminent domain, either
party to this agreement shall have the right, at its option, to terminate this
lease upon notice given within 90 days after the date of such taking or
appropriation. If all or any part of the building shall be taken or appropriated
by any public or quasi-public authority under any power of eminent domain,
landlord may terminate this lease upon notice given within 90 days after the
date of such taking or appropriation. In either of such events, landlord shall
be entitled to, and tenant upon demand of landlord shall assign to landlord, any
rights of tenant to any and all income, rent, award, or any interest whatsoever
which may be paid or made in connection with such public or quasi-public use or
purpose, and tenant shall have no claim against landlord for the value of any
unexpired term of this lease. If a part of the premises shall be so taken or
appropriated and neither party to this agreement shall elect to terminate the
lease, the rent subsequently to be paid shall be equitably reduced.
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Section Thirty
Subordination to Security Deeds
This lease shall be subject and subordinate at all times to all ground
and underlying leases which may now, exist or subsequently be executed affecting
the building and/or the land, and to the lien of any encumbrance in any amount
or amounts whatsoever now or subsequently placed on or against the building
and/or land or on or against any ground or underlying lease without the
necessity of having further instruments on the part of tenant to effectuate such
subordination. Notwithstanding the foregoing, tenant covenants and agrees to
execute and deliver upon demand such further instruments evidencing such
subordination of this lease to such ground or underlying leases and to the lien
of any such encumbrance as may be required by landlord. Tenant irrevocably
appoints landlord the attorney-in-fact of tenant to execute and deliver any such
instrument or instruments for or in the name of tenant. In the event of
termination of any ground or underlying lease, or in the event of foreclosure or
exercise of any power of sale under any encumbrance superior to this lease or to
which this lease is subject or subordinate, tenant shall upon demand attorn to
the lessor under such ground or underlying lease or to the purchaser at any
foreclosure sale or sale pursuant to the exercise of any power of sale under any
encumbrance, in which event this lease shall not terminate and tenant shall
automatically be and become the tenant of such Lessor under such ground or
underlying lease or such purchaser, whichever shall make demand for it.
Section Thirty-One
Effect of Exercise of or Failure To Exercise
Rights by Landlord
Neither the exercise of nor failure to exercise any right, option, or
privilege under this lease by landlord shall exclude landlord from exercising
any and all other rights, options, or privileges under this lease, nor shall
such exercise or nonexercise relieve tenant from tenant's obligation to perform
each and every covenant and condition to be performed by tenant under this
lease, or from damages or other remedy for failure to perform or meet the
obligations of this lease.
Section Thirty-Two
Waiver
The waiver by landlord of any breach of any term, covenant, or
condition contained in this lease shall not be deemed to be a waiver of such
term, covenant, or condition, or of any subsequent breach of such term,
covenant, or condition, or of any other term, covenant, or condition in this
lease. The acceptance of rent under this lease by landlord shall not be deemed
to be a waiver of any preceding breach by tenant of any term, covenant, or
condition of
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this lease other than tenant's breach in failing to pay the particular rent so
accepted regardless of landlord's knowledge of such additional preceding breach
at the time of the acceptance of such rent.
Section Thirty-Three
Notices
All notices to be given to tenant may be given in writing personally
or by depositing the notices in the United States mail, postage prepaid, and
addressed: if to tenant, at tenant's notice address as set forth in Section One,
Paragraph 1, subparagraph 9, or at such other place or places as tenant may from
time to time designate in writing; if to landlord, at the building office, or at
such other place or places as landlord may from time to time designate in
writing.
Section Thirty-Four
Representations
This lease represents the entire agreement of the parties with respect
to the parties' rights and duties under this lease. Tenant acknowledges that
neither landlord nor any agent, servant, or representative of landlord, or any
person purporting to act on landlord's behalf, has made any representation,
warranty, or statement with respect to the amount of taxes that may or will be
assessed against the premises or about the cost of any insurance required to be
secured by tenant under this lease or any other matter relating to this lease
that is not expressly covered in this lease. With respect to such matters,
tenant is relying upon tenant's own independent investigation and sources of
information, and tenant expressly waives any right tenant might otherwise have
under the law to rescind this lease or to claim damages by reason of the fact
that such taxes or assessments or costs of insurance may be in excess of any sum
deemed reasonable by tenant, or in excess of any amount tenant anticipated
paying under this lease.
Section Thirty-Five
Notice of Surrender or Termination
At least 90 days before the last day of the term, tenant shall give to
landlord a written notice of intention to surrender the premises on that date,
but nothing contained in this lease shall be construed as an extension of the
term or as consent of landlord to any holding over by tenant.
Page 21
Section Thirty-Six
Light and Air
Tenant covenants and agrees that no diminution of light, air, or view
by any structure which may subsequently be erected (whether or not by landlord)
shall entitle tenant to any reduction of rent under this lease, result in any
liability of landlord to tenant, or in any other way affect this lease.
Section Thirty-Seven
Execution
Submission of this instrument for examination or signature by tenant
does not constitute a reservation of or option for lease, and it is not
effective as a lease or otherwise until execution and delivery by both landlord
and tenant.
Section Thirty-Eight
Time Is of the Essence
Time is of the essence of this lease and each and all of its
provisions.
Section Thirty-Nine
Name
Tenant shall not use the name of the building for any purpose other
than as the address of the business conducted by tenant in the premises without
the written consent of landlord.
Section Forty
Entire Agreement; Amendment
This lease contains all the agreements of the parties with respect to
the subject matter and cannot be amended or modified except by a written
agreement.
Section Forty-One
Negation of Partnership
Landlord shall not become or be deemed a partner or a joint venturer
with tenant by reason of the provisions of this lease.
Page 22
Section Forty-Two
Provisions Are Covenants and Conditions
All provisions, whether stated as covenants or conditions, on the part
of tenant shall be deemed to be both covenants and conditions.
Section Forty-Three
Use of Definitions
The definitions contained at the beginning of and in the text of this
lease shall be used to interpret this lease.
Section Forty-Four
Severability
The invalidity, illegality, or unenforceability of any provision of
this lease shall not render the other provisions invalid, illegal, or
unenforceable.
Section Forty-Five
Captions
The table of contents and headings of the sections of this lease are
descriptive and for convenience only, are not a part of this lease, and shall
have no effect on the construction or interpretation of this lease.
Section Forty-Six
Binding Effect on Successors
The provisions of this lease shall, subject to the provisions as to
assignment, apply to and bind the heirs, successors, administrators, and
executors, of the parties.
Section Forty-Seven
Applicable Law
This lease shall be construed and interpreted in accordance with the
laws of the State of Georgia.
Section Forty-Eight
Singular and Plural
The plural shall be substituted for the singular or vice-versa, and
the female for male or neuter in any place where the context may require such
substitution.
Page 23
Section Forty-Nine
Additional Provisions
The attached four (4) pages, Exhibit "A" and Exhibit "B" are
incorporated in this lease and made a part of it.
In witness of this agreement, the parties have executed this agreement
at the place and on the date first above written.
Tenant:
AMERICAN WEAVERS, L.L.C. d/b/a AMERICAN WEAVERS
BY:
SEAL /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
XXXXXX X. XXXXXXXXXX
CHIEF FINANCIAL OFFICER
LANDLORD:
/s/ Xxxx Xxxxxxxxxx
-------------------------------
UGH XXXXXXXXXX
Certification by Tenant
Tenant certifies that tenant has carefully read and understood every
word in this lease and by signing this lease agrees to faithfully comply with
its provisions.
Tenant:
AMERICAN WEAVERS, L.L.C. d/b/a AMERICAN WEAVERS
BY:
SEAL /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------
XXXXXX X. XXXXXXXXXX
CHIEF FINANCIAL OFFICER
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