EXHIBIT 10.25
STATE OF GEORGIA
COUNTY OF XXXXXX
THIS AGREEMENT made as of the 1st day of June, 1998, by and between
INTERMARK USA, INC., as Landlord (hereinafter referred to as "Landlord"), and
IMAGE INDUSTRIES, INC., having an address of X.X. Xxx 0000, Xxxxxxxx, Xxxxxxx
00000, as Tenant (hereinafter referred to as "Tenant").
W I T N E S S E T H:
WHEREAS, Landlord and Tenant heretofore entered into a Commercial Lease
Contract (the "Lease") respecting certain premises together with the building
thereon located in Kensington, Xxxxxx County, Georgia, and being more
particularly described in the Lease; and
Paragraph 1 Leased property
1. The Landlord, for and in consideration of the rents, covenants,
agreements and stipulations hereinafter mentioned, provided for and
contained, to be paid, kept and performed by the Tenant, has leased and
rented, and by these presents leases and rents, unto the said Tenant, and
said Tenant hereby leases and takes upon the terms and conditions which
hereinafter appear, the following described property (hereinafter called
"Premises"), to wit:
(a) From the period of June 1, 1998 through May
31, 1999, 136,020 square feet located in the old Xxxxxx plant,
(known as Sections X-0, X-0 and A-6)); and
(b) On a month to month basis after June 1, 1998,
141,464 square feet located in the old Xxxxxx plant (known as
Sections B-4)
and being known as Xxxxxxx 000, Xxxxxxxxxx, Xxxxxxx. No easement for light
or air is included in the Premises.
Paragraph 2 Rental and Period of Lease
Tenant agrees to pay Landlord an annual rental in the amount of $225,000,
which shall be paid, commencing promptly on June 1, 1998, and on the first
day of each month thereafter in advance during the term of this Lease, in
equal monthly installments of $18,750. Rent shall be on a pro rata basis
for square footage described in paragraph 1.
Paragraph 3 Default
It is mutually agreed that in the event the Tenant shall default in the
payment of rent herein reserved, when due, and fails to cure said default
within ten (10) days after written notice hereof from the Landlord; or if
the Tenant shall be in default in performing any of the terms or
provisions of the lease other than the provision requiring the payment of
rent, and fails to cure such default within thirty (30) days after the
written notice of default from the landlord; or if the Tenant is
adjudicated bankrupt or if a permanent receiver is appointed for the
Tenant's property and such receiver is not removed within sixty (60) days
after written notice from the Landlord to Tenant to obtain such removal;
or if, whether voluntary or involuntary, Tenant takes advantage of any
debtor relief proceedings under any present or future law, whereby the
rent or any part thereof is, is proposed to be, reduced or payment thereof
deferred; or if the Tenant makes an assignment for benefit of creditors;
or if the Tenant's property or any part thereof should be levied upon or
attached under process against Tenant and not satisfied or dissolved
within thirty (30) days after written notice from Landlord to Tenant to
obtain satisfaction thereof; then, in any said events, Landlord at his
option, may at once, or within six (6) months thereafter (but only during
continuance of such default or condition), terminate this lease by
written notification to the Tenant; where upon this lease shall end. After
an authorized assignment or subletting of the entire premises covered by
this lease, the occurring of any of the foregoing defaults or events shall
affect this lease only if caused by, or happening to the assignee or
sub-tenant. Any notice provide ion this paragraph may be given by
Landlord, or Agent herein named. Upon such termination by Landlord, Tenant
will at once surrender possession of the premises to Landlord and remove
all Tenant's property therefrom; and Landlord may forewith re-enter the
premises and repossess himself hereof, and remove all property therefrom,
using such force as may be necessary without being guilty of trespass,
forcible entry to detainer or other tort, or the violation or any of the
terms of this lease.
Paragraph 4 Reletting by Landlord
Landlord as Tenant's agent, without termination of this lease, upon
Tenant's breaching any of the terms of this contract, may at the
Landlord's option, enter upon and rent said premises at the best price
obtainable by reasonable effort without advertisement or private
negotiations and for any term Landlord deems proper. Tenant shall be
liable to Landlord for the deficiency, if any, between Tenant's rent
hereunder and the price obtained by Landlord on re-letting.
Paragraph 5 Collection by an attorney
If any rent owing under this lease is collected by or through an attorney
at law, Tenant agrees to pay ten (10%) percent thereof as attorney's fees.
Tenant waives all right to homestead and exemptions which he or any member
of his family or other person may have under any law as against any
obligations arising under this lease, and Tenant hereby assigns to
Landlord his homestead and exemption.
Paragraph 6 Subletting by Tenant
Tenant may sublease portions of the leased premises to others provided
that such operation is in part of the general operation of the Tenant and
under the supervision and control of the Tenant, and provided that such
operation is within the purposes for which said premises shall be used.
Except as provided in the preceding sentence, Tenant shall not, without
the written consent of the Landlord, assign the lease or any interest
hereunder, or sublet premises or any part thereof, or permit the use of
premises by any party other than the Tenant, any assignee of the Tenant,
at option of Landlord, shall become directly liable to Landlord for all
obligations of Tenant hereunder, but no sublease or assignment by Tenant
shall relieve Tenant of any liability hereunder.
Paragraph 6 Signs
Tenant shall paint no signs on the outside walls or place any signs on the
roof of the leased premises except with the written consent of Landlord.
Any and all signs placed on or within the leased premises by the Tenant
shall be maintained in compliance with the rules and regulations governing
such signs and the Tenant shall be responsible to Landlord for any damage
caused by installation, use or maintenance of said signs, and Tenant
agrees, upon removal of said signs, to repair damage incident to such
removal.
Paragraph 7 Control & responsibility
Landlord gives Tenant exclusive control of the premises, and shall be
under no obligation to inspect said premises. Tenant shall at once report
in writing to landlord any defective condition known to him which Landlord
is required to repair, and failure to so report such defect shall make the
Tenant responsibility to the Landlord for any liability incurred by
Landlord by reason of such defect. If such defect shall result in a leak
or other condition needing attention in the roof, Landlord upon receipt of
written notice from Tenant shall with reasonable promptness have made the
necessary repairs. Should Landlord fail to make such repairs with
reasonable promptness, Tenant is authorized to have the necessary repairs
made and deduct the costs from the next rental payment due hereunder.
Landlord shall not be liable, under any circumstances, for damage by
water, or otherwise, by reason of the failure of the building to protect
persons property, nor shall Landlord be liable for damages by reason of
flood water I the basement, or otherwise.
Paragraph 8 Delivery at expiration
Tenant will deliver said premises at the expiration of this lease in as
good order and repair as when first received, natural wear and tear and
fire and other casualty loss excepted. Tenant shall have the right, within
the term of the lease, if not in default thereunder, to remove all
furniture or trade fixtures that have been installed by Tenant, but Tenant
will repair, at or before the end of the term, all injury done by the
installation or removal of furniture and property.
Paragraph 9 Changes in premises
Tenant is to make no change of any substantial or permanent nature in the
above named premises, including painting of outside walls without first
obtaining written consent from said Landlord.
Paragraph 10 Improvements by Tenant
Any improvements, repairs, betterment's or additions placed on the
premises by the Tenant, shall not be a charge against the Landlord or the
property.
Paragraph 11 Ordinances
Tenant agrees to comply with all rules, orders, ordinances and regulations
of the City, County and State in which the property is located, in any and
all of their departments.
Paragraph 12 Carding
Landlord has the privilege of carding the premises for rent or for sale at
any time within ninety (90) days previous to the expiration of this lease,
and may at any time exhibit said premises during reasonable hours with
notification in writing to Tenant.
Paragraph 13 Use of Premises
Premises shall be used as general warehouse. No wines, beer, whiskeys,
liquors or intoxicating beverages of any kind shall be kept on, sold or
delivered on said premises.
Paragraph 14 Hold over
This lease, under no circumstances, shall extend beyond the timer herein
provided; and in the event that Tenant remains in the property after the
expiration date of the term herein, with or without payment of rent, this
shall not automatically extend the lease but he shall be as a tenant at
will, and subject to the terms and conditions of the original lease.
Paragraph 15 Light & easement
Nothing herein contained shall be construed to confer upon Tenant easement
to light or air.
Paragraph 16 Right of use only
This contract shall create the relationship of Landlord and Tenant between
the parties hereto. No estate shall pass out of Landlord. Tenant has only
a usufruct, not subject to levy and sale, and not assignable by Tenant
except by Landlord's consent.
Paragraph 17
All rights, powers and privileges conferred hereunder upon parties hereto
shall be cumulative but not restrictive to those given by law.
Paragraph 18 Non waiver of rights
No failure of Landlord to exercise any power given landlord hereunder, or
to insist upon strict compliance by Tenant with his obligations hereunder,
and no custom or practice of the parties at variance with the terms hereof
shall construe a waiver of Landlord's right to demand exact compliance
with terms hereof.
Paragraph 19
Time is of the essence of this agreement.
Paragraph 20 Definition of Parties
"Landlord" as used in this lease, shall also include his heirs,
representatives, assigns and successors in title to premises. "Tenant"
includes also representatives, and if this lease shall be validly assigned
or said premises sub-let, shall include also Tenant's assignees or
sub-tenants as to premises covered by such assignment or sub-lease.
"Agent" shall include its successors, assigns and representatives.
"Landlord" and "Tenant" include male and female, singular and plural,
corporation, partnership or individual, as may fit particular parties.
Paragraph 21 Notices
The depositing in the United States Post Office, directed to Tenant at
Tenant's address shown above of any notice required or permitted under
this lease to be given by Landlord to Tenant, shall be conclusive of
delivery thereof to Tenant.
SPECIAL STIPULATIONS
Insofar as the following stipulations conflict with any of the foregoing
provisions, the following shall control.
A. Insurance. Landlord shall, at its cost and expense, cause the following
insurance coverage to be provided and kept in force without lapse at any time
and for any reason during the term of this Lease:
(i) Insurance covering the premises against loss or damage by fire and
lightning and such risks as are included in "Special Form" or All
Risk coverage endorsements to policies covering property similar to
the premises in an amount equal to 100% of the full replacement
value thereof (excluding foundations and excavation costs), which
names Tenant as an additional insured and which includes an
endorsement waiving the right of subrogation. Notwithstanding
anything contained in this lease to the contrary, regardless of
whether or not Landlord causes the required insurance covering
losses for such causes to be provided and kept in force and
regardless of whether or not Tenant, its agents, employees,
contractors or others under the control of Tenant cause such
damages, Landlord shall be responsible for repairing all damages to
the premises caused by fire and lightning and such risks as are
customarily included in "Special Form" or All Risk coverage
endorsements to policies covering property similar to the premises.
(ii) Commercial General Liability coverage on an "Occurrence Form" basis
with limits of at least $1,000,000 Each Occurrence, and $2,000,000
General Aggregate for all claims arising out of Bodily Injury,
Personal Injury, and Property Damage Liability, including
Contractual Liability.
(iii) Business Auto Liability coverage for all vehicles owned by Landlord,
including Non-Owned and Hired Autos, with limits of at least
$1,000,000 Each Occurrence for Bodily Injury and Property Damage
Liability.
(iv) Workers Compensation coverage covering all employees, contractors
and subcontractors of Landlord, as applicable, working in the State
of Georgia under the statutory provisions of the Georgia Workers
Compensation Act.
Landlord and Tenant expressly agree that either Landlord's failure to provide
Tenant a certificate of insurance as temporary evidence of the insurance
coverage required by this lease within ten (10) days from the effective date of
this lease, or Landlord's failure to provide Tenant a final policy or policies
of insurance evidencing the insurance coverage required by this lease within
sixty (60) days from the effective date of this lease, shall render Landlord in
default
under the lease and shall entitle Tenant to exercise any applicable remedies
upon default provided in the lease or allowed by law. The policies required
under this section shall not be canceled without thirty (30) days' prior written
notice to Tenant.
B. Damage or Destruction. Should said premises, or the building of which
same are a part, be damaged by fire or any act of Providence, the Landlord shall
cause the damaged part to be restored as soon as reasonably practicable and hold
the lease in full force and effect. From the date of such damage until the
damage is restored, the rental shall xxxxx to the proportionate extent that the
damaged part bears to the whole premises. Should the damage be so great as to
amount substantially to total destruction, then either Landlord or Tenant shall
have the right to terminate the lease, provided that either party shall within
twenty (20) days after such damage notify the other party in writing of the
election to terminate this lease.
C. Environmental Compliance. To the best of Landlord's knowledge and
belief, there are no existing violations of any federal, state and local
environmental laws and regulations and any amendments thereto including, but not
limited to, the Comprehensive Environmental Response Compensation and Liability
Act of 1980, the Superfund Amendments and Reauthorization Act of 1986, and the
Resource Conservation Recovery Act of 1976. Landlord shall indemnify and hold
Tenant harmless from and against any and all damages, penalties, fines, claims,
liens, suits, liabilities, costs (including cleaning-up costs), judgments and
expenses (including, but not limited to, attorneys', consultants' and experts'
fees and expenses) of any kind and nature suffered by or asserted against Tenant
as a direct or indirect result of any preexisting condition prior to the
occupancy of said premises by Tenant or as a direct or indirect result of any
condition or violation taking place after the termination of the lease term or
Tenant's occupancy of the property. The foregoing indemnification shall survive
the expiration or termination of the lease term.
D. Increased Insurance Rates. Notwithstanding anything contained herein to
the contrary, Tenant shall not be liable for any increase in insurance rates on
the leased premises due to Tenant's initial occupancy thereof for the uses
specified herein. Additionally, Landlord acknowledges and agrees that the
proposed use does not require the physical presence of employees of Tenant at
the leased premises during normal working hours, since Tenant's use as a
warehouse facility will require the physical presence of Tenant's employees only
during times of deliveries to or from the facility. Landlord represents and
warrants that the demised premises are designed for and adequate for the use by
Tenant as a warehouse for materials used in the production of carpet.
E. Taxes. Tenant shall not be responsible for the payment of ad valorem
property taxes assessed against the premises.
F. Consents. Each party agrees that to the extent any acquiescence,
consent or agreement herein is permitted or required, such acquiescence, consent
or agreement should not be unreasonably withheld, delayed or denied.
G. Quiet Enjoyment/Authority. Landlord covenants and warrants to Tenant
that Landlord has full right and lawful authority to enter into and perform
Landlord's obligations under this lease, that Landlord has a leasehold interest
in the property pursuant to the Prior Lease, free and clear of all other
contracts, leases, tenancy agreements, restrictions, violations, encumbrances or
defects in title of any nature whatsoever that would restrict the use or
enjoyment of Tenant of the premises.
H. Brokerage Commission. Tenant shall have no responsibility for any
commission payable to any broker in connection with the execution of this lease.
I. Mutual Indemnification. Tenant hereby indemnifies Landlord for any
bodily injury or property damage of any third parties by reason of Tenant's
negligence, and the negligence of its employees, agents, servants or
contractors, in its use or occupancy of the leased premises. Landlord hereby
indemnifies Tenant for any bodily injury or property damage of any third parties
by reason of Landlord's negligence and the negligence of its employees, agents,
servants or contractors, in its maintenance, use or occupancy of the leased
premises.
J. Sprinkler system. As a precondition to the effectiveness of this lease
Landlord agrees to keep the sprinkler system in working order as required by
Tenants insurance carrier, and to not turn of the water supply to the sprinkler
system other than for routine maintenance.
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
to Lease as of the day and year first above written.
LANDLORD:
INTERMARK USA, INC.
Signed, sealed and delivered
in the presence of:
BY: /s/ [ILLEGIBLE]
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Witness
/s/ Xxxx Xxxx Xxxxx ATTEST: /s/ [ILLEGIBLE]
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Notary
NOTARY PUBLIC
[SEAL] XXXX XXXX XXXXX
XXXXXXXXX COUNTY, GEORGIA
MY COMMISSION EXPIRES FEB. 18, 2000
TENANT:
IMAGE INDUSTRIES, INC.
Signed, sealed and delivered
in the presence of:
BY: /s/ Xxxxxxx X. Xxxxxx - Treasurer
----------------------------------- ---------------------------------
Witness
/s/ Xxxxx Xxxxx ATTEST: /s/ [ILLEGIBLE]
----------------------------------- -----------------------------
Notary Public
My commission expires 01-26-99
