EXHIBIT 10.4.1
LEASE AGREEMENT
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
1. PARTIES:
THIS LEASE, made and entered into this the 1st day of September, 1993 by
and between Atlantic Design Company, Inc., hereinafter called "TENANT" and
Xxxxxxx and Xxxxxxx, hereinafter called "LANDLORD."
2. DEMISED PREMISES:
The LANDLORD, in consideration of the covenants, conditions,
agreements and stipulations of the TENANT hereinafter expressed, does hereby
demise and lease the following premises situated in the City of Charlotte and
State of North Carolina, described as follows:
5601-1 60,000 Sq. Ft. 5,000 S.F. now occupied
5601-2 10,720 Sq. Ft. now occupied
5061-3 41,600 Sq. Ft. now occupied
5061-4 10,000 Sq. Ft. now occupied
All areas approximate, all located at 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx, EXCEPT that rent herein provided must be paid for full occupancy
including 5601-1, beginning April 1, 1994, otherwise lease for 5601-1 is
terminated at that time, without further obligation of either party for the
5601-1 premises.
Atlantic Design will have the option to cancel this lease without any penalties
as noted in paragraph #24 if the TENANT in 5601-1 detracts from Atlantic
Design's business.
3. TERM AND USE:
To have and hold the same for a term of three years (3) years to
commence on September 1, 1993.
TENANT covenants to occupy and use the demised premises during the
term of this lease and any renewals thereof as an office and warehouse and for
such purpose and in such manner as shall not violate the zoning ordinances and
other regulations of the Federal, State, County, and Municipal authorities now
in force or hereafter adopted which in any manner affect the use of the demised
premises or any appurtenances thereto.
4. RENTAL AND OPTION TO RENEW:
The LANDLORD hereby reserves and the TENANT hereby agrees to pay the
LANDLORD upon the commencement of the three (3) year term referred to
hereinbefore an annual rental of One Hundred thirty thousand two hundred forty-
eight ($130,248.00) dollars
said payments to be made in twelve equal monthly installments of $10,854.00
each, between the first and fifth days of each month during the lease term.
ADDITIONAL RENT:
5601-1 Xxxxxxxxx Bv. as herein above described, consists of approximately
60,000 square feet and is expected to be occupied by 15,000 square feet
increments which at such time additional rent will be due in advance and
prorated to date of occupancy at the rate of thirty one thousand three
hundred fifty dollars ($31,350) annually for each increment, two thousand
six hundred twelve dollars and fifty cents ($2,612.50) per month.
TENANT shall have the option until April 1, 1994 to occupy additional space
in 5601-1 in 15,000 sq. ft. increments, up to a maximum of 60,000 sq. ft. at the
rate of thirty-one thousand, three hundred fifty dollars ($31,350.00) annually
for each increment, or two thousand, six hundred twelve dollars and fifty cents
($2,612.50) per month. Said option may be exercised by TENANT providing written
notice to LANDLORD no less than twenty (20) days prior to the month in which
such occupancy is to begin. In the event that this option to let is not
exercised in whole or in part prior to April 1, 1994, this Lease Agreement shall
terminate as to 5601-1 only as of said date.
OPTION TO RENEW:
LANDLORD hereby gives TENANT an option to renew, except as provided for in
Section 4(b) above, for a period of three (3) years at the rental rate set forth
herein increased by the percentage change in the Consumer Price Index
spreadsheet of the U.S. Government, from the date hereof to the date of the
renewal lease agreement, for the narrowest reported area in which the city of
Charlotte, state of North Carolina, is located. All other conditions to remain
the same. TENANT shall notify LANDLORD in writing of his intent to exercise
such option six (6) months prior to expiration of this Lease.
5. RENTAL PAYMENTS:
All rental payments provided herein shall be made to LANDLORD at its
office, Southern Real Estate 0000 XxxxxxxXxxx Xxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000, until notice to the contrary is given by LANDLORD.
6. UTILITIES:
During the term of the lease, TENANT shall provide and pay for all
lights, heat, water, storm water fees and other utilities upon the demised
premises.
7. OWNERSHIP, POSSESSION AND WARRANTY:
The LANDLORD covenants that it is lawfully seized of the demised
premises and of the parking areas, driveways and footways and has good right and
lawful authority to enter into this lease for the full term aforesaid, that
LANDLORD will put the TENANT in actual possession of the demised premises at the
beginning of the term aforesaid, and that TENANT, on paying the said rent and
performing the covenants herein agreed by it to be
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performed, shall and may peaceably and quietly have, hold and enjoy the demised
premises and use the appurtenances thereto as hereinabove referred to for the
said term.
8. FIXTURES AND PERSONAL PROPERTY:
Any trade fixtures, equipment and other property installed in or
attached to the demised premises by and at the expense of the TENANT and all
light fixtures provided by TENANT and installed by LANDLORD and all other items
whether trade fixtures or otherwise, installed by the TENANT, shall remain as
the property of the TENANT and the LANDLORD agrees that the TENANT shall have
the right at any time and from time to time, provided it be not in default
hereunder, to remove any and all of its trade fixtures, equipment and other
property which it may have stored or installed on the demised premises
substantially to the same condition in which they were at the time the TENANT
took possession.
9. INTERNAL MAINTENANCE AND TENANT'S COVENANT TO SURRENDER PREMISES IN
GOOD CONDITION:
Tenant covenants that it will at its own expense keep and maintain in
good order and repair the interior of the improvements to be constructed upon
the demised premises excluding principal structural portions, but including
without limitation all window glass, plumbing, wiring, electrical systems,
heating and air conditioning system, overhead doors, locks, exterior locks,
loading doors and entrance doors. Tenant further covenants that it will not
make structural change or alteration without the written consent of the
LANDLORD, that it will not in any manner deface or injure said premises or any
part thereof; and that it will return said premises peaceably and promptly to
the LANDLORD at the end of the term of this lease, or at any previous
termination thereof, in as good condition as the same are at the beginning of
the term, loss by fire or other hazard and by ordinary wear and tear expected.
10. EXTERNAL MAINTENANCE:
LANDLORD covenants that it will at its own expense keep and maintain
the exterior and principal interior structural portions of the improvements to
be constructed upon the demised premises and the parking areas, driveways, and
footways in good order and repair during said term; provided, however, that
LANDLORD shall not be responsible for or required to make any repairs which may
have been occasioned or necessitated by the negligence or willfulness of TENANT,
its agents or employees. It shall be the TENANT's responsibility to keep the
area immediately in front of and adjacent to the demised premises free and clear
of trash and debris.
11. TAXES AND INSURANCE
The LANDLORD shall pay all real estate taxes on the demised premises,
parking areas and driveways. LANDLORD will maintain and pay for adequate fire
insurance, with extended coverage, on the demised premises. If during the term
of this lease the demised premises are used by the TENANT for any purpose or in
any manner that causes the improvements to be rated by fire insurance companies
as extra hazardous, TENANT will pay the additional insurance premium caused by
such use.
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TENANT covenants and agrees to save LANDLORD harmless from any
liability, whatsoever, arising out of TENANTS negligent use of the demised
premises, parking areas, driveways and footways and shall provide and pay for
adequate comprehensive general liability coverage for that purpose.
TENANT shall provide for all hazard insurance on its own contents in
the demised premises.
TENANT shall pay all personal property taxes.
LANDLORD and TENANT mutually agree that in respect to any loss which
is covered by insurance then being carried by them respectively, the one
carrying such insurance and suffering said loss, releases the other of and from
any and all claims with respect to such loss, to the extent reimbursable by such
insurance.
12. TAX CLAUSE:
The TENANT agrees to pay any and all ad valorem taxes assessed or
levied against or upon the premises which are in excess of the amount of such
taxes imposed upon the premises for the year 1993, provided that the premises
are fully improved and assessed for the entire year of 1993, whether the
increase results from a higher tax rate or an increase in the assessed valuation
of the premises or both. Such increase shall be deemed additional rent and
shall be paid by the TENANT within (30) days after the LANDLORD exhibits to the
TENANT the tax xxxx evidencing such increase.
It is understood and agreed that TENANT shall have the right, in its
name or the name of LANDLORD, to protest or review by legal proceedings or in
such other manner as it may deem suitable any tax or assessment with respect to
the demised premises, provided any such protest or review shall be at the sole
cost and expense of TENANT. LANDLORD will on request, furnish TENANT with the
tax receipts, bills, or other data which TENANT may deem necessary or proper for
the purpose of such protest or review and such authorization or authorizations
as may be necessary therefore.
13. RIGHTS OF PAYMENT UPON DEFAULT:
The LANDLORD agrees that if it shall at any time fail to pay any taxes
and to provide and pay for any insurance required of it under the terms of this
lease, then TENANT may at its option without liability for forfeiture pay such
taxes or provide and pay for such insurance and deduct the actual cost thereof
from the rent next thereafter falling due hereunder.
LANDLORD further agrees that TENANT shall also have the right at its
option without liability of forfeiture to pay when due or within the grace
period permitted any installment of mortgage indebtedness upon the demised
premises when the payment thereof shall be necessary to preserve TENANT's
leasehold interest hereunder and deduct the payment thereof from the rent
thereafter falling due hereunder.
TENANT agrees to pay as rent in addition to the rental herein reserved
any and all sums which may become due for reason of the failure of Tenant to
comply with all of the covenants of this lease and any and all damages, costs
and expenses which the LANDLORD may suffer or incur by reason of any default of
the TENANT, or failure on its part to comply with the covenants of this lease
and each of them, and also any and all damages to the demised
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premises caused by any act or neglect of the TENANT. Upon notification from any
first Mortgagee on the aforementioned described property, the TENANT hereby
agrees to give said Mortgagee 30 days notice in writing of any defaults under
this lease in order that said Mortgagee may have the right to cure said defaults
at their sole option.
14. TENANT'S DEFAULT:
If the TENANT shall make default in any covenant or agreement to be
performed by it and if after written notice from LANDLORD to TENANT such default
shall continue for a period of ten (10) days or if the leasehold interest of the
TENANT shall be taken on execution or other process of law or if the TENANT
shall petition to be or be declared bankrupt or insolvent according to law, or
make any conveyance or general assignment for the benefit of creditors, or if a
receiver be appointed for such TENANT's property and such appointment be not
vacated and set aside within thirty (30) days from the date of such appointment,
or proceedings for reorganization or for composition with creditors be
instituted by or against such TENANT, then, and in any of said cases, the
LANDLORD may immediately or at any time thereafter and without further notice or
demand enter into and upon said premises or any part thereof and take absolute
possession of the same fully and absolutely without such re-entry working a
forfeiture of the rents to be paid and the covenant to be performed by the
TENANT for the full term of this lease and may at the LANDLORD's election lease
or sublet such premises or any part thereof on such terms and conditions and for
such rents and for such time as the LANDLORD may elect and after crediting the
rent actually collected by the LANDLORD from such reletting on rentals
stipulated to be paid under this lease by the TENANT, collect from the TENANT
any balance remaining due on the rent served under this lease.
15. ASSIGNING AND SUBLETTING:
The TENANT may not assign this lease or sublet the whole or any part of the
demised premises without the written consent of the LANDLORD, it being
understood and agreed that such consent will not be unreasonably withheld;
provided, however, that TENANT may sublease or assign this lease agreement to a
parent, subsidiary or affiliated corporation, and in such event, subsection (a)
- (d) of this section shall apply. In the event the LANDLORD at any time in
writing consents to the requirements of this lease or to the subletting of the
whole or any part of the demised premises, such assignment or sublease shall be
in writing and shall be subject to the following conditions:
(a) That neither such assignment nor sublease nor the acceptance of rent
by the LANDLORD from such assignee tenant shall relieve, release or in any
manner affect the liability of that TENANT hereunder;
(b) That the said assignee or subtenant by an instrument in writing in
recordable form shall assume and agree to observe and perform all of the
agreements, conditions, covenants and terms of this lease on the part of the
TENANT to be observed and performed, and shall be, and become jointly and
severally liable with the TENANT for the nonperformance of:
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(c) That a duplicate-original of such instrument of assignment or sublease
and assumption shall be delivered to LANDLORD as soon as such assignment or
sublease shall be made, except upon compliance with and subject to the
provisions of paragraph.
(d) That no further or additional assignment of the lease or sublease
shall be made, except upon compliance with subject to the provisions of this
paragraph.
16. SIGNS:
The TENANT shall have the right to erect reasonable and normal signs
relating to its business activities provided consent to the erection of any such
signs shall first be obtained from LANDLORD, which consent shall not be
unreasonably withheld. The care and maintenance of such signs shall be the
responsibility of the TENANT and shall remain the property of the TENANT.
The LANDLORD or his designated agent shall have the privilege of installing
a "For Lease" and/or "For Sale" sign on the leased premises during the last 90
days of the lease term or any extension thereof and shall have the privilege of
showing the leased premises to prospective TENANTS or purchasers during such 90
day period.
17. DESTRUCTION BY FIRE:
The parties hereto mutually agree that if the improvements upon the demised
premises be damaged by fire or misuse insured against by LANDLORD, TENANT shall
meanwhile be entitled to an abatement of rent to the extent of the loss suffered
by it, LANDLORD will repair the said damages as promptly as practicable, under
the supervision of TENANT's engineering department. In the event of the
destruction (meaning by "destruction" damage to the extent of seventy-five (75%)
percent of its value) of the said building by fire or other cause insured
against, either party may, at its option, cancel and terminate this lease by
giving to the other written notice thereof at any time within thirty (30) days
after the date of such destruction.
18. CONDEMNATION:
If the whole or a substantial portion of the demised premises is taken by
any governmental agency or corporation with the right of exercise of eminent
domain, whether such taking be effected by Court action or by settlement with
the exercising or threatening to exercise such power and if the property so
taken renders the remainder of said property unfit for thereof by TENANT, then
the TENANT shall have the option to terminate, or if the taking does not
interfere with TENANT's use of the premises to the extent TENANT does not have
an option to terminate, there shall be a permanent reduction of the annual rent
according to the nature and extent of the taking.
19. NOTICES:
Whenever in this lease it shall be required or permitted that notice or
demand be given or served by either party to this lease to the other, such
notice or demand shall be given or
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served and shall not be deemed to have been given or served unless in writing
and forwarded by mail addressed as follows:
To the LANDLORD at its office, Southern Real Estate 0000 XxxxxxxXxxx Xxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
To the TENANT at Atlantic Design Company, Inc. 0000 Xxxxxxxxx Xx.
Xxxxxxxxx, XX 00000
Addresses may be changed from time to time by either party by serving notice as
above provided with a copy to Xxxxx Services; 0 Xxxxxxxxxxxx Xxxxx; Xxx Xxxx,
Xxx Xxxx, 00000; attention: General Council.
20. AGREEMENT BETWEEN LANDLORD AND TENANT:
It is expressly understood and agreed by and between the parties hereto
that this lease sets forth all the promises, terms, conditions and
understandings between LANDLORD and TENANT relative to the demised premises, and
that there are no promises, agreements conditions or understandings, either oral
or written, between them other than are herein set forth. It is understood and
agreed that, except as herein otherwise provided, no subsequent alteration,
amendment, change or addition to shall be binding upon LANDLORD or TENANT unless
reduces to writing and signed by them.
21. OBLIGATIONS OF SUCCESSORS:
The LANDLORD and the TENANT agree that all the provisions hereof are to be
construed as covenants and agreements as though the words imparting such
covenants and agreements were used in each separate paragraph hereof and that
all provisions hereof shall bind and inure to the benefit of the parties hereto,
their respective heirs, legal representatives, successors, assigns.
22. SUBORDINATION OF LEASE:
This lease, its terms and conditions, and all leasehold interest and rights
hereunder, are expressly made, given and granted subject and subordinate to the
lien of any bona fide mortgage or deed of trust now or hereafter imposed upon
all or any of the demised premises, and TENANT agrees to execute and deliver to
the LANDLORD, its successors or assigns, or to any other person or corporation
designated by the LANDLORD, any instrument or instruments requested by the
LANDLORD consenting to any such subordination, all rights of TENANT hereunder
shall be fully preserved and protected as long as TENANT complies with all the
covenants or conditions herein assumed by it.
23. ENVIRONMENTAL RESTRICTIONS:
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TENANT shall not dispose of waste of any kind, whether hazardous or not,
and TENANT shall not conduct any activity which may or does require hazardous
materials treatment, storage or disposal permit from any governmental agency.
24. SPECIAL CONDITIONS:
TENANT has right to terminate this agreed by three (3) months advance
notification in writing to LANDLORD plus payment of additional rent equal to
three (3) times the amount due for the first month prior to the notice date.
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IN TESTIMONY WHEREOF, the LANDLORD and TENANT have caused these presents to
be executed and delivered as of the day and year stated in Article 1.
ATTEST XXXXXXX AND XXXXXXX
/s/Xxxx X. Xxxxx /s/ X.X. Xxxxxxx
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Partner
ATTEST ATLANTIC DESIGN COMPANY, INC.
/s/ Xxxxx X. Xxxxxxxxx 12/21/93
__________________________________ --------------------------------------
Executive Vice President
STATE OF SOUTH CAROLINA
COUNTY OF GREENVILLE
I, Xxxxxxx X. Xxxx, a Notary Public in and for said county and state of
hereby certify that X.X. Xxxxxxx personally came before me and acknowledged the
due execution of the foregoing instrument.
WITNESS my hand and notarial seal this 30th day of December, 1993.
/s/ Xxxxxxx X. Xxxx
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Notary Public
My Commission expires: May 31, 1999
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
I, Xxxxx Xxxxxx, a Notary Public in and for said county and state of hereby
certify that Xxxxx X. Xxxxxxxxx personally came before me and acknowledged the
due execution of the foregoing instrument.
WITNESS my hand and notarial seal this 22 day of December, 1993.
/s/ Xxxxx Xxxxxx
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Notary Public
My Commission expires: My Commission Expires February 22, 1998
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