EXHIBIT 10.1
CONTRACT OF LEASE AND RENT
GEORGIA, XXXX COUNTY
THIS CONTRACT of Lease and Rent, sometimes referred to
as "Agreement" and sometimes referred to as "Lease", made and
entered into as of the 30th day of December, 1993, by and
between WAYCROSS AND XXXX COUNTY DEVELOPMENT AUTHORITY,
hereinafter sometimes called "Authority," a public Georgia
Corporation, as Lessor, and General Manufactured Housing, Inc., a
Georgia Corporation with offices in Xxxx County, Georgia, for the
purposes of this agreement hereinafter sometimes called "Company,"
and sometimes called Lessee,
W I T N E S S E T H :
WHEREAS, the Authority, an instrumentality of the State
of Georgia, and a public corporation, created under an Amendment
to the Constitution of the State of Georgia and an Act of the
Georgia General Assembly (Georgia Laws 1953, November-December
Session, Page 266, et seq.; Georgia Laws 1955, Page 2840, et seq.)
to develop and promote for the public good and welfare, jobs
and payrolls in industry, agriculture, commerce, natural
resources, vocational training and the making of long-range plans
for the coordination of such development, promotion and expansion
within the area of the City of Waycross and Xxxx County, Georgia,
having full lawful power and authority to enter into this Contract
of Lease and Rent, has proposed and does hereby propose that it
shall:
(a) Borrow the sum of $613,727.63 from The Xxxxxxxxx
Bank (Lending Institution), and grant to Lending Institution a
Deed to Secure Debt for real property located in the County of
Xxxx, State of Georgia, and described in Exhibit "A" hereto,
together with all easements, tenements, hereditaments,
appurtenances, rights, privileges and immunities thereto belonging
or appertaining (hereinafter sometimes called "the Lease
Premises"), to the Company for rentals and upon the terms and
conditions herein set forth; and
WHEREAS, the Company desires to accept the proposals of
the Authority and enter into this Agreement; and
WHEREAS, the Authority intends to give a note ("Note")
and Deed to Secure Debt ("Deed to Secure Debt") to Lending
Institution for the loan to improve the Leased Premises and
personal property fixtures; and
WHEREAS, on December 21, 1993 at 5:00 o'clock p.m. the
Authority, after public notice, duly published in the official
organ of Xxxx County, Georgia, held a public hearing to discuss
and consider the proposed project; and
WHEREAS, on December 21, 1993 the Commission, in a
regular public meeting, considered said project and adopted a
resolution approving the terms as set forth herein and as set
forth in the Installment Promissory Note and Deed to Secure Debt
between the Authority and the Lending Institution, executed
contemporaneously herewith.
NOW THEREFORE, in consideration of the premises and the
mutual covenants and agreements herein set forth and the mutual
benefits to flow to each of the parties hereto, the Authority and
the Company do hereby covenant and agree as follows:
ARTICLE I
Grant of Lease and Term
1.01 Authority hereby leases to Lessee, and Lessee hereby
takes and hires from Authority, the leased premises described on
Exhibit "A" and the leased equipment described on the attached
Exhibit "B" attached hereto, for a term, beginning the date hereof
and ending December 30, 2008, unless terminated prior thereto or
renewed, all as hereinafter permitted and provided.
ARTICLE II
Indebtedness Against Leased Premises
2.01 It is contemplated that, contemporaneously with the
closing hereof, The Xxxxxxxxx Bank, hereinafter referred to as
"Lending Institution", shall lend to the Authority the sum of
$613,727.63 to be secured by a Deed to Secure Debt upon the leased
premises. The loan made contemporaneously herewith shall be
payable $6,600.00 monthly commencing January 15, 1994 and in the
same amount on the 1st day of each month thereafter until a total
of 180 such payments have been made. Reference is hereby made to
the Adjustable Rate Installment Promissory Note (Note) and it is
incorporated herein by reference. The monthly installment may
adjust as set forth in said Note.
ARTICLE III
Rent
3.01 The Lessee shall pay monthly rental, in advance, in the
sum of $6,600.00 on the 15 day of each month commencing
January 15, 1994 for 180 months. Then the monthly rental shall be
adjusted in the same amount, manner, and at the same time as the
adjustments to the monthly installment from the Authority to the
Lending Institution as set forth in 2.01, above. In other words
the monthly rental for each month during the term hereof shall be
equal to the monthly installment paid from the Authority to the
Lending Institution.
3.02 The Lessee shall pay as additional rent all water, sewer
and utility charges that are imposed upon the project, however,
Lessee shall have the right in its own or in the Authority's name,
or both, to contest the validity of the amount of such water,
sewer or utility charge by appropriate proceedings timely
instituted; provided further, however, that the Lessee give the
Authority written notice of its intention to contest such charges,
and provided that the Lessee agrees to hold the Authority harmless
from any costs and expenses the Authority may incur by reason of
such contest and provided that the Lessee shall pay promptly any
valid final judgment enforcing any such charge.
3.03 As additional rent, the Lessee, in addition to all other
payments provided for herein, shall pay to the Authority, in
addition to the sum required in the previous lease and in lieu of
ad valorem taxes, sums as are provided for under Section 4.03.
ARTICLE IV
Taxes and Assessments
4.01 The Lessee covenants that it will pay all taxes or
assessments in connection with the leased premises, if any, which
my be levied or assessed upon the Authority or upon the Lessee or
upon the property under this Lease when the same shall become due,
provided, however, that the Lessee shall not be required to pay
nay such taxes or assessments so long as the Lessee in good
faith contests the same.
4.02 The Lessee has entered into this Lease in contemplation
that under the laws of the State of Georgia, the leased premises
and all parts thereof which are owned by the Authority on January
first of each year and this Lease are not subject to ad valorem
taxes for that year. Authority covenants that it will not part
with fee simple title to the leased premises or any part thereof
(except with the Lessee's written consent) during the primary
terms hereunder and that it will not take any action that may
reasonably be construed as tending to cause or induce a levy or
assessment of the ad valorem taxes on the Project or any part
thereof or on this Lease, and should any such levy or assessment
be threatened or occur, the Authority shall, at the Lessee's
request, cooperate fully with the Lessee in all reasonable and
lawful ways to prevent or contest any such levy or assessment.
4.03 Except as set forth below in Paragraph 4.05, during such
time as the leased real property is not subject to ad valorem
taxes, and in addition to the sums required in the other terms of
this lease, for each year that the Lease is in effect, Lessee
agrees to pay to Authority a portion of the amount of taxes that
would have been assessed against the property for that year if the
property were subject to ad valorem taxes. For the 1994 tax year
Lessee shall pay to Authority 1/15 of the 1994 tax amount. For
the 1995 tax year Lessee shall pay to Authority 2/15 of the 1995
tax amount. For each year thereafter the amount to be paid by
Lessee pursuant to this subparagraph 4.03 shall be determined by
adding 1/15 to the fraction used for the previous year to
determine payments pursuant to this paragraph, multiplied by the
taxes that would have been assessed against the property for that
year if it were subject to ad valorem taxes; provided, however,
that the sums to be paid pursuant to this subparagraph 4.03 in any
year shall never exceed 100% of the tax amount for that year.
4.04 Except as set forth below in Paragraph 4.05, during such
time as the leased equipment is not subject to ad valorem taxes,
in addition to the sums required to be paid under the other terms
of this Lease, for each year that the Lease is in effect, Lessee
agrees to pay to Authority, a portion of the amount of taxes that
would have been assessed against the property if it were subject
to ad valorem taxes. For the 1994 tax year Lessee shall pay to
Authority 1/10 of the 1994 tax amount. For the 1995 tax year
Lessee shall pay to Authority 2/10 of the 1995 tax amount. For
each tax year thereafter, the sums to be paid by Lessee pursuant
to the terms of this subparagraph 4.04 shall be determined by
adding 1/10 to the fraction used for the previous year to
determine the payments pursuant to this paragraph, multiplied by
the taxes that would have been assessed against the property for
that year if it were subject to ad valorem taxes; provided,
however, that the sums to be paid pursuant to this subparagraph
4.04 in any year shall never exceed 100% of the tax amount for
that year.
4.05 A. For the years 1994, 1995 and 1996, Lessee shall
make payments in lieu of taxes as set forth in Paragraph 4.03 and
4.04 of this Article IV.
B. The parties are entering into this Lease and the
related transactions with the expectation that it will lead to job
growth and payroll growth above Lessee's 1993 employment and
payroll levels. Lessee's 1993 employment is 290 employees and its
1993 payroll is $6,600,000.00. Lessee represents that (1) it
expects to increase its 1993 employment by 75 employees, or from
290 to 365 and (2) further expects to increase its 1993 payroll by
$1,125,000.00 or from $6,600,000.00 to $7,725,000.00. For years
beginning in 1997 and throughout the remaining term of the lease,
the parties shall review the actual average payroll increase and
number of jobs increase and determine payments in lieu of taxes as
set forth below.
C. 1. To determine the payment in lieu of taxes for
1997 and subsequent years the parties shall use the following
procedure:
a. Determine the average number of employees
(as limited below) employed by Lessee during the years 1994, 1995
and 1996.
b. From that number subtract the number 290.
c. The resulting number shall be the
numerator of Fraction One and the denominator shall be the number
75.
2. a. In like manner determine the average
payroll of Lessee during the years 1994, 1995 and 1996 (as limited
below).
b. From that average subtract $6,600,000.00.
c. Such number shall be the numerator of
Fraction Two and the denominator shall be $1,125,000.00.
3. If both of said fractions are one (1) or
greater, then the payment in lieu of taxes for real property and
improvements for the year 1997 shall be 4/15 of the 1997 tax
amount as determined pursuant to Section 4.03 and not adjusted
pursuant to this paragraph. The payment in lieu of taxes for the
year 1997 for equipment and personal property shall be 4/10s of
the 1997 tax amount, as determined pursuant to Section 4.04 and
not adjusted pursuant to this paragraph.
4. If either fraction (i.e. lower fraction) is
less than "1" then the payment in lieu of taxes shall be adjusted
and determined in the following manner:
Step 1. From the applicable tax amount for
1997 (pursuant to Section 4.03 and 4.04) subtract the amounts of
payments in lieu of taxes for 1997 pursuant to Sections 4.03 and
4.04, unadjusted pursuant to this Section 4.05.
Step 2. Multiply the result from Step 1 by
the lower fraction. That amount shall be the tax savings for
1997.
For 1997, Lessee shall pay in lieu of taxes the
applicable taxes for 1997 less and except the tax savings for
1997 as determined pursuant to this Step.
D. To determine the payment in lieu of taxes for 1998
and all subsequent years, the parties shall use the same procedure
except that in Step C.1.a. (above) they shall determine the
average number of employees employed by Lessee for the 3 previous
years (e.g. for 1998, they shall average 1995, 1996, and 1997
employees), and in Step C.2.a. (above) they shall determine the
average payroll of Lessee for the 3 previous years (e.g. for 1998,
they shall average 1995, 1996,and 1997 payroll); further in
Step 1, the Parties shall use the tax amount for that tax year
pursuant to Section 4.03 and 4.04 (e.g. 1998 the applicable
fractions shall be 5/15 for real property and 5/10 for personal
property.
E. Payments in lieu of taxes shall be due and payable
on the same date that State and County taxes are due.
F. For a person to be considered an employee pursuant
to the terms of this Article IV, he must work not less than 1000
hours during the calendar year.
G. In determining payroll increases for the purposes
of this Article IV, no increases in income to "highly compensated
employees" shall be considered. The term "highly compensated
persons" shall have the same meaning as that term has in the
Internal Revenue Code.
H. The Parties understand and agree that Lessee's
payroll and employment records are confidential. Lessee shall
permit Authority's designated accountant to see only such
employment and payroll records as are necessary to make the
calculations and determinations pursuant to this Article. The
Parties agree to maintain the confidentiality of all such records
provided that the Parties can use the totals determined for the
purposes of this Article but for no other purposes.
ARTICLE V
Use of Premises
5.01 The Lessee agrees that in the use and occupancy of said
leased premises it will at all times comply with all applicable
sanitary and safety laws, rules and regulations and will commit no
nuisance and will permit no nuisance upon the premises by others.
5.02 The Lessee agrees that during the term of this Lease,
including any renewal periods thereof, if any, it will make all
necessary repairs and will keep and maintain leased premises,
including all building and improvements thereon and appurtenances
thereto belonging, in good repair at its own cost; and upon the
expiration or termination of this Lease or any renewal periods
thereof,it will surrender the Project and the improvements thereon
and appurtenances thereto belonging to the Authority in as good a
condition as prevailed at the time of the beginning of occupancy
by the Lessee, ordinary wear and tear and acts of God and
condemnation excepted.
ARTICLE VI
Insurance
6.01 Upon the execution of this Lease, and thereafter
throughout the term thereof, including the renewal period, if any,
the Lessee agrees to keep, or cause to be kept, the building and
other improvements of leased premises insured against loss or
damage by fire with Uniform Standard Extended Coverage Endorsement
covering perils of windstorm, hail, explosion, riots, civil
commotion, aircraft, vehicles and smoke (except as limited or
obtainable in the present Uniform Standard Extended Coverage
Endorsement), and such other casualties and events as may be
provided for under Uniform Coverage at all times in amounts
sufficient to prevent the Authority or the Lessee from becoming a
co-insurer, within the terms of applicable policies, and at least
to an amount equal to ninety percent (90%) of the full insurable
value thereof, and to pay all premiums thereon. All such
insurance policies shall be in companies which are authorized to
transact business and are in good standing in the State of
Georgia. The Authority retains the privilege of approving or
disapproving the policy or policies taken out by the Lessee under
this Article, however, Authority will not be unreasonable in the
exercise of this privilege. Each policy shall be so written or
endorsed to make losses, if any, payable to the Authority, the
lending institution, and the Lessee, as their respective interest
may appear; and each policy shall have standard mortgage clauses
attached thereto, payable to the lending institutions as their
interest may appear. The original of all insurance policies shall
be deposited with and retained by Lessor, or by Lending
Institution. The Lessee may insure such property under a blanket
insurance policy or policies which not only cover such property
but other properties also, in which event the coverage may conform
to the blanket policy or policies. Lessee may deposit with
Authority a certificate or certificates of insurance in lieu of
the original policy or policies but Authority shall have the right
to inspect said original policy or policies to determine the
extent of the coverage.
6.02 The Lessee agrees that it will carry public liability
insurance against liability for injuries or the death of persons
resulting from injuries occurring on or in any way relating to the
leased premises and for damages to property occurring on or in any
way related to the leased property in the minimum amount of
$100,000 for the death of or personal injury to any one person,
$300,000 for total personal injury and death claim resulting from
any one accident, and $50,000 for property damage.
6.03 Not less than fifteen (15) days prior to the expiration
date of the expiring policies, originals of the insurance policies
provided for in this Article, each bearing notations evidencing
payment of premiums or other evidence of such payment satisfactory
to the Lending Institution shall be delivered by the Lessee to the
Authority or to the Lending Institution. In case the Lessee
neglects to insure or keep insured the improvements, buildings or
structures, as herein provided, or shall neglect to procure or pay
for any policies of insurance or renewals thereof to be procured
and paid for by the Lessee under this Lease, the Authority or the
lending institution, may, but shall not be obligated to procure or
renew such insurance, and the amount so paid therefor by the
Authority or Lending Institution shall be recovered from the
Lessee at the next rent payment day after said payment.
ARTICLE VII
Alterations
7.01 The Lessee shall have the privilege of remodeling the
buildings or making improvements to the real property covered by
the Project from time to time, as in its discretion, it may
determine to be desirable for its uses and purposes, and upon the
obtaining of the written approval of the Authority. The cost of
such improvements and remodeling shall be paid for by the Lessee
and shall be the property of the Authority, subject to the terms
of this Lease; provided, however, the Lessee shall have the right
to remove from the leased premises at any time before the
expiration or termination of the Lease, and while it is in good
standing with reference to the payments of rent and performance of
other obligations hereunder, any machinery, fixtures, equipment,
appliances or other personalty placed in or upon the leased
premises by the Lessee, which have been placed therein at the sole
expense of the Lessee using funds other than those furnished by
Authority, whether attached to the realty or not, which can be
removed without material damage to the existing buildings or
structures, or in the event such removal causes damage to the
existing building or structures, restoration and repair of such
damage shall be made at the sole expense of the Lessee. Approval
by Authority to alterations by Lessee as provided for in this
Article will not be unreasonably withheld, and said approval shall
be granted providing said alterations do not impair the operating
unity or materially alter the character or diminish the value of
the leased premises. Authority agrees to execute a landlord's
waiver of lien or similar document as Lessee may reasonably
request as to any machinery, removable fixtures, equipment,
appliances or other removable personalty as Lessee may acquire,
whether by purchase or lease, and install on the leased premises,
to facilitate Lessee's financing of the purchase or leasing
thereof.
ARTICLE VIII
Damage or Destruction
8.01 If the buildings situated upon the leased premises
and/or the personal property leased shall be damaged or either
partially or totally destroyed by fire, flood, windstorm or other
casualty at any time during the primary term of this Lease, there
shall be no abatement or reduction in the rent payable by the
Lessee to the Authority, and the Lessee shall repair, store and/or
replace such damage or damages, at its own cost to the condition
existing immediately prior to such damage or destruction as nearly
as possible, but the total amount collected under any and all
policies of insurance covering such casualty shall be paid into a
special fund, and such total amount shall be paid to the Lessee at
the Lessee's election, either upon the completion of such repairs
of such damages and the restoration of the damaged or destroyed
buildings, structures and improvements and/or personal property,
or periodically as such repair and restoration progress. All
payments shall be made only upon a certification by the Treasurer
of the Authority and by the architect or engineer of the Authority
for such Project, which certification shall be given as the
restoration or repair work is in fact made by the Lessee. Such
restoration, repairs or replacement may be made in a manner so as
to make the facilities more useful. In the event the Lessee shall
fail to repair, restore, or replace and pay the cost of repairing,
restoring or replacing any damage or destruction of improvements
and/or personal property on the leased premises which may be
caused by any of the hazards above referred to, after the lapse of
reasonable time and after thirty days written notice given by the
Authority to the Lessee, and the failure of the Lessee to commence
repairs within said thirty-day period, the Authority may do so and
recover the reasonable cost thereof from the Lessee, less whatever
amount the Authority may collect under any policy or policies of
insurance covering such damage or losses.
8.02 Notwithstanding anything to the contrary that may be
hereinbefore provided in this section, in the event said building
or buildings cannot lawfully be repaired and restored or
reconstructed or in the event said building or buildings cannot
lawfully be replaced by a new building or buildings as
hereinbefore in this section required or permitted to be done, or
if for any other reason it shall not be economically feasible and
practicable to repair and restore or reconstruct said building or
buildings or to replace such building or buildings with such new
building or buildings so that same will be sufficient for the then
needs and use of the Lessee, then the Lessee shall not be required
and the Authority shall not be entitled to repair or restore or
reconstruct or replace said building or buildings as hereinbefore
in this section; provided, the Lessee shall have, and is hereby
granted, the option to purchase the leased premises. To exercise
such option, the Lessee shall within 30 days following the damage
or destruction give written notice to the Authority and shall
specify therein the date of closing of such purchase, which date
shall not be less than 15 days nor more than 45 days from the date
such notice is mailed. The purchase price, which shall be payable
by the Lessee in cash at closing, shall be a sum that, when added
to the amount the Authority may collect under any policy or
policies of insurance covering such damage or losses, will be
sufficient to repay and release or satisfy in full the then
remaining principal balance under said indebtedness secured by the
leased premises in the original principal amount of $613,727.63,
with all accrued interest thereon to the date of payment, plus (1)
any actual out-of-pocket expense in closing the sale by Authority,
plus (2) One Dollar. The Authority will execute and deliver to
Lessee, upon payment in cash of the purchase price, a Warranty
Deed to the property, and this Lease shall thereupon terminate.
ARTICLE IX
Indemnity Agreement.
9.01 In addition to the other terms and conditions herein
Lessee agrees to furnish to Lessor, in a form reasonably
acceptable to Lessor, an Agreement to indemnify Lessor and hold
Lessor harmless with respect to any deficiency that may result
from any default by Lessee during the term of this Lease.
ARTICLE X.
Condemnation
10.01 If the whole or any part of the leased premises shall be
taken or condemned by a competent authority for any public use or
purpose, then and in that event any award or compensation or
damages recovered on account of any such taking or condemnation,
less any expense, including counsel fees incurred in litigating,
arbitrating, compromising or settling any claim arising out of
such condemnation, shall be disposed of in the following manner:
(a) If such taking or condemnation shall invoke
the taking or condemnation in whole or in part of the structural
portion of the main building situated on such premises to such
extent that said building is thereby rendered unsuitable for usage
thereof by the Lessee, the entire amount of the award or
compensation or damages recovered on account of such taking or
condemnation shall promptly, when received or collected, be
deposited in a special fund to be used as hereinafter in this
subsection (a) provided, and there shall be an account of such
taking or condemnation no abatement or reduction in the rent
payable by the Lessee to the Authority during the balance of the
primary term of this Lease. The Lessee at its own cost shall, if
the same can lawfully be done, repair and restore said building in
the event of any such partial taking or condemnation, or shall
reconstruct said building or construct a new building or buildings
suitable for the needs and use of the Lessee as it may elect, in
the event said building be wholly taken or condemned, or be taken
or condemned to such an extent as to render said building
unsuitable for economical usage; but the total amount of such
award, compensation or damages paid to the Authority as aforesaid
shall in that event be paid over to the Lessee, at the Lessee's
election either upon the completion of such repairs and
restoration or of such reconstruction or construction or
periodically as such repairs and restoration or such construction
or reconstruction progress (but limited to the extent of the cost
of same), and shall be applied by the Lessee to the payment of the
cost thereof or, if such cost has already been paid by the Lessee,
to reimburse it for such cost, provided, however, that the
aggregate sum or sums paid shall in no event exceed the actual
cost of such repairs and restoration of such reconstruction or
construction.
10.02 Any surplus of such award or compensation or damages
remaining after the completion of any payment for such repairs and
restoration of such reconstruction or construction shall be
retained by Authority.
10.03 In the event the Lessee shall fail to repair and restore
or to reconstruct or to replace and pay the cost of repairing and
restoring or of reconstructing or replacing said building as it is
obligated by this section to do, after the lapse of a reasonable
time and after due notice is given by the Authority to the Lessee,
the Authority may repair and restore or reconstruct said building
and recover the reasonable costs thereof from the Lessee, less
whatever amount the Authority may collect from the funds
representing any such award or compensation or damages recovered
on account of any such taking or condemnation of the leased
premises and paid to the Authority.
10.04 Notwithstanding anything to the contrary that may be
hereinbefore provided in this section, in the event said building
cannot lawfully be repaired and restored or reconstructed or in
the event said building cannot lawfully be replaced by a new
building or buildings as hereinbefore in this section required or
permitted to be done, or if by reason of the reduction in size,
shape or dimension of the leased premises on which said building
is situated or for any other reason it shall not be economically
feasible and practicable to repair and restore or reconstruct said
building or to replace such building with such new building or
buildings so that same will be sufficient for the then needs and
use of the Lessee, then the Lessee shall not be required and the
Authority shall not be entitled to repair or restore or
reconstruct or replace said building as hereinbefore in this
section provided, if the Lessee shall exercise the following
option; and in which event the Lessee shall have, and is hereby
granted, the option to purchase the leased premises. To exercise
such option, the Lessee shall within 30 days following the taking
under exercise of the power of eminent domain (or conveyance in
lieu thereof) give written notice to the Authority and shall
specify therein the date of closing of such purchase, which date
shall not be less than 15 days nor more than 45 days from the date
such notice is mailed. The purchase price, which shall be payable
by the Lessee in cash at closing, shall be a sum that, when added
to the award, compensation or damages, will be sufficient to repay
and release or satisfy in full the then remaining principal
balance under said indebtedness secured by the leased premises (1)
in the face amount of $613,727.63 with all accrued interest
thereon to the date of payment, plus (2) any actual out-of-pocket
expense in closing the sale by Authority, plus (3) One Dollar.
The Authority will execute and deliver to Lessee, upon the payment
in cash of the purchase price, a Warranty Deed to the property,
and this Lease shall thereupon terminate.
ARTICLE XI
Default
11.01 It is made a condition under this Lease that if the
Lessee shall fail to pay any one or more rent installments, as
called for by this Lease, for a period of fifteen (15) days after
the same becomes due and payable, the Authority, at its option,
may, after thirty (30) days written notice and failure of the
Lessee to pay such rental installment within the said thirty (30)
days, cancel and terminate the Lease and recover possession of the
leased premises, such notice to be given as provided in
Article XXI herein.
11.02 It is further agreed that if the Lessee shall default
in the performance of any other of the terms, provisions,
covenants or conditions in its part to be performed, kept or
observed hereunder, then and in any such event the Authority at
its election may terminate this Lease at any time thereafter and
recover possession of the leased premises and personal property by
giving thirty days written notice, as provided in Article XXI
herein; and at the expiration of such thirty day period, this
Lease and all of the right and interest herein granted to the
Lessee, including any option privileges, shall cease and terminate
unless within such thirty day period all such default or defaults
shall have been cured, except in the event that the curing of such
default takes more than thirty days and the Lessee is proceeding
to cure the default as soon as possible.
11.03 If the right of the Lessee to the use, occupancy and
possession of the leased premises shall be terminated in any way,
then the Authority shall use its best efforts to relet said
premises or any part thereof for the account and benefit of the
Lessee for such renewal terms to such persons, firms, or
corporation and for such periods or period as may be fixed and
determined by the Authority, and the Authority shall not
unreasonably refuse to accept or receive any suitable occupant or
tenant offered by the Lessee. The Authority shall not otherwise
be required to do any act whatsoever or exercise any diligence
whatsoever in or about the procurement of another occupant or
tenant to mitigate the damages to the Authority, and if a
sufficient sum shall not be received from any reletting to satisfy
the rental payments hereby agreed to be made by the Lessee, after
paying the expenses of reletting and collection, then the Lessee
hereby agrees to pay and satisfy any such deficiency if, as and
when the same exists; provided, however, any excess rentals from
any such reletting shall be credited to any rental due or to
become due by the Lessee.
ARTICLE XII
Indemnification of Authority
12.01 The Lessee covenants that at all times it will protect
and hold the Authority harmless against claims for losses, damage
or injury, including death of or injury to the person or damage to
the property of others resulting from a wrongful or negligent act
or default of the Lessee, its agents, servants or employees, in,
on or about the leased premises, including the driveways,
sidewalks and roadways thereof, or for any other violations by the
Lessee of the terms of this Lease; and it is understood and agreed
that the Authority shall not be liable for any damage or injury
to the persons or property of the Lessee or its agents, servants
or employees, or any other person who may be upon the leased
premises, due to any act or negligence of any person other than
the Authority, its agents, servants and employees, or caused by
fire, water, steam, gas, sewage, electric current, or by the
breaking, leaking or destruction of pipes, or by an explosion, and
that all personal property brought upon the leased premises by
the Lessee, its servants, agents or employees, shall be at the
sole risk of the Lessee or of said agents, servants or employees,
and the Authority shall not be liable for any damage thereto or
destruction thereof, except as in this paragraph provided.
ARTICLE XIII
Remedies of Authority
13.01 The Lessee agrees that the rights and remedies of the
Authority under this Lease shall be cumulative and shall not
exclude any other rights and remedies of the Authority allowed by
law, and failure to insist upon the strict performance of any of
the covenants and agreements herein set forth or to declare a
forfeiture for any violation thereof shall not be considered or
taken as a waiver or relinquishment for the future of the
Authority's right to insist upon and to enforce by mandamus or
other appropriate legal remedy a strict compliance by the Lessee
with all of the covenants and conditions hereof, or of the
Authority's rights to declare a forfeiture for a violation of any
covenants or conditions, if such violation be continued or
repeated, or of the Authority's right to recover possession of the
leased premises by reason thereof.
ARTICLE XIV
Force Majeure
14.01 In case, by reason of FORCE MAJEURE, either party
hereto shall be rendered unable to wholly or in part carry out its
obligations under this Lease, other than the obligation of the
Lessee to make the rental payments required under the terms
hereof, then, except as otherwise provided in this Lease, if such
party shall give notice and full particulars of such Force Majeure
in writing to the other party within a reasonable time after the
occurrence of the event or cause relied on, the obligation of the
party giving such notice, so far as they are affected by such
Force Majeure, shall be suspended during the continuance of the
inability then claimed, but for no longer period, and such party
shall endeavor to remove or overcome such inability with all
reasonable dispatch. The term "FORCE MAJEURE", as employed
herein, shall mean acts of God, strikes, lockouts or other
industrial disturbances, acts of the public enemy, orders of any
kind of the Government of the United States or the State of
Georgia, or any civil or military authority, insurrection, riots,
epidemics, landslides, lightning, earthquakes, fires, hurricanes,
storms, floods, washouts, droughts, arrests, restraining of
government and people, civil disturbances, explosion, breakage or
accidents to machinery, transmission pipes or canals, partial or
entire failure of utilities or any other cause not reasonably
within the control of the party claiming such inability. It is
understood and agreed that the settlement of strikes, lockouts and
other industrial disturbances shall be entirely within the
discretion of the party having the difficulty and that the above
requirement that any Force Majeure shall be remedied with all
reasonable dispatch shall not require the settlement of strikes,
lockouts and other industrial disturbances by acceding to the
demands of the opposing party or parties when such course is
unfavorable in the judgment of the party having the difficulty.
ARTICLE XV
Bankruptcy, Dissolution and Merger
15.01 The Lessee agrees that in the event a receiver should be
appointed by a court of competent jurisdiction to take charge of
the business or assets of the Lessee, or in the event the Lessee
is adjudicated a bankrupt, whether voluntary or involuntary
proceedings, and such receivership or bankruptcy proceedings are
not dismissed within a period of sixty days, all rent for the
entire remaining term of this Lease shall forthwith and
automatically become due and payable in cash from the Lessee to
the Authority, and the Lessee shall immediately pay to the
Authority, without demand, the aggregate amount so payable.
ARTICLE XVI
Future Rentals
16.01 Payments may be made by the Lessee to the Authority
representing future monthly rentals, which shall apply on the last
rental payment due under this Lease, but same shall not in any way
alter or suspend any other obligations of the Lessee under the
terms of this Lease, and the Lessee shall continue to perform and
be responsible for the performance of all other terms and
provisions, including but not by way of limitation, obligations to
maintain and insure the premises at their own expense.
ARTICLE XVII
Inspection
17.01 The Lessee agrees and covenants that the Authority, or
its agent, at all reasonable times and during all reasonable
hours shall have free access to the demised premises for the
purpose of examining or inspecting the condition of same, or of
exercising any rights or powers reserved to the Authority under
the terms and provisions of this Lease.
ARTICLE XVIII
Option to Purchase
18.01 Notwithstanding any of the other terms and conditions
herein, the Authority does hereby grant to Lessee the right and
option to purchase the leased premises during the term of this
Lease and any renewal hereof. The purchase price shall be One
Hundred Dollars and the unpaid principal balance with all accrued
interest to the date of payment due by the Authority upon the note
and Deed to Secure Debt to The Xxxxxxxxx Bank described in
Article II hereof, plus any actual out-of-pocket expenses in
closing the sale by the Authority to the Lessee. The Authority
will execute and deliver to Lessee, upon the payment in cash of
the purchase price, a Warranty Deed to said property, upon the
exercise of this option to purchase by Lessee.
In addition, the Authority shall, upon the exercise of
the option to purchase and payment of purchase price, assign to
Lessee all rights, claims, and demands possessed by the Authority
with respect to any damage, destruction, and/or condemnation of
said property, including without limitation, all insurance
policies.
ARTICLE XIX
Assignment
19.01 The Lessee may not assign or transfer this Lease or
sublet the whole or any part of the leased premises, without the
written consent of the Authority, provided, however, that any such
assignment shall provide that the Lessee remain primarily liable
to the Authority for the payment of all rentals and for the full
performance of all the covenants and conditions of this Lease, and
that assignee Lessee shall be required to fulfill any and all
requirements of Georgia Law as to its authority to do business in
this state. The Authority may assign this Lease without the
permission of Lessee, either written or verbal.
ARTICLE XX
20.01 This Lease shall create the relationship of Landlord and
Tenant between the Authority, as Lessor, and the Lessee, as
Lessee, it being understood and agreed that no estate shall pass
out of the Authority, and that the Lessee has only a usufruct,
not subject to levy and sale except as in this Lease provided.
ARTICLE XXI
21.01 The Authority covenants and agrees that the Lessee, upon
payment of the rental herein and performing and observing the
covenants, conditions and agreements hereof upon the part of the
Lessee to be performed and observed, shall and may peaceably hold
and enjoy the leased premises during the terms hereof without any
interruption or disturbance from the Authority, subject, however,
to the terms of this Lease.
21.02 It is expressly understood and agreed that disbursements
from the special fund (resulting from insurance proceeds or
condemnation proceeds as provided for in Article VIII, Damage or
Destruction and Article IX, Condemnation) for repairs,
restoration, or replacement of improvements shall be made only
with the prior written approval of the lending institution.
ARTICLE XXII
Notices
22.01 All notices, demands and requests, which may or are
requested to be given from either party to the other, shall be in
writing and shall be deemed to have been properly given when
served personally on an executive officer of the party to whom
such notice is to be given, or when sent postage prepaid by
registered or certified mail (with or without requesting return
receipt) by depositing thereof in a duly constituted United States
Post Office or branch thereof in a sealed envelope as follows:
If intended for the Lessee: General Manufactured
Housing, Inc.
X.X. Xxx 0000
Xxxxxxxx, XX 00000
or if intended for the Authority: Waycross and Xxxx County
Development Authority
X.X. Xxx 000
Xxxxxxxx, XX 00000
22.02 Either party may change the address and name of the
addressee to which subsequent notices are to be sent to it by
notice to the other as aforesaid, but any such notice of change,
as sent by mail, shall not be effective until the fifth (5th) day
after it is mailed.
22.03 This Agreement shall survive any and all closings
referred to herein or contemplated by the terms hereof.
IN WITNESS WHEREOF, the Authority, being hereunto
authorized by valid and subsisting resolutions duly adopted, has
caused this Lease to be executed and delivered in its name and
behalf and under its seal, by and through its Chairman and
Secretary, and the Lessee being hereunto authorized by valid and
subsisting resolutions duly adopted, has caused this Lease to be
executed it its name and behalf and under its seal, by an through
its Chairman and Secretary.
WAYCROSS AND XXXX COUNTY
DEVELOPMENT AUTHORITY, LESSOR
BY: /s/ [illegible]
CHAIRMAN
ATTEST: /s/ [illegible]
SECRETARY
Signed, sealed and delivered
in the presence of:
/s/ [illegible]
WITNESS
/s/ [illegible]
NOTARY PUBLIC (SEAL)
My commission expires: July 26, 1997
stamped
GENERAL MANUFACTURED HOUSING,
INC.
BY: /s/ Xxxxxx Xxxxxx
PRESIDENT
ATTEST: /s/ [illegible]
SECRETARY
Signed, sealed and delivered
in the presence of:
/s/ [illegible]
WITNESS
/s/ [illegible]
NOTARY PUBLIC (SEAL)
My commission expires: July 26, 1997
stamped
EXHIBIT A
PARCEL ONE: All that tract of land in Xxxx County, Georgia, being
a part of Land Xxx Xx. 000 of the 8th Land District of Xxxx
County, Georgia, said tract described as follows: BEGINNING at a
point on the western margin of Industrial Boulevard, in the
Waycross-Xxxx County Industrial Park, at the southwestern corner
of the intersection of Industrial Boulevard and Xxxxxxx Road;
thence from said beginning point S 18 1/2 ll' W a distance of 1045
feet to a point; thence S 85 1/2 53' W at an interior angle of 112 1/2 18'
a distance of 432.3 feet to a point; thence N 18 1/2 11' E at an
interior angle of 67 1/2 42' a distance of 1096 feet to the southerly
margin of Xxxxxxx Road; thence S 87 1/2 36' E at an interior angle of
105 1/2 47' a distance of 415.6 feet to the point or place of
beginning; Said tract of land containing approximately 9.82 acres
of land and bounded on the north by Xxxxxxx Road; on the East by
Industrial Boulevard; on the South by Scapa Drive; and West by
other lands of Xxxx County, Georgia. Said tract is further
described by a survey and plat made by X. X. Xxxxxx dated 7/24/62,
for Waycross and Xxxx County Development Authority, recorded in
the office of the Clerk of Xxxx Superior Court in Plat Book "A",
Page 938, to which plat reference is hereby made for all property
purposes.
SUBJECT TO: an Easement for utilities 30 feet wide, beginning at
the southwest corner of the intersection of Xxxxxxx Road and
Industrial Boulevard and extending south of uniform width along
the western margin of Industrial Boulevard to the northwest corner
of the intersection of Industrial Boulevard and Scapa Drive.
SUBJECT TO: an encroachment for an existing county road across
the southeastern corner of said tract at the intersection of Scapa
Drive and Industrial Boulevard; reference being made to the above
stated plat which sows said encroachment which is approximately 12
feet at its widest point on Scapa Drive, diminishing to 1 along
Industrial Boulevard at a distance of approximately 100 feet.
PARCEL TWO: All those plots, pieces parcels or tracts of land
situate, lying and being in the County of Xxxx, State of Georgia,
more particularly described as follows:
TRACT 1:
All that tract or parcel of land situate, lying and
being in the 125th and 152nd Land Lots of the Eighth Land District
of Xxxx County, Georgia, and more particularly described as
follows:
To arrive at the Point of Beginning, commence at the
northeast corner of the intersection of Albany Avenue Extension
with Industrial Boulevard and run thence North 17 1/2 53' East along
the east margin a distance of 424 feet to an iron pin at the
POINT OR PLACE OF BEGINNING, continue thence North 17 1/2 53' East a
distance of 400 feet to a concrete monument; run thence Xxxxx
00 0/0 0" Xxxx a distance of 680 feet to a concrete monument; run
thence Xxxxx 00 0/0 00'00" Xxxx a distance of 415 feet; run thence
Xxxxx 00 0/0 00'00" Xxxx a distance of 399.4 feet; run thence South
72 1/2 07' East a distance of 598.65 feet; run thence South 01 1/2 10'
East a distance of 848.87 feet; run thence South 89 1/2 08' West a
distance of 604.97 feet to an axle; run thence South 11 1/2 59' West a
distance of 103.70 feet to a concrete monument; run thence North
72 1/2 07' West a distance of 713.5 feet to the POINT OR PLACE OF
BEGINNING.
TRACT 2:
All of that tract or parcel of land being in Xxxx
County, Georgia, described as follows: To obtain the starting
point of the property hereby conveyed, begin where the center line
of U.S. Highway #82 would intersect with the eastern right of way
line of Industrial Boulevard, if extended; thence from this point
run North 10 1/2 11' East along the easterly margin of Industrial
Boulevard a distance of 1036.5 feet to a point on the easterly
margin of Industrial Boulevard marked by a concrete marker, which
point is the BEGINNING POINT of the property described and
conveyed; thence from this Beginning Point run north 18 1/2 11' East
along the easterly margin of Industrial Boulevard a distance of
700 feet to a point marked by a concrete marker; thence at an
inside angle of 90 1/2 run South 71 1/2 49' East a distance of 400 feet
to a point marked by a concrete marker; thence at an inside angle
of 132 1/2 19' run Xxxxx 00 0/0 x0' Xxxx a distance of 399.4 feet to a
point marked by a concrete marker; thence at an inside angle of
135 1/2 31' run South 18 1/2 11' West a distance of 415 feet to a point
marked by a concrete marker; run thence North 71 1/2 49' West a
distance of 680 feet to the eastern margin of Industrial
Boulevard, the POINT OR PLACE OF BEGINNING.
ASSIGNMENT OF CONTRACT OF LEASE AND RENT
GEORGIA, XXXX COUNTY
FOR VALUE RECEIVED, and for the purpose of furnishing
additional security, the undersigned, WAYCROSS AND XXXX COUNTY
DEVELOPMENT AUTHORITY, does hereby transfer, sell assign unto THE
XXXXXXXXX BANK, a banking corporation with offices and place of
business in the City of Waycross, Georgia, that certain Contract
of Lease and Rent (hereinafter called Lease) made and entered into
on the 30th day of December, 1993 by and between Waycross and Xxxx
County Development Authority, a public corporation, and General
Manufactured Housing, Inc., a Georgia corporation with offices in
Xxxx County, Georgia. It is agreed and understood that Waycross
and Xxxx County Development Authority, unless and until there is a
default under the Security Deed from Waycross and Xxxx County
Development Authority to The Xxxxxxxxx Bank executed
contemporaneously herewith, that The Xxxxxxxxx Bank will collect
all rents provided for in said Lease, and will enforce all of the
terms and provisions of said Lease insofar as they relate to
performance by Lessee.
In the event of default under the Security Deed to The
Xxxxxxxxx Bank, said Bank is hereby, authorized to collect all
rents and to exercise any and all rights of the undersigned as
Lessor in and to said Lease and to enforce all provisions as
contained in said Lease.
In the event and upon payment of the indebtedness of
this undersigned to the Bank for which indebtedness this
assignment is made, the Bank, its successors and assigns, will
surrender this Lease and reassign same to Waycross and Xxxx County
Development Authority, its successors and assigns.
IN WITNESS WHEREOF, Waycross and Xxxx County Development
Authority has hereunto subscribed its corporate name and affixed
its corporate seal by and through its Chairman with the
attestation by the Secretary, who are the authorized officers, on
this the 30th day of December, 1993.
WAYCROSS AND XXXX COUNTY
DEVELOPMENT AUTHORITY
BY: /s/ [illegible] (SEAL)
CHAIRMAN
ATTEST: /s/ [illegible] (SEAL)
SECRETARY
Signed, sealed and delivered
in the presence of:
/s/ [illegible]
WITNESS
/s/ [illegible]
NOTARY PUBLIC (SEAL)
My commission expires: July 26, 1997
[stamped]
