Exhibit 10.17
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT ("Agreement"), dated as of this 1st day of
November, 2002, between the SAVANNAH ECONOMIC DEVELOPMENT AUTHORITY, a public
body corporate and politic and an instrumentality of the State of Georgia,
created and existing under the Constitution and Laws of the State of Georgia,
having an office at 0000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, XX 00000
("SEDA"), and XXXXXXXX'X INC., a Delaware Corporation, having its main office at
0 Xxxx Xxxxx Xxxxxx, Xxxxxxxx, XX 00000 ("Lessee").
SEDA is the owner of certain real property consisting of 5.893 acres
located in the City of Savannah, Chatham County, Georgia, more particularly
described on Exhibit A attached hereto and made a part hereof by this reference
("the Property"), which is a part of a larger development known as Crossroads
Business Center ("Crossroads"). SEDA has agreed to construct a corporate office
building/distribution facility approximately 40,000 square feet, together with
ancillary improvements on the Property (referred to herein together with the
Property as the "Project") for use by Lessee. SEDA will lease the Project to
Lessee pursuant to a Lease Agreement (the "Lease") to be entered into between
the parties. In consideration of the commitment of SEDA to lease the Project to
Lessee and carry out its other obligations hereunder, Lessee, subject to the
terms and conditions hereof, will indemnify SEDA as hereinafter set forth.
SEDA desires to appoint Lessee as SEDA's agent for the construction and
equipping of the Project pursuant to the terms of this Development Agreement,
and Lessee has agreed to perform such construction work on behalf of SEDA.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and the satisfaction of all contingencies, SEDA and Lessee
agree as follows:
1. Description of Project. Subject to the terms and conditions of this
Agreement Lessee intends to use the Project as a corporate office
building/distribution facility. The Project contains the following
estimates:
a. Lessee will begin construction during the Third Quarter
2002 and intends to be operational in Xxxxx Xxxxxxx 0000. Estimated
investment is $4,500,000.
b. Lessee intends to retain approximately 200 employees and
between 2002 and 2004 create approximately fifty (50) professional
managers, technicians, warehousemen and technical support level
employee positions. Additional employees may be added during peak
times.
c. Lessee intends to utilize Georgia's port facilities for its
shipping needs whenever practical and competitive;
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d. Lessee intends to purchase from and subcontract with local
vendors where economically viable and competitively priced.
2. Lease. SEDA will lease the Property and the Project to Lessee pursuant
to the Lease, to be entered into between the parties, on the date hereof.
Pursuant to the terms of the Lease, SEDA will hold title to the Project and
lease the same to Lessee for a base term of ten years and which may be extended
by mutual agreement of the Parties. The Lease may be terminated at any time by
Lessee and, upon such termination, the Project shall be conveyed by SEDA to
Lessee for no additional consideration. The parties agree that during the term
of the Lease, although the Property and the Project shall be titled in SEDA,
Lessee shall be treated as the owner of the Project for federal and state income
taxation purposes. During the term of the Lease and subject to the more
particular terms of the Lease, Lessee or its designee will make payments (the
`Additional Rent") to SEDA on January 1 in the years and amounts as follows:
January 1 Additional
of the year Rent(1)
----------- ------------
2003-2005 $ 0
2006 9,908
2007 16,513
2008 23,119
2009 29,724
2010 36,329
2011 42,935
2012 49,540
2013 and thereafter. (2)
(1) Fixed amounts payable for investment in the Project through the Term of the
Lease.
(2) Amount to be determined by A Certified Public Accountant agreeable to SEDA
in an amount equal to what ad valorem taxes would be if the Project were
owned by Lessee.
No other lease payment will be required (other than payment for Lot 1A
described below, the hereinafter described Base Rent and any applicable
indemnity payments).
3. Requirements Relating to Lot 1A. That portion of the Property shown on
Exhibit B as Lot 1A consists of 1.08 ACRES and shall be maintained as attractive
green space by Lessee and its assigns until such time as Lessee or its assigns
shall elect to construct improvements of any type thereon, including surface
parking. Prior to construction of any such improvements Lessee or its assigns
shall notify SEDA in writing of its election to construct such improvements and
shall pay
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SEDA the sum of $59,400 prior to beginning any such construction. Said payment
shall be in addition to the hereinafter described Base Rent and the
above-described Additional Rent.
4. Additional Investment. Any additional capital investment which consists
of land improvements or fixtures (other than identified or referenced herein)
made by Lessee with respect to the Project during the term of the Lease, will,
at the request of Lessee, be titled in the name of SEDA and leased to Lessee
pursuant to an amendment to the Lease. Said additional capital investment will,
to the extent then authorized by Georgia law, be exempt from ad valorem taxes
while titled in the name of SEDA, but will be subject to the payment of
additional annual rent in amounts to be set forth in the amendment to the Lease.
5. Cost of Property. Upon execution and delivery of the Lease, Lessee will
pay SEDA the sum of $264,7 15 for the Property (the "Base Rent"). Fee simple
title to the Property and the Project will be conveyed to Lessee, subject only
to liens authorized by Lessee, upon termination of the Lease, for no further
consideration.
6. Real Estate Commission. SEDA and Lessee hereby represent that they have
not engaged or dealt with any agent, broker or finder relating to this
Development Agreement or the Project.
7. Ad Valorem Taxes. Under current Georgia law, no ad valorem taxes will
be due on the Property or those portions of the Project which consist of land,
improvements and fixtures to land which are titled in the name of SEDA. However,
SEDA makes no representations as to whether governmental taxing authorities will
determine that any particular fixtures included within the Project constitute
personality, and as a result such fixtures become subject to ad valorem
taxation.
8. Construction of the Project. SEDA hereby appoints Lessee as its agent
to perform or cause to be performed, and Lessee hereby agrees to act as SEDA's
agent in the performance of the construction of the Project in accordance with
the plans and specifications to be prepared by or for Lessee (the
"Specifications"), with the cost thereof payable solely from funds provided by
Lessee. All such work shall be performed by Lessee in a good and workmanlike
manner in accordance with the provisions of this Agreement and all requirements
of law, including all applicable rules, regulations, ordinances, statutes, and
guidelines promulgated by any applicable governmental or quasi-governmental
authorities, agencies or organizations (collectively referred to as the
"Governmental Authorities").
SEDA hereby authorizes and appoints Lessee as its agent to take all
actions necessary to accomplish the construction of the Project, including
without limitation the following:
a. Procuring any and all licenses, permits and approvals for the
construction of the project;
b. Entering into all construction contracts for the
construction of the Project;
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c. Executing all documentation and taking all action necessary to
cause the disbursement of funds obtained for the construction of the
Project;
d. Procuring and maintaining all insurance coverage required
pursuant to the construction of the Project; and
e. Performing all other actions with regard to the construction
of the Project as contemplated pursuant to this Agreement.
9. Architectural Review Committee. SEDA will assist Lessee to obtain
prompt review of plans and specifications as required in the covenants and
standards of Crossroads Business Center.
10. Project Specifications. SEDA and Lessee must approve the design for the
Project as set forth in the Specifications. The plans for such elements of the
Project not shown on the initial Specifications shall be generally consistent
with the approved Specifications for the Project, and shall be incorporated into
final Specifications prepared by Lessee's architect, engineer or contractor. All
such Specifications shall be prepared in sufficient detail to permit the
construction thereof by a third party contractor.
11. Permits and Approvals. Lessee shall, as agent for SEDA, apply for and
obtain any and all necessary building permits, licenses, variances and approvals
that are necessary to construct the Project. SEDA agrees that it shall at all
time cooperate with Lessee in the procurement of any such permits, licenses,
variances and approvals, and shall execute such documentation as is reasonably
required therefor.
12. Construction Contract. Lessee as agent shall enter into all
construction contracts necessary for the performance of the Project and shall
provide SEDA with notice of and copies of the construction contracts into which
it enters.
13. Performance of Construction.
a. Lessee shall after the awarding of the construction contracts
cause the commencement and diligent continuance of the construction of
the Project (all items of work shown on the Specifications for the
construction of the Project are sometimes collectively referred to
herein as the "Project Work")
b. All Project Work shall be performed pursuant to good
construction practices and sound professional standards, and in
compliance with all laws and legal regulatory requirements of
Governmental Authorities relating to the construction and the
performance of the work. All construction shall be performed in a good
and
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workmanlike manner, utilizing good quality materials. As relates to
this Agreement, Lessee shall be solely responsible for all means,
methods and techniques in the performance of all Project Work. As
relates to this Agreement, Lessee shall be responsible for the
supervision of the Project Work, and shall advise SEDA as to the
progress of such work. SEDA and its designated engineer may attend any
meeting with the construction manager and contractors and may visit the
job site to inspect the progress and performance of the work during
normal business hours upon prior notice to Lessee.
c. The Project Work shall be performed in a diligent and
continuous fashion utilizing an adequate workforce in order to
expeditiously construct the Project.
d. During the course of the Project Work, Lessee may order
changes in the Project Work within the general scope of the plans,
consisting of additions, deletions or other revisions that Lessee deems
necessary or desirable, provided that such changes are in conformity
with the requirements of the Governmental Authorities.
14. Cost of Construction.
a. Lessee shall provide all funds required for the construction
of the Project, estimated to be $3,251,949.
b. Lessee shall, as agent for SEDA, procure: (i) all necessary
invoices, payment receipts and lien waivers from the relevant
contractors and material men for all of the Project work; (ii) procure
any certifications required from the designated engineers as to the
completion of the portion of each component of the Project Work that is
the subject of each such requisition; and (iii) pay all contractors
performing Project Work in accordance with their applicable contracts.
If any mechanics' or material mens' liens are filed against the
Property or any portion thereof by any contractor or subcontractor or
any agent to Lessee with regard to the performance of the Project Work,
then Lessee shall bond and/or discharge any such lien within thirty
days of notice of any such filing. Lessee agrees to defend, indemnify
and hold SEDA harmless from any losses sustained by SEDA as a result of
the foreclosure of any such liens.
c. Lessee shall keep full and detailed accounts for all materials
and labor used in the performance of the Project Work in accordance
with generally accepted accounting practices, and SEDA will be provided
with access at all reasonable times after prior notice to Lessee to
related records, correspondence, construction drawings, receipts,
vouchers, memoranda and other documents relating to such work, the
contracts and payment therefor.
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15. Indemnity and Insurance.
a. Lessee shall indemnify, defend and save SEDA and its agents,
servants, employees, officers and directors harmless from any and all
loss, damages, liability, costs or expenses including but not limited
to attorney's fees and court costs, arising out of any act or omission
of Lessee, its agents, contractors, subcontractors, servants, employees
or licensees in connection with any Project Work performed by Lessee in
its capacity as agent for SEDA, except to the extent any such loss,
damages, liability, costs or expenses arise due to the negligence or
willful misconduct of SEDA.
b. Lessee shall maintain or cause its contractors to maintain in
force a commercial general comprehensive public liability policy or
policies of insurance written by one or more responsible insurance
carriers licensed to do business in Georgia insuring against liability
for injury to and/or death of any/or damage to property of any person
or persons in connection with the Project Work to be performed by
Lessee pursuant to this Agreement, together with Builder's Risk and
extended all-risk insurance on the Project, and Workers' Compensation
insurance as may be required by law with regard to the Project Work.
Such policies shall provide among other things, that the insurer(s)
specifically recognize and insure the obligations undertaken by Lessee
pursuant to this Agreement and shall name SEDA as an additional
insured. Lessee agrees to deliver to SEDA a certificate of insurance
evidencing the existence in force of such policy or policies of
insurance. Such certificate will provide that such insurance will not
be canceled or materially amended unless ten days' prior written notice
of such cancellation or amendment is given to SEDA.
16. Representations, Warranties and Covenants of Lessee. Lessee represents,
warrants and covenants that (i) Lessee is a Delaware corporation, (ii) Lessee
has full right and authority to enter into this Agreement and to consummate the
transactions contemplated herein, (iii) each of the persons executing this
Agreement on behalf of Lessee is authorized to do so, and (iv) this Agreement
constitutes a valid and legally binding obligation of Lessee, enforceable in
accordance with its terms.
17. Representations and Warranties of SEDA. SEDA represents, warrants and
covenants to Lessee and Agent that:
a. (i) SEDA is a duly authorized and existing public body
corporate and politic and instrumentality of the State of Georgia created and
existing under the Constitution of Laws of the State of Georgia, (ii) SEDA has
full right and authority to enter into this Agreement and to consummate the
transactions contemplated herein, (iii) each of the persons executing this
Agreement on behalf of SEDA is authorized to do so, (iv) this Agreement
constitutes a valid and legally binding obligation of SEDA, enforceable in
accordance with its terms, (v) SEDA will execute and deliver such other
documents,
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instruments, agreements, including but not limited to affidavits and
certificates reasonably necessary to effectuate the transaction
contemplated herein, and (vi) SEDA will take all such additional action
reasonably necessary or appropriate to effect and facilitate the
consummation of the transaction contemplated herein.
x. XXXX will not sell, encumber, mortgage, convey, assign or
contract to sell, convey, assign, pledge, encumber or lease all or any
part of the Project, nor any interest therein, nor restrict the use of
all or any part of the Project, without the written consent of Lessee,
nor take or cause to be taken any action in conflict with this
Agreement at any time between the date hereof and the termination of
this Agreement pursuant to its terms. SEDA additionally hereby
represents and warrants that no rights-of-first refusal or similar
agreements exist in connection with the Project.
c. Neither the entering into of this Agreement nor the
consummation of the transaction contemplated hereby will constitute or
result in a violation or breach by SEDA of any judgment, order, writ,
injunction or decree issued or imposed upon it, or will result in a
violation of any applicable law, order, rule or regulation of any
governmental authority. There is no action, suit, proceeding or
investigation pending against SEDA which would become a cloud on the
title to the Property or any portion thereof or which questions the
validity or enforceability of the transaction contemplated by this
Agreement or any action taken pursuant hereto in any court or before or
by any federal, district, county or municipal department, commission,
board, bureau, agency or other governmental instrumentality.
x. XXXX has no knowledge of, nor has SEDA received any notice of,
any actual or threatened action, litigation or proceeding by any
organization, person, individual or governmental agency (including
governmental actions under condemnation authority or proceedings
similar thereto) against the Property or SEDA, nor has any such
organization, person, individual or governmental agency communicated to
SEDA anything which SEDA believes to be threat of any such action,
litigation or proceeding.
x. XXXX has not received any notice of any violations of law,
municipal or county ordinances, or other legal requirements with
respect to the Property or with respect to the use, occupancy or
construction thereon.
18. Miscellaneous,
a. All notices, requests, demands or other communications
hereunder shall be in writing and deemed given when delivered
personally, when telefaxed via confirmed facsimile transmission, or on
the day said communication is deposited in the U.S. mail, by registered
or certified mail, return receipt requested, postage prepaid, addressed
as follows:
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If to SEDA: Savannah Economic Development Authority
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: President
FAX No. (000) 000-0000
With a copy to: Xxxxxx Xxxxx & Xxxx LLP
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx, Xx.
FAX No. (000) 000-0000
If to Lessee or Agent: Xxxxxxxx'x, Inc.
0 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
With a copy to: Xxxxx X. Xxxxxxxxx, Esq.
c/x Xxxxxxxx'x Inc.
000 xxxx Xxxxxx
Xxxxxxx, XX 00000
or to such other address as the parties may from time to time designate by
notice in writing to the other parties.
b. The provisions of this Agreement are not intended to create,
nor shall they in any way be interpreted to create, joint venture, a
partnership, or any other similar relationship between parties, other
than the specific agency relationship between SEDA and Lessee set forth
above.
c. The captions heading the various sections of this Agreement
are for convenience and identification only, and shall not be deemed to
limit or define the contents of their respective sections.
d. Neither party shall record or attempt to record this Agreement
in any public records. Upon the request of either party, the other
party shall execute and deliver a recordable memorandum of this
Agreement for recordation in the records of the Superior Court of
Chatham County, Georgia, in a form approved by both parties.
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e. If any provision of this Agreement or the application thereof
to any person or circumstance shall to any extent be held invalid, the
remainder of this Agreement or the application of such provision to
persons or circumstances other than those as to which it is held
invalid shall not be affected thereby, and each such remaining
provision of this Agreement shall be valid and enforceable to the
fullest extent permitted by law.
f. This Agreement may only be modified or amended by means of a
written agreement signed by the parties hereto.
g. This Agreement is subject to the terms, conditions and
provisions of the Lease. In the event of any conflict between the terms
of this Agreement or the terms of the Lease, the terms of the Lease
shall control.
IN WITNESS WHEREOF, SEDA and Lessee have executed this Agreement by
and through their duly authorized officers, and have affixed their respective
seals hereto as of the date first above written.
SAVANNAH ECONOMIC DEVELOPMENT
AUTHORITY
By:
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Its:
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(Corporate Seal)
Attest:
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Its:
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XXXXXXXX'X, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Its: CFO
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(Corporate Seal)
Attest: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Its: General Counsel
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