1
Exhibit 10.1
LEASE
-----
This Lease ("LEASE") is made and entered into as of April 30,
2001, by and between:
FGSC, LLC
a Kentucky limited liability company
00000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000 ("LANDLORD")
and
DOMINION HOMES OF KENTUCKY, LTD.
0000 Xxxxx Xxxxxxxxxxx Xxxxxxx
a Kentucky limited partnership
Xxxxxxxxxx, Xxxxxxxx 00000 ("TENANT").
1. CERTAIN DEFINITIONS AND BASIC LEASE TERMS.
1. BASIC LEASE INFORMATION. In addition to the terms that are
defined elsewhere in this Lease, these terms are used in this Lease:
(a) Premises: The space containing approximately 4,185
square feet in the Shopping Center, with an address of 00000 Xxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, as such space is outlined on the
drawing attached to and made part of this Lease, marked Exhibit A.
(b) Premises Address:
00000 Xxxxxx Xxxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
(c) Term: Sixty (60) months (and the number of days, if
any, between the actual Commencement Date and the first day of the
immediately preceding calendar month), beginning on the Commencement Date
and expiring on the Expiration Date.
(d) Commencement Date: The Commencement Date shall be the
earlier of the date (i) thirty (30) days after Landlord delivers the
Premises to Tenant for fixturing, with the Landlord's Work substantially
complete, as set forth in section 2.1 of this Lease and in Exhibit B to
this Lease, or (ii) rent payments begin July 1, 2001 if Tenant decides to
complete construction on its own.
(e) Expiration Date: The date that is sixty (60) months
following the Commencement Date, plus the number of days, if any, to cause
this Lease to end on the last day of a calendar month.
28
2
(f) Base Rent: Tenant shall pay to Landlord as minimum rent for the
Leased Premises the following sums per year ("Base Rent") payable in equal
monthly installments:
Period Following Minimum Minimum Per
Rental Commencement Date Annual Rent Monthly Rent Square Foot
-------------------------------------------------------------------------------------------------------
Year I $69,052.59 $5,754.37 $16.50
Year 2 $69,052.59 $5,754.37 $16.50
Year 3 $69,052.59 $5,754.37 $16.50
Year 4 $75,330.00 $6,277.50 $18.00
Year 5 $75,330.00 $6,277.50 $18.00
The Base Monthly Rent shall be payable in advance commencing on the Rental
Commencement Date and thereafter on the first day of each calendar month during
the Lease Term, without offset for any amount due or claimed to be due from
Landlord to Tenant and without relief from valuation or appraisement laws.
(g) Additional Rent. All other amounts payable by Tenant pursuant to
this Lease, including without limitation Tenant's Pro Rata Share of Operating
Costs and Percentage Rent, all as set forth in this Lease.
(h) Pro Rata Share: Tenant's Pro Rata Share shall mean 11.52 based on
the expectation that the Premises will contain 4,185 square feet and that the
rentable area of the Shopping Center contains 36,315 square feet of space
rentable to tenants. Upon completion of construction, either Landlord or Tenant
may cause the Premises and the Shopping Center to be measured, in which event
Tenant's Pro Rata Share will be adjusted to reflect actual rentable square
footage. Any such change in Tenant's Pro Rata Share shall be set forth in an
amendment to this Lease, as contemplated by section 19 of this Lease.
(i) Shopping Center: The approximately 36,315 square foot shopping
center being constructed by Landlord, substantially as shown
on Exhibit A.
(j) Permitted Use: Office and Showroom.
(k) Security Deposit. $5,000.00 in accordance with section 16 of
this Lease.
(l) Agents. Xxxxx & EllislCommercial Kentucky, Inc.
1.2 INTERPRETATION. Each of the foregoing summary provisions shall be
construed and interpreted in conjunction with the other provisions of this
Lease.
29
3
2. CONDITION, LEASE, TERM, EXTENSIONS AND RENT.
2.1 CONSTRUCTION OF PREMISES AND SHOPPING CENTER. Landlord shall
construct the Premises and the Shopping Center in accordance with the Landlord
Work as set forth in the "Work Letter" attached to and made part of this Lease,
marked Exhibit B. Upon substantial completion of the Landlord Work, Landlord
shall deliver the Premises to Tenant and shall notify Tenant that the Landlord
Work is completed. Tenant shall then have possession of the Premises for
completion of the Tenant Work in accordance with the provisions set forth in
Exhibit B.
2.2 GRANT AND PREMISES. Landlord leases the Premises to Tenant, and
Tenant leases the Premises from Landlord, according to this Lease. Landlord also
grants to Tenant the right to use in common with other tenants the Common Areas,
subject to the provisions of this Lease. The "Common Areas" means the Shopping
Center except for premises leased to other tenants and also includes the right
of passage and parking pursuant to certain reciprocal easement agreements
benefiting the Shopping Center.
2.3 TERM. The term will be for the Term and will commence on the
Commencement Date and will expire on the Expiration Date. Upon commencement of
this Lease, Landlord and Tenant will execute an instrument acknowledging the
Commencement and Expiration Dates as contemplated by section 20 of this Lease.
2.4 RENT. Throughout the Term of this Lease, Tenant will pay Base Rent
to Landlord as rent for the Premises. Base Rent will be paid in advance on or
before the first day of each calendar month of the term. If the term commences
on a day other than the first day of a calendar month, then Base Rent will be
prorated by Landlord based on the actual number of calendar days in such month.
Base Rent will be paid to Landlord, without notice or demand, and without
deduction or offset, in lawful money of the United States of America at
Landlord's address, or to such other address or person or entity as Landlord may
from time to time designate in writing. The Base Rent is set forth in section 1
.f of this Lease. If neither Landlord nor Tenant requests an adjustment before
the Commencement Date, no adjustment will thereafter be made and the Base Rent
and square footage shall be as stated in this Lease.
2.5 LATE CHARGE. Any rent not paid within five (5) days of the due date
shall be subject to a late charge equal to five percent (5%) of such overdue
payment.
2.6 EXTENSION OPTIONS. If this Lease is then in effect, and provided
Tenant is not then in default, Tenant shall have the right to extend the term of
this Lease for up to two (2) additional terms of three (3) years each. To
exercise an option, Tenant shall give Landlord written notice of extension no
later than one hundred twenty (120) days prior to the Expiration Date, with
respect to the first extension option, and no later than one hundred twenty
(120) days prior to the end of the extension term, if any, then in effect with
respect to subsequent options. During any extension term(s), this Lease shall
remain in full force and effect, except for Base Rent, which shall be increased
as set forth below.
30
4
First Minimum Per Square
Option Period Base Rent Monthly Rent Foot
------------- --------- ------------ ----
Year 6 $79,515.00 $6,626.25 $19.00
Year 7 $81,607.50 $6,800.62 $19.50
Second Minimum Per Square
Option Period Base Rent Monthly Rent Foot
------------- --------- ------------ ----
Year 8 $83,700.00 $6,975.00 $20.00
Year 9 $85,742.50 $7,149.37 $20.50
Third Minimum Per Square
Option Period Base Rent Monthly Rent Foot
------------- --------- ------------ ----
Year 10 $87,885.00 $7,323.75 $21.00
Year 11 $87,885.00 $7,323.75 $21.00
3. TAXES, UTILITIES, OPERATING EXPENSES AND INSURANCE.
3.1 PROPERTY TAXES. Subject to Tenant's reimbursement for its Pro Rata
Share of Taxes, Landlord shall pay all ad valorem real property taxes and
assessments affecting the Shopping Center and the Premises.
3.2 OTHER TAXES. Tenant will pay promptly when due all personal
property taxes on Tenant's personal property in the Premises and any other taxes
payable by Tenant that if not paid might give rise to a lien on the Premises or
Tenant's interest in the Premises.
3.3 UTILITIES. Tenant shall provide separate meters, to cause all
utility services serving the Premises (except water and sewer, which shall be
part of Operating Expenses as set forth in Section 3.7 of this Lease) to be in
Tenant's name, and Tenant shall pay for all utility services provided to the
Premises.
3.4 TENANT'S LIABILITY INSURANCE. Commencing with the date on which the
Premises are made available to Tenant and continuing thereafter throughout the
Lease Term, Tenant shall maintain, at its sole expense, (a) general
comprehensive public liability insurance, including bodily injury, property
damage or other loss, insuring Tenant, Landlord and Landlord's lender (if any
and if notice of the name and address of such lender is provided to Tenant), in
an amount not less than Two Million Dollars ($2,000,000), and (b) if, and to the
extent required by law, worker's compensation or similar insurance offering
statutory coverage and containing statutory limits. All such insurance shall:
(1) be issued by a company that is licensed to do business in the Commonwealth
of Kentucky; (2) name Landlord and the holder of any mortgage as additional
insureds (as their interests may appear), and (3) contain an endorsement
prohibiting cancellation, failure to renew, reduction in amount of insurance or
change of coverage without the insurer's giving Landlord thirty (30) days' prior
written notice of such action. Tenant shall deliver a certificate of all such
insurance and receipts evidencing payment of the premium for such insurance to
Landlord concurrently with Tenant's execution of this Lease and at least
annually thereafter no later than ten (10) days before the expiration of any
policy.
3.5 PERSONAL PROPERTY INSURANCE. Tenant shall maintain in full force
and effect insurance covering all of Tenant's furniture and fixtures, machinery,
equipment, stock, and any other personal property owned and used in Tenant's
business and found in, on, or about the Premises, and any leasehold improvements
to the Premises installed by Tenant.
3.6 WAIVER OF SUBROGATION. Landlord and Tenant each waive any and all
rights to recover against the other for any loss or damage to such waiving party
arising from any cause covered by any property insurance required to be carried
by
31
5
such party pursuant to this Section 3 or any other property insurance
actually carried by such party to the extent of the limits of such policy.
3.7 TAXES AND OPERATING EXPENSES.
(a) Taxes. Tenant shall pay to Landlord an amount equal to Tenant's Pro
Rata Share of Taxes.
(b) Operating Expenses. Tenant shall pay to Landlord an amount equal to
Tenant's Pro Rata Share of Operating Expenses.
(c) Manner of Payment. Tenant's Pro Rata Share of Taxes and Operating
Expenses shall be paid in the following manner. Landlord may reasonably estimate
in advance the amounts Tenant shall owe for its Pro Rata Share of Taxes and
Operating Expenses for any full or partial calendar year. Tenant shall then pay
monthly in advance with Base Rent an amount equal to 1 / 12 of the estimated
amount for the calendar year. Promptly following the end of each calendar year,
Landlord shall provide to Tenant a statement of actual Taxes and Operating
Expensed for the previous year and Tenant's actual Pro Rata Share. If Tenant has
overpaid, then Landlord shall credit such overpayment on the next due payment of
Base Rent. If Tenant has underpaid, then Tenant shall pay the underpayment with
the next due payment of Base Rent.
(d) Proration. If the Term commences other than on January 1 or ends
other than on December 31, Tenant's obligation to pay its estimated and actual
Pro Rata Share of Taxes and Operating Expenses for such first and final years
shall be prorated to reflect the portion of such years.
(e) Landlord's Records. Landlord shall maintain complete records
respecting Taxes and Operating Expenses. Tenant shall have the right to examine
such records upon reasonable prior notice and within ninety (90) days of
receiving Landlord's statement of actual Taxes and Operating Expenses during
normal business hours at the place where Landlord normally keeps such records.
Tenant shall be deemed to have accepted the statement unless Tenant takes
exception in writing during that 90-day period. If Tenant takes exception, the
matter to which exception is taken will be referred to an independent
accountant, whose certification shall be final and conclusive. Tenant shall pay
the cost of such review and certification unless such review and certification
determines there was an error to Tenant's detriment.
(f) Definition of Taxes. "Taxes" means all federal, state, county or
local governmental taxes, fees, charges, assessments or other impositions of
every kind and nature, including without limitation real property ad valorem
taxes, which Landlord shall pay during any calendar year, any portion of which
occurs during the term of this Lease, because of or in connection with the
ownership, leasing and operation of the Shopping Center. Notwithstanding the
foregoing, there shall be excluded from Taxes, and Tenant will not be obligated
to pay, any inheritance tax, gift tax, transfer tax, franchise tax, income tax
(based on net income), or profit tax, imposed upon Landlord.
(g) Definition of Operating Expenses. "Operating expenses" means:
(i) All costs of operation and maintenance of the Shopping Center,
including without limitation wages, salaries, and compensation of employees
properly and solely attributable to the Shopping Center; accounting, legal,
janitorial, maintenance, guard, and other normal and customary services; power,
water, sanitary sewer and drainage, and other utilities for the Common Areas,
and water and sewer for the Premises and other leased premises; management and
administrative fees capped at 5% of gross receipts; exterior grounds and
32
6
landscaping maintenance, including replacing flowers and landscaping materials;
parking and drive areas; materials and supplies; roof repairs; general
maintenance and repairs; insurance obtained with respect to the Shopping Center
as contemplated by section 3.8 of this Lease; payments under any reciprocal
easement agreements and declarations of restrictions affecting or benefiting the
Shopping Center, depreciation on personal property and equipment, except as set
forth in
(ii) below or which is or should be capitalized on the books of
Landlord; and any other costs, charges and expenses that under generally
accepted accounting principles would be regarded as maintenance, and operating
expenses.
(iii) The Operating Expenses will not include: (1) depreciation on the
Shopping Center (other than depreciation on personal property and equipment used
in maintaining the Common Areas); (2) costs of alterations of space or other
improvements made for tenants of the Shopping Center; (3) finders' fees and real
estate brokers' commissions; (4) ground lease payments, mortgage principal, or
interest; (5) capital items, except repaving and re-striping of parking areas
and drives; (6) costs of replacements to personal property and equipment for
which depreciation costs are included as an operating expense; (7) costs of
excess or additional services provided to any tenant in the Shopping Center that
are directly billed to such Tenant; (8) the cost of repairs due to casualty or
condemnation that are reimbursed by third parties; (9) any income, estate,
inheritance, or other transfer tax and any excess profit, franchise, or similar
taxes on Landlord business; (10) all costs, including legal fees, relating to
activities for the solicitation and execution of leases of space in the Shopping
Center; and (11) any legal fees incurred by Landlord in enforcing its rights
under other leases for premises in the Shopping Center.
3.8 INSURANCE. At all times during the term/Landlord will carry and
maintain (a) fire and extended coverage insurance covering the Shopping Center,
its equipment and common area furnishings, including earthquake coverage and
rental insurance, in the full replacement value of the Shopping Center, (b)
comprehensive public liability insurance, with limits of not less than
$2,000,000, and (c) such other insurance as Landlord reasonably determines from
time to time.
4. USE AND COMPLIANCE.
4.1 Use. The Premises may be used only for the Permitted Use and no
other use without the express prior written consent of Landlord, and in all
events subject to the terms and provisions of all recorded covenants, easements,
conditions or restrictions that affect the use of the Premises. Tenant shall not
permit any unlawful occupation, business or trade to be conducted on any of the
Premises or any use to be made thereof contrary to applicable laws, ordinances
and regulations, and Tenant shall fully comply with all laws, ordinances and
regulations governing the Premises and Tenant's business conducted in the
Premises. Tenant shall not use or occupy or permit any of the Premises to be
used or occupied, nor do or permit anything to be done in or on any of the
Premises, in a manner which would (i) violate any certificate of occupancy
affecting any of the Premises, (ii) make void or voidable any insurance then in
force with respect to any of the Premises, (iii) make it difficult or impossible
to obtain fire or other insurance which is required hereunder, (iv) cause
structural damage to the Shopping Center, or (v) constitute a public or private
nuisance or waste. Tenant shall comply with all Rules and Regulations imposed by
Landlord on the Shopping Center or Common Areas, as initially set forth in
Exhibit D attached as part of this Lease. Landlord may reasonably amend the
Rules and Regulations so long as prior notice of the amendment is given to
Tenant and so long as the amendments apply to tenants of the Shopping Center in
a non-discriminatory manner.
4.2 ENVIRONMENTAL COMPLIANCE. Landlord, to the best of its knowledge,
represents that there are no
33
7
current environmental problems. As part of its obligation to comply with laws
and other requirements, Tenant shall not (either with or without negligence)
generate, use, store, or cause or permit the escape, disposal or release of any
Hazardous Materials in or about the Shopping Center or the Premises in violation
of applicable law and rules and regulations. Hazardous Materials shall mean (a)
"hazardous wastes", as defined by the Resource Conservation and Recovery Act of
1976, as amended from time to time, (b) "hazardous substances", as defined by
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended from time to time, (c) "toxic substances", as defined by the
Toxic Substances Control Act, as amended from time to time, (d) "hazardous
materials", as defined by the Hazardous Materials Transportation Act, as amended
from time to time, (e) any applicable state or local laws and the regulations
adopted under these acts, as amended from time to time, (f) oil or other
petroleum products whether refined or unrefined, (g) any highly combustible
substance and (h) any substance whose presence in Landlord's reasonable judgment
could be detrimental to the Shopping Center or hazardous to health or the
environment. If any lender or governmental agency shall ever require testing to
ascertain whether or not there has been any release of Hazardous Materials
within the Premises during Tenant's occupancy hereunder, then Tenant shall
reimburse the reasonable costs thereof to Landlord upon demand as Additional
Rent if such requirement applies to the Premises. In addition, Tenant shall
execute affidavits, representations and the like from time to time at Landlord's
request concerning Tenant's best knowledge and belief regarding the presence of
Hazardous Materials in the Premises. In all events, Tenant shall defend,
indemnify and hold Landlord harmless of and from any and all costs and expenses
of any nature arising from the release of Hazardous Materials in or about the
Premises or Shopping Center if caused by Tenant or persons acting under Tenant.
These within provisions of this section 4.2 shall survive the expiration or
other termination of this Lease.
5. ASSIGNMENT AND SUBLETTING.
Tenant may not assign this Lease, or sublet all or part of the Premises, without
the prior written consent of Landlord. Any transfer on an ownership interest in
Tenant shall constitute an assignment for purposes of this Lease (unless Tenant
is a publicly traded corporation). No permitted assignment or subletting will
release Tenant (or any guarantor) of its obligations under this Lease unless
expressly agreed to in writing by Landlord at the time of approval of the
assignment.
34
8
6. MAINTENANCE OF THE PREMISES.
6.1 BY TENANT. Except for maintenance obligations expressly assumed by
Landlord under Section 6.2 of this Lease, Tenant shall maintain and take good
care of the Premises, including without limitation the heating, air conditioning
and ventilation systems, mechanical, electrical and plumbing systems, and the
fixtures and plate glass, including making replacements when necessary. Tenant
shall, at the expiration or other termination of this Lease, surrender and
deliver up the same in like good order and condition as the same now is or shall
be at the commencement of the Term hereof, ordinary wear and tear excepted.
6.2 BY LANDLORD. Landlord, at Landlord's cost, shall maintain the
structural soundness of the Shopping Center and shall be responsible for the
roof and all other exterior and structural components.
7. ALTERATIONS.
7.1 ALTERATIONS. Tenant will not make any structural alterations,
installments, changes, replacements, additions or improvements (collectively
"Alterations"), in or to the Premises or any part thereof, without the prior
written consent of Landlord, which will not be unreasonably withheld or delayed.
All Alterations shall be performed in a good and workmanlike manner and shall
conform all requirements of local, state and federal governments. All
Alterations shall be made at Tenant's expense, after (i) Tenant has obtained all
necessary permits from governmental authorities and (ii) Tenant has submitted to
Landlord the proposed layout of the Alterations and Landlord has approved them,
which approval shall not be unreasonably withheld, delayed or conditioned. If
any mechanic's lien is filed against the Premises for work or materials
furnished to Tenant, the lien shall be discharged or bonded off by Tenant,
solely at Tenant's expense, within thirty (30) days after Tenant receives notice
thereof. Tenant shall indemnify and hold harmless Landlord from any and all
expenses (including attorney's fees), liens and claims or damage to persons,
property, or the Premises that may arise from the making of any Alterations.
7.2 REMAIN WITH PREMISES. Tenant agrees that all Alterations upon the
Premises shall at the election of Landlord, as provided in the written consent
required above, remain upon the Premises and be surrendered with the Premises at
the expiration of this Lease. Notwithstanding the foregoing, provided that
Tenant is not in default, Tenant shall have the right to remove at the
expiration or termination of this Lease, all movable furniture, fixtures or
equipment installed in the Premises solely at Tenant's expense. Should Landlord
elect that alterations, installments, changes, replacements, additions to or
improvements made by Tenant are not to remain on the Premises, Tenant hereby
agrees that within five (5) days following the expiration of the term of this
Lease, Landlord shall have the right to cause same to be removed at Tenant's
sole cost and expense.
7.3 EQUIPMENT. Tenant shall not install any other equipment of any kind
or nature whatsoever which will or may necessitate any changes, replacements or
additions to or unreasonably burden the water system, air conditioning system or
the electrical system of the Premises, or exceed the floor load capacity of the
Premises, without the prior written consent of the Landlord. If Tenant wishes to
install machinery or mechanical equipment which may cause noise or vibration to
be transmitted to the structure of the Shopping Center or any space therein,
such machinery shall be installed and maintained by Tenant, at Tenants expense,
on vibration eliminators or other devices sufficient to eliminate such noise and
vibration, all in accordance with Landlord's requirements. Tenant may, at its
expense, install and remove additional equipment and machinery used or useful in
Tenant's business, which equipment and machinery shall remain the property of
Tenant and shall not become part of the real estate, provided that such
installation shall not reduce the value of the Premises or its usefulness. Any
equipment of Tenant not removed by Tenant within ten (10) days after the
expiration or earlier termination of this Lease shall be considered abandoned by
Tenant and may be appropriated, sold, destroyed or otherwise disposed of by
Landlord
35
9
without first giving notice thereof and without obligation to account therefor.
7.4 CONTRACTORS. Tenant shall require any contractor retained by it to
perform any Alteration to carry and maintain at Tenant's or such contractor's
expense (and furnish the policy, policies or certificates thereof to Landlord,
Landlord's lender and Landlord's ground lessor, if any) during such times as
contractor is working in the Premises, (i) comprehensive general liability
insurance policy, including, but not limited to, contractor's liability
coverage, contractual liability coverage, complete operations coverage, broad
form property damage endorsement and contractor's protective liability coverage,
to afford protection with limits per person and for each occurrence, of not less
than One Million ($1,000,000), combined single limit, with respect to personal
injury and death and property damage, such insurance to provide for no
deductible, to name Landlord, Landlord's lender and ground lessor as additional
insureds and (ii) worker's compensation insurance or similar insurance in form
and amounts as required by law.
8. SURRENDER.
At the expiration or other termination of this Lease, Tenant will promptly quit
and surrender the Premises broom-clean, in good order and repair, ordinary wear
and tear excepted. If Tenant is not then in default, Tenant may remove from the
Premises any trade fixtures, equipment, and movable furniture placed in the
Premises by Tenant. Tenant will fully repair any damage occasioned by the
removal of any trade fixtures, equipment, furniture, alterations, additions, and
improvements.
9. CONDEMNATION.
9.1 AWARD. If any or all of the Premises are taken by the exercise of
any power of eminent domain or are conveyed to or at the direction of any
governmental entity under a threat of any such taking ("Condemnation"), Landlord
shall be entitled to collect from the condemning authority thereunder the entire
amount of any award made in any such proceeding or as consideration for such
deed. Notwithstanding the foregoing, Tenant may seek a separate award pursuant
to applicable law, including any tenant improvements made by Tenant at Tenant's
sole cost that are not to remain with the Premises upon expiration of this
Lease, loss of profit or goodwill, and moving/relocation expenses.
9.2 TOTAL TAKING. If (a) all of the Premises are taken by a
Condemnation or (b) if a substantial part of the Premises or the Shopping Center
is taken by a Condemnation such that the remainder is insufficient for the
reasonable operation of Tenant's business, then, in either such event, this
Lease shall terminate on the date upon which possession is taken by the
condemning authority, and all Rent shall be prorated and paid to such date.
36
10
9.3 PARTIAL TAKING. If there is a Condemnation and this Lease does not
terminate pursuant to the Section 9.2 of this Lease, the operation and effect of
this Lease shall be unaffected by such Condemnation, except that the Base Rent
shall be equitably reduced in proportion to the inability of Tenant to use a
portion of the Premises, taking into consideration the portion taken.
10. DAMAGE AND DESTRUCTION.
10.1 DAMAGE. If the Premises are damaged by fire or other insured
casualty, Landlord will give Tenant written notice of the time which will be
needed to repair such damage, as determined by Landlord in its reasonable
discretion, and the election which Landlord has made according to this Section
10. Such notice will be given before the 30th day (the "notice date") after the
fire or other insured casualty.
10.2 REBUI1DING LEASE CONTINUES. If the Premises are damaged by fire or
other insured casualty to an extent that may be repaired within ninety (90) days
after the notice date, as reasonably determined by Landlord, Landlord will
promptly begin to repair the damage after the notice date and will diligently
pursue the completion of such repair. In that event this Lease will continue in
full force and effect except that Base Rent will be abated on a pro rata basis
from the date of the damage until the date of the completion of such repairs
(the "repair period") based on the proportion of the rentable area of the
Premises Tenant is unable to use during the repair period.
10.3 RIGHT TO TERMINATE. If the Premises are damaged by fire or other
insured casualty to an extent that it may not be repaired within ninety (90)
days after the notice date, as reasonably determined by Landlord, then (a)
Landlord may terminate this Lease as of the date of such damage by written
notice given to Tenant on or before the notice date, or (b) Tenant may terminate
this Lease as of the date of such damage by written notice given to Landlord
within 10 days after Landlord delivery of a written notice that the repairs
cannot be made within such ninety (90) day period. If neither Landlord nor
Tenant so elects to terminate this Lease, Landlord will diligently proceed to
repair the Premises and Base Rent and Additional Rent will be abated on a pro
rata basis during the repair period based on the proportion of the rentable area
of the Premises Tenant is unable to use during the repair period.
11. SUBORDINATION
11.1 GENERAL. This Lease and Tenant's rights under this Lease are
subject and subordinate to any mortgage or other lien or encumbrance ("lien")
now or after the date hereof affecting or placed against the Premises (except to
the extent any such instrument expressly provides that this Lease is superior to
such instrument). This provision will be self-operative and no further
instrument of subordination will be required in order to effect it.
Notwithstanding the foregoing, Tenant will execute, acknowledge, and deliver to
Landlord, within 20 days after written demand by Landlord, such documents as may
be reasonably requested by Landlord or the holder of any superior lien to
confirm or effect any such subordination but without amendment to this Lease.
11.2 ATTORNMENT AND NONDISTURBANCE. Tenant agrees that if any holder of
a lien succeeds to Landlord interest in the Premises, Tenant will pay to such
holder all rents subsequently payable under this Lease. Further, Tenant agrees
that in the event of the enforcement by the holder of a superior lien of the
remedies provided for by law or by such superior lien, Tenant will, upon request
of any person or party succeeding to the interest of Landlord as a result of
such enforcement, automatically become the Tenant of and attorn to such
successor in interest without change in the terms or provisions of this Lease.
Notwithstanding any subordination of this Lease, in no event shall Tenant's
right to possession be disturbed (or this Lease be terminated) upon foreclosure
of any mortgage, so long as Tenant is not in default hereunder.
37
11
12. ENTRY BY LANDLORD.
Landlord, its agents, employees, and contractors may enter the Premises at any
time in response to an emergency. Upon at least two days notice to Tenant,
Landlord may exhibit the Premises to prospective purchasers and lenders. During
the last 90 days of the term of this Lease, and upon at least two days notice to
Tenant, Landlord may exhibit the Premises to prospective tenants.
13. LIABILITY AND INDEMNIFICATION.
13.1 INDEMNITY. Except for any injury or damage to persons or property
on the Premises that is proximately caused by or results proximately from the
negligence or willful act of Landlord, its agents, employees or contractors, or
from Landlord's default of its obligation under section 6.2 of this Lease,
Tenant will indemnify and hold harmless Landlord from and against, any and all
demands, claims, causes of action, fines, penalties, damages, liabilities,
judgments, and expenses (including without limitation reasonable attorneys'
fees) incurred in connection with or arising from the negligent use or occupancy
or negligent manner of use or occupancy of the Premises by Tenant or any person
claiming under Tenant, any breach by Tenant or its employees, agents,
contractors, or invitees of this Lease, and any injury or damage to the person,
property, or business of Tenant, its employees, agents, contractors, or invitees
entering upon the Premises under the express or implied invitation of Tenant
except for any injury or damage to persons or property on the Common Areas that
is proximately caused by or results proximately from the negligence or willful
act of Tenant, its agents, employees, contractors, customers, guest or invitees,
or from Tenant's default of its obligations of this Lease, Landlord will
indemnify and hold harmless Tenant from and against, any and all demands,
claims, causes of action, fines, penalties, damages, liabilities, judgments, and
expenses (including without limitation reasonable attorneys' fees) occurring on
the Common Areas and arising from the negligence or willful act of Landlord".
13.2 PERSONAL PROPERTY AND BUSINESS. All personal property of Tenant in
the Premises shall be at the sole risk of Tenant. Landlord shall not be liable
for any accident to or damage to the property of Tenant resulting from the use
or operation of the heating, cooling, electrical or plumbing apparatus or any
other cause whatsoever, unless caused by the negligent or willful act or
omission of Landlord.
13.3 NO LIABILITY. Except to the extent caused by the negligence or
willful misconduct of Landlord, its agents or employees, Landlord shall have no
liability to Tenant for any damage, compensation or claim arising from the
repair by Landlord of any portion of the Premises, any interruption in the use
of the Premises, accident or damage resulting from the use or operation (by
Landlord, Tenant or any other person) of heating, cooling, electrical or
plumbing equipment or apparatus, or from untenantability of the Premises
resulting from fire or other casualty, or from any robbery, theft, mysterious
disappearance and/or any other casualty, or from any leakage in any part or
portion of the
38
12
Premises except the roof to the extent not maintained by Landlord after notice
from Tenant, or from water, rain or snow that may leak into or flow from any
part of the Premises, or from drains, pipes or plumbing work in the Shopping
Center.
14. DEFAULT AND REMEDIES.
14.1 EVENTS OF DEFAULT. As used in this Lease, each of the following
events shall constitute and is referred to as, an "Event of Default": (a) If
Tenant (i) fails to pay Base Rent, Additional Rent or any other sum which Tenant
is obligated to pay by any provision of this Lease, when and as it is due and
payable hereunder and without demand therefor, or (ii) in any respect violates
any of the terms, conditions or covenants set forth in the provisions of this
Lease; or (b) if Tenant (i) applies for or consents to the appointment of a
receiver, trustee or liquidator of Tenant or of all or a substantial part of its
assets, (ii) files a voluntary petition in bankruptcy or admits in writing its
inability to pay its debts as they come due, (iii) makes an assignment for the
benefit of its creditors, (iv) files a petition or an answer seeking a
reorganization or an arrangement with creditors, or seeks to take advantage of
any insolvency law, (v) performs any other act of bankruptcy, or (vi) files an
answer admitting the material allegations of a reorganization insolvency
proceeding; or (c) if an order of relief or other order, judgment or decree is
entered by any court of competent jurisdiction adjudicating Tenant as insolvent,
or otherwise entitled to the protection of or subject to any bankruptcy statute,
approving a petition seeking such a reorganization, or appointing a receiver,
trustee or liquidator of Tenant or otherwise commence with respect to Tenant or
any of its assets any proceeding under any bankruptcy, reorganization,
arrangement, insolvency, readjustment, receivership or similar law, and if such
order, judgment, decree or proceeding continues unstayed for more than sixty
(60) consecutive days after the expiration of any stay thereof.
14.2 NOTICE, GRACE PERIOD. Upon the occurrence of an Event of Default
Tenant shall not be deemed to be in default, and Landlord shall not exercise any
right or remedy which it holds under any provision of this Lease or under
applicable law until (a) Landlord has given written notice thereof to Tenant,
and (b) Tenant has failed, (i) if such Event of Default consists of the failure
to pay money, within ten (10) calendar days after the date Landlord presents
notice to pay all of such money that is due, or (ii) if such Event of Default
consists of something other than the failure to pay money, within thirty (30)
days thereafter to commence actively, diligently and in good faith to proceed to
cure such Event of Default and to continue to do so until it is fully cured;
provided however, if Tenant commences to cure such default during such thirty
(30) day period, and such default cannot be cured within such period despite
diligent effort, Tenant shall be afforded such additional time as may reasonably
required to affect a cure provided that Tenant continues to diligently pursue
such cure. No notice of default shall be required of Landlord, and Tenant shall
be entitled to no grace period, (1) more than once with respect to monetary
default during each twelve (12) month period of the Term, or (2) if Tenant has
substantially terminated or is in the process of substantially terminating its
continuous occupancy and use of the Premises.
14.3 REMEDIES. Upon the occurrence of an Event of Default, Landlord, at
its option, may terminate this Lease, or without terminating this Lease
terminate Tenant's right of possession, may pursue any and all other remedies
available to it under the laws of the Commonwealth of Kentucky, including, by
way of example rather than of limitation, the rights to (a) re-enter and
repossess the Premises, with lawful force, and any and all improvements thereon
and additions thereto; (b)immediately recover an amount equal to the present
value (as of the date of Tenant's default) of the Base Rent and Additional Rent
which would have become due through the date on which the Term would have
expired but for Tenant's default, which damages shall be payable to Landlord in
a lump sum on demand. For purposes of this Section, present value shall be
computed by discounting at a rate equal to one percent (1.0%) above the "prime
rate" as then published in the Wall Street Journal, and collect such balance in
any manner not inconsistent with applicable law; (c) relet any or all of the
Premises for Tenant's account for any
39
13
or all of the remainder of the Lease Term, or for a longer term; and/or (d)
recover from Tenant the cost to Landlord of any reasonable fees relating to
reletting of the Premises including but not limited to construction costs,
brokerage fees, reasonable attorney's fees.
14.4 CUMULATIVE RIGHTS. Landlord's rights and remedies set forth in
this Lease are cumulative and in addition to Landlord's other rights and
remedies at law or in equity, including those available as a result of any
anticipatory breach of this Lease. Landlord's exercise of any such right or
remedy shall not prevent the concurrent or subsequent exercise of any other
right or remedy. Landlord's delay or failure to exercise or enforce any of
Landlord's rights or remedies or Tenant's obligations shall not constitute a
waiver of any such rights, remedies or obligations. Landlord shall not be deemed
to have waived any default unless such waiver expressly set forth in an
instrument signed by Landlord. Any such waiver shall not be construed as a
waiver of any covenant or condition except as to the specific circumstances
described in such waiver. Neither Tenant's payment of an amount less than a sum
due nor Tenant's endorsement or statement on any check or letter accompanying
such payment shall be deemed an accord and satisfaction. Notwithstanding any
request or designation by Tenant, Landlord may apply any payment received from
Tenant to any payment then due. Landlord may accept the same without prejudice
to Landlord's right to recover the balance of such sum or to pursue other
remedies. Re-entry and acceptance of keys shall not be considered an acceptance
of a surrender of this Lease.
14.5 RIGHT OF LANDLORD TO CURE TENANT'S DEFAULT. If Tenant defaults in
the performance of any of its obligations under this Lease, then Landlord shall
have the right (but not the duty) to perform such obligation, and Tenant shall
reimburse Landlord for any costs and expenses thereby incurred, together with
interest thereon at that rate per annum that is two percent (2%) greater than
the "prime rate" as then published in the Wall Street Journal, from the date
such costs and expenses are incurred by Landlord to the date of payment thereof
by Tenant; provided, however, that nothing herein contained shall be construed
or implemented in such a manner as to allow Landlord to charge or receive
interest in excess of the maximum legal rate then allowed by law. Such payment
and interest shall constitute Additional Rent hereunder, which shall be due and
payable with the next monthly installment of Base Rent; but the making of such
payment or the taking of such action by Landlord shall not operate to cure such
default or to stop Landlord from the pursuit of any remedy to which Landlord
would otherwise be entitled.
15. SIGNS.
Tenant shall not be entitled to place any signs in, on or about the Premises,
including without limitation on the exterior walls of the Premises, unless
Landlord has first approved the size, design and location in writing. In any
event, Tenant shall be fully responsible for complying with all laws, ordinances
and regulations regarding signs. All such signs shall be removed by Tenant, at
Tenant's cost, upon expiration of this Lease and any damage to the Premises or
the Shopping Center resulting from such removal shall be repaired at Tenant's
cost.
16. SECURITY DEPOSIT.
Contemporaneously with the execution of this Lease, Tenant shall pay to Landlord
the Security Deposit set forth in Section 1.1(1) of this Lease as security for
the payment and performance by Tenant of all Tenant's obligations, covenants,
conditions and agreements under this Lease. Upon the expiration of the Term
hereof or any extension or renewal thereof, Landlord shall, if Tenant is not in
default, return such Security Deposit to Tenant, less such portion thereof as
Landlord shall have appropriated to make good any default by Tenant with respect
to Tenant's obligations within ninety (90) days of such expiration. If Tenant
makes any default during the term of this Lease or
40
14
fails to take possession within thirty (30) days of the Commencement Date,
Landlord shall have the right, but not the obligation, to apply all or any
portion of the Security Deposit to remedy such default, in which event Tenant
shall promptly deposit with Landlord the amount necessary to restore the
Security Deposit to its original amount. The Security Deposit shall not be
deemed liquidated damages, and Landlord's application of said Security Deposit
to reduce its damages shall not preclude recovery from Tenant of any additional
damages incurred by Landlord. If the Landlord sells or transfers its interest in
the Building, Landlord shall transfer the Security Deposit, and the Landlord
shall be released from all liability to Tenant for the return of such Security
Deposit.
17. QUIET ENJOYMENT.
Landlord hereby covenants that Tenant, on paying the Base Rent, Percentage Rent
and Additional Rent and performing the covenants and agreements set forth in
this Lease, shall without interference from Landlord peaceably and quietly hold
and enjoy, throughout the Term the Premises and such rights as Tenant holds
under this Lease with respect to the Premises.
18. GENERAL.
18.1 TIME OF THE ESSENCE. Time is of the essence of each and every
provision of this Lease.
18.2 NO WAIVER. The waiver by Landlord of any agreement, condition, or
provision contained in this Lease will not be deemed to be a waiver of any
subsequent breach of the same or any other agreement, condition, or provision
contained in this Lease, nor will any custom or practice that may grow up
between the parties in the administration of the terms of this Lease be
construed to waive or to lessen the right of Landlord to insist upon the
performance by Tenant in strict accordance with the terms of this Lease. The
subsequent acceptance of Base Rent or Additional Rent by Landlord will not be
deemed to be a waiver of any preceding breach by Tenant of any agreement,
condition, or provision of this Lease, other than the failure of Tenant to pay
the particular rent so accepted, regardless of Landlord knowledge of such
preceding breach at the time of acceptance of such rent.
18.3 LIMITATION ON RECOURSE. Tenant specifically agrees to look solely
to Landlord interest in the Premises for the recovery of any judgments from
Landlord, and neither Landlord nor any of its members, managers, directors,
shareholders, partners, employees or agents shall be personally liable for any
such judgments. In the event of any transfer of Landlord's interest in the
Premises, Landlord shall be automatically freed and relieved from all applicable
liability accruing thereafter with respect to performance of any covenant or
obligation on the part of Landlord, provided any deposits or advance rents held
by Landlord are turned over to the grantee and the grantee expressly assumes all
of the terms, covenants and conditions of this Lease to be performed on the part
of Landlord, it being intended hereby that the covenants and obligations
contained in this Lease on the part of Landlord shall be binding on Landlord,
its successors and assigns, only during their respective periods of ownership.
Landlord may freely assign its interest under this Lease. Following any such
assignment, Landlord shall remain liable for performance of all obligations of
the Landlord hereunder incurred prior to such assignment.
18.4 ESTOPPEL CERTIFICATES. At any time and from time to time but
within 10 days after prior written request by Landlord, Tenant will execute,
acknowledge, and deliver to Landlord, promptly upon request, a certificate
certifying (a) that this Lease is unmodified and in full force and effect or, if
there have been modifications, that this Lease is in full force and effect, as
modified, and stating the date and nature of each modification; (b) the date, if
any, to which rent and other sums payable under this Lease have been paid; (c)
that no written notice of any default has been delivered to Landlord, which
default has not been cured, except as to defaults specified in said certificate;
and (d) that there is no event of default under this Lease or an event which,
41
15
with notice or the passage of time, or both, would result in an event of default
under this Lease, except for defaults specified in said certificate.
18.5 HOLDING OVER. If Tenant does not immediately surrender the
Premises upon the expiration of the Lease Term, then the rent shall be increased
to One Hundred Fifty (150%) per cent of the Base Rent that would have been
payable pursuant to the provisions of this Lease if the Lease Term had continued
during such holdover period. Any holdover shall be deemed to be a month-to-month
tenancy, notwithstanding any provisions of KRS Chapter 383 to the contrary. All
provisions of this Lease shall remain in full force and effect during the
holdover period, except Base Rent as set forth in this section and except for
the term, which shall be month to month as aforesaid. In addition to the
increase in Base Rent, Tenant shall be liable to Landlord for any costs, damages
or liabilities suffered by Landlord as a result of Tenant's failure to vacate
the Premises at the end of the Term.
18.6 NOTICES. Any notice, request, demand, consent, approval, or other
communication required or permitted under this Lease must be in writing and will
be deemed to have been given when personally delivered, sent by facsimile with
receipt acknowledged, deposited with any nationally recognized overnight carrier
that routinely issues receipts, or deposited in any depository regularly
maintained by the United States Postal Service, postage prepaid, certified mail,
return receipt requested, addressed to the party for whom it is intended at its
address set forth in this Lease, or to such other addresses of which the other
party is given written notice pursuant to this section. Any notice shall be
deemed received the day personally delivered, if personally delivered, the day
receipt of a facsimile is acknowledged, if sent by facsimile, one day after
deposit in either the U.S. mail, if sent by certified mail, or one day after
deposit with a nationally recognized overnight carrier, if sent by overnight
carrier. Failure or refusal to accept delivery shall constitute receipt.
18.7 SEVERABILITY. If any provision of this Lease proves to be illegal,
invalid, or unenforceable, the remainder of this Lease will not be affected by
such finding, and in lieu of each provision of this Lease that is illegal,
invalid, or unenforceable a provision will be added as a part of this Lease as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible and be legal, valid, and enforceable.
42
16
18.8 AMENDMENT. No amendment, alteration, modification of, or addition
to the Lease will be valid or binding unless expressed in writing and signed by
Landlord and Tenant.
18.9 ENTIRE AGREEMENT. This Lease contains the entire agreement between
Landlord and Tenant. No promises or representations, except as contained in this
Lease, have been made to Tenant respecting the condition or the manner of
operating the Premises.
18.10 CAPTIONS. The captions of the various articles and sections of
this Lease are for convenience only and do not necessarily define, limit,
describe, or construe the contents of such articles or sections.
18.11 NOTICE OF LANDLORD DEFAULT. In the event of any alleged default
in the obligation of Landlord under this Lease, Tenant will deliver to Landlord
written notice listing the reasons for Landlord default and Landlord will have
30 days following receipt of such notice to cure such alleged default or, in the
event the alleged default cannot reasonably be cured within a 30-day period, to
commence action and proceed diligently to cure such alleged default.
18.12 GOVERNING LAW. This Lease will be governed by and construed
pursuant to the laws of the Commonwealth of Kentucky.
18.13 BINDING EFFECT. The covenants, conditions, and agreements
contained in this Lease will bind and inure to the benefit of Landlord and
Tenant and their respective heirs, executors, administrators, successors, and,
except as otherwise provided in this Lease, their assigns.
18.14 FORCE MAJEURE. If Landlord shall be delayed, or hindered, or
prevented from the performance of any act required hereunder (except for the
payment of monies), by reason of government restrictions, scarcity of labor or
materials, or for other reasons beyond its reasonable control, the performance
of such act shall be excused for the period of delay and the period for the
performance of any such act shall be extended for a period equivalent to the
period of such delay.
18.15 TENANT'S AUTHORITY. Tenant hereby warrants and represents that
each individual executing this Lease on behalf of Tenant is duly authorized to
execute and deliver this Lease and that Tenant is an entity duly formed and
existing under the laws of the State where formed, is qualified to do business
in the Commonwealth of Kentucky, and has the power and authority to enter into
this Lease, and that all action requisite to authorize Tenant to enter into this
Lease has been duly taken.
18.16 NO RECORDING. This Lease shall not be recorded
43
17
18.17 COMMISSION. Landlord and Tenant warrant that they have not had
any dealings with any realtor, broker or agent in connection with the
negotiation or entering into of this Lease, except for the Agent(s), if any,
identified in section 1.1(n), whose commission shall be paid for by Landlord
pursuant to the terms of a separate agreement between Landlord and Agent(s).
Should any claim for a commission be established by any other broker or agent,
the parties hereby expressly agree to hold one another harmless with respect
thereto to the extent that one or the other is shown to have been responsible
for the creation of such claim.
19. ADJUSTMENTS.
Upon completion of the Landlord Work contemplated by section 2.1 of this Lease
and Exhibit B to this Lease, the establishment of the Commencement Date pursuant
to section 1.1(d) of this Lease, any adjustments to Base Rent as contemplated by
section 2.4 of this Lease, and any adjustments to Tenant's Pro Rata Share as
contemplated by section 1.1 (f) of this Lease, Landlord and Tenant shall execute
and deliver to each other an amendment to this Lease setting forth any such
adjustments.
Landlord and Tenant have executed this Lease as of the date set forth
above, but actually on the dates set forth below.
LANDLORD:
FGSC, LLC
By: /s/ Xxxxxx Xxx
Title: President
Date: May 1, 2001
TENANT:
DOMINION HOMES OF KENTUCKY, LTD.
By: /s/Xxxxxxx X. Xxxxxx
Title: President
Date: April 30, 2001
44
18
EXHIBIT B
Work Letter
LANDLORD'S WORK. Tenant accepts the Premises `as is, where is' as of the date of
this Lease and acknowledges that Landlord will make no additional improvements
to the Premises, but will provide the following allowance instead.
TENANT'S WORK ALLOWANCE. Landlord shall pay to Tenant an amount equal to
Sixty-Five Thousand Dollars ($65,000.00) as an allowance (the "Tenant Work
Allowance") to reimburse Tenant for a portion of the costs associated with the
design and construction of the work to be performed by Tenant in the Premises
(the "Tenant Work"). Landlord shall pay this Tenant work Allowance to Tenant
upon the occurrence of all of the following: (a) inspection by Landlord to
ensure Tenant complied with the approved plans and specifications for the Tenant
Work, (b) receipt of lien waivers and/or affidavits reasonably acceptable to
Landlord from Tenant's contractors, subcontractors and suppliers, and (c) the
Lease having commenced and Tenant having taken occupancy of the Premises".
45
