EXHIBIT 10.1
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), made and entered into by and between Xxxxxx
Construction Company I, LLC, a North Carolina limited liability company,
hereinafter referred to as "Landlord", and Converse Inc., a corporation
organized under the laws of the State of Delaware, hereinafter referred to as
"Tenant".
WITNESSETH:
1. Premises and Term. In consideration of the obligation of Tenant to pay rent
as herein provided, and in consideration of the other terms, provisions and
covenants hereof, Landlord hereby demises and leases to Tenant, and Tenant
hereby takes from Landlord that certain premises consisting of approximately
Seventeen (17) acres, more or less, situated within the County of Mecklenburg,
State of North Carolina, and more particularly described on EXHIBIT "A" attached
hereto and incorporated herein by reference, together with all rights,
privileges, easements, and appurtenances belonging to or in any way pertaining
to the premises and together with the buildings and other improvements situated
upon said premises (said real property, building and improvements being
hereinafter referred to as the "premises").
TO HAVE AND TO HOLD for the term (the "term") commencing on the "commencement
date", as hereinafter defined, and ending one hundred twenty (120) months
thereafter
The commencement date of this lease (hereinafter the "commencement date") shall
be at 12:01 A.M. on February 1, 2001, the day immediately following the
expiration of the term of the existing lease of the premises, dated March 17,
1970, which Landlord and Tenant hereby agree shall expire on January 31, 2011.
2. Base Rent. Tenant agrees to pay to Landlord base rent for the premises, in
advance, without demand, deduction or set off, for the entire term hereof at the
rate of Eighty Thousand Two Hundred Forty-Five and No/100 Dollars ($80,245.00)
per month. One such monthly installment shall be due and payable on the
commencement date and a like monthly installment shall be due and payable on or
before the first day of each calendar month succeeding the commencement date
during the hereby demised term.
3. Use. The premises shall be used only for the purpose of sale, storage,
distribution, repair and servicing of its merchandise, and for all other
operations
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necessary or incident to the conduct of its business. Tenant shall at its own
cost and expense obtain any and all licenses and permits necessary for any such
use. Tenant shall comply with all governmental laws, ordinances, and regulations
applicable to the use of the premises, and shall promptly comply with all
governmental orders and directives for the correction, prevention and abatement
of nuisances, in, upon or connected with, the premises, all at Tenant's sole
expense. Tenant shall not permit any objectionable or unpleasant odors, smoke,
dust, gas, noise or vibrations to emanate from the premises, nor take any other
action which would constitute a nuisance or would disturb or endanger any other
tenants of the building in which the premises are situated or the occupants of
buildings in the vicinity of the premises or unreasonably interfere with their
use of their respective premises. Without Landlord's prior written consent,
Tenant shall not receive, store or otherwise handle any product, material or
merchandise which is explosive or highly inflammable. Tenant will not permit the
premises to be used for any purpose or in any manner (including without
limitation any method of storage) which would render the insurance thereon void
or the insurance risk more hazardous or cause the State Board of Insurance or
other insurance authority to disallow any sprinkler credits. It is understood
that the Tenant's current use of the premises is an appropriate and acceptable
use.
4. Base Rent Adjustment. The base rent payable under the terms of Paragraph 2
of this Lease shall be adjusted on the fourth, seventh and tenth annual
anniversaries of the commencement date of this Lease in accordance with the
following provisions:
Base rent shall be increased on each Comparison Date by the Percentage CPI
Increase. Provided, however, that: (i) the Base Rent for the second Comparison
Date shall be the Base Rent as previously increased during the second three (3)
year period of this Lease and (ii) the Base Rent for the third Comparison Date
shall be the Base Rent as previously increased during the third three (3) year
period of this Lease. Landlord shall notify Tenant on or about each Comparison
Date of each increase by delivering a written statement setting forth the Index
for the Base CPI Month, the Index for the applicable Comparison CPI Month, the
Percentage CPI Increase, and the new minimum base rent payable by Tenant.
Beginning on the first (1st) day of the month immediately following receipt by
Tenant of Landlord's notice herein, and continuing thereafter until the next
Comparison Date or the end of the Lease, whichever shall first occur, Tenant
shall pay Landlord the new Base Rent and in addition, Tenant shall pay Landlord
the difference between the new Base Rent and the Base Rent previously paid for
any month following the last Comparison Date to the end that the Landlord shall
have been paid the new Base Rent for each calendar month following the last
Comparison Date.
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For purposes of this Section, the following definitions shall apply:
(i) The "Index" shall mean the United States Department of Labor, Bureau
of Labor Statistics, Consumer Price Index for all Urban Consumers (on the basis
1982-1984 = 100). If the format or components of the Index have materially
changed before or after the execution of this Lease, Landlord shall substitute
an index which is published by the Bureau of Labor Statistics or similar agency
and which has been determined by independent third party sources to be
comparable to the Consumer Price Index for all Urban Consumers in effect on the
date of this Lease. Landlord shall notify Tenant of the substituted index, which
shall be used to calculate the increase in the minimum base rent.
(ii) The "Comparison Date" shall mean each of the third (3rd), sixth (6th)
and ninth (9th) calendar anniversary of the commencement date of this Lease.
(iii) The "Comparison CPI Month" for each Comparison Date shall mean the
month immediately preceding the month in which such Comparison Date occurs.
(iv) The "Base CPI Month" shall be defined as follows: (1) for the
Comparison Date which occurs on the third (3rd) calendar anniversary of the
Lease commencement date, the month in which the lease commencement date occurs
(Month 1); (2) for the Comparison Date which occurs on the sixth (6th) calendar
anniversary of the Lease commencement date, the month which is three (3) years
after the Lease commencement date (Month 37); and (3) for the Comparison Date
which occurs on the ninth (9th) calendar anniversary of the Lease commencement
date, the month which is six (6) years after the Lease commencement date (Month
73).
(v) The "Percentage CPI Increase" shall mean the increase in the Index
which has occurred between the Base CPI Month and the Comparison CPI Month for
each Comparison Date.
5. Five Year Renewal Option. Landlord hereby grants the Tenant the right to
extend the term hereof for an additional five (5) years beginning at 12:01 A.M.
on February 1, 2011. The Tenant shall renew the Lease by giving the Landlord
written notice thereof as provided in Paragraph 24 hereof not less than six (6)
months prior to the expiration of the initial ten year term of this Lease. In
the event the Tenant does renew this Lease for such additional five (5) year
term, all terms and conditions of this Lease for the initial ten (10) year term
shall apply to the five (5) year renewal term except that the rent payable shall
be determined as hereinafter provided.
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The base rent payable for the first two (2) years of the five (5) year
renewal term shall be the same amount of rent payable during the tenth (10th)
year of the initial ten (10) year term hereof.
Base rent shall be increased by the Percentage CPI Increase on the first
(and only) Comparison Date during the five (5) year renewal term, which shall be
on the second (2nd) calendar anniversary of the beginning of the five (5) year
renewal term. The Base CPI Month for the Comparison Date during the five (5)
year renewal term shall be the month which is nine (9) years after the Lease
commencement date).
The provisions of Paragraph 4, except as modified in this Paragraph 5,
shall apply in determining the rent payable by the Tenant to the Landlord during
the five (5) year renewal term.
6. Landlord's Repairs. Landlord shall at its expense maintain only the roof and
the structural soundness of the foundation and exterior walls of the building in
good repair, reasonable wear and tear excepted. Tenant shall repair and pay for
any damage to the roof, foundation and exterior walls of the building caused by
Tenant, or Tenant's employees, agents or invitees, or caused by Tenant's default
hereunder. In connection with maintaining the roof in good repair, the Tenant
agrees to not allow any of its employees, agents or invitees to gain access to
the roof without the written approval of the Landlord, except for the specific
purpose of repairing the exhaust fans on the roof which are a part of the HVAC
system. With regard to the Landlord's obligations hereunder, the term "walls" as
used herein shall not include interior and exterior windows, glass, painting or
plate glass, doors, special store fronts or office entries, all of which shall
be the responsibility of the Tenant to repair and maintain. Tenant shall
immediately give Landlord written notice of defect or need for repairs, after
which Landlord shall have reasonable opportunity to repair same or cure such
defect. Landlord's liability with respect to any defects, repairs or maintenance
for which Landlord is responsible under any of the provisions of this lease
shall be limited to the cost of such repairs or maintenance of the curing or
such defect.
7. Tenant's Repairs and Other Covenants of Care and Treatment or Premises.
A. Tenant shall at its own cost and expense keep and maintain all parts of the
premises (except those for which Landlord is expressly responsible under the
terms of the Lease) in good condition, promptly making all necessary repairs and
replacement, including, but not limited to, interior and exterior windows, glass
and plate glass, doors, any special office entries, interior walls, painting,
exterior walls (other than structural) and finish work, doors and floor
covering, down spouts, gutters, heating and air conditioning systems,
transportation accesses
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and pavement, dock boards, truck doors, dock bumpers, plumbing work and
fixtures, termite and pest extermination and regular removal of interior trash
and debris, keeping the whole of the premises in a clean and sanitary condition.
In making all such repairs and/or replacements, Tenant shall comply with all
governmental codes, requirements and regulations. Tenant shall be obligated to
repair any damage to Landlord's property caused by fire, windstorm, tornado,
earthquake or other casualty, unless the cost to repair is fully covered by the
insurance to be maintained by Tenant pursuant to subparagraph 13(A) below.
B. Tenant shall, at its own cost and expense, enter into a regularly scheduled
preventative maintenance/service contract with a maintenance contractor for
servicing all hot water, heating and air conditioning systems and equipment
within the premises. The maintenance contractor and the contract must be
approved by Landlord. The service contract must include all services suggested
by the equipment manufacturer within the operation/maintenance manual and must
become effective (and a copy thereof delivered to Landlord) within thirty (30)
days after the Commencement Date of this Lease.
C. Tenant agrees that washing over the road tractor and trailer equipment is
permitted and will take place on the premises, including the truck apron and
parking areas, but there shall be no washing of any kind on asphalt areas.
D. Tenant covenants and agrees not to permit any employees, agents,
representatives, or any subcontractors to go upon the roof of any building
within the premises without the Landlord's written consent. Notwithstanding the
foregoing, the Tenant may make emergency repairs to the roof; provided, that the
Tenant gives the Landlord notice thereof within thirty (30) days thereafter.
Tenant shall be permitted access to the office roof to service the HVAC units,
but any damage to the roof caused by such servicing shall be the Tenant's
responsibility to repair and pay the cost thereof. The failure on the part of
the Tenant to comply with this covenant and agreement shall cause the Tenant to
be fully liable for the entire cost of making any and all necessary repairs to
the roof which were cause by such entry upon the roof.
8. Alterations. Tenant shall not make any alterations, additions or
improvements to the premises (including but not limited to roof and wall
penetrations) without the prior written consent of Landlord, which consent shall
not be unreasonably withheld. Tenant may, without the consent of Landlord, but
at its own cost and expense and in a good workmanlike manner erect such shelves,
bins, machinery and trade fixtures as it may deem advisable, without altering
the basic character of the building or improvements and without overloading or
damaging such building or improvements, and in each case complying with all
applicable governmental laws, ordinances, regulations and other requirements.
All alterations, additions, improvements and partitions
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erected by Tenant shall be and remain the property of Tenant during the term of
this Lease and Tenant shall, unless Landlord otherwise elects as hereinafter
provided, remove all alterations, additions, improvements and partitions erected
by Tenant and restore the premises to their original condition by the date of
termination of this Lease or upon earlier vacating of the premises and shall be
delivered up to the Landlord with the premises. All shelves, bins, machinery and
trade fixtures installed by Tenant may be removed by Tenant prior to the
termination of this Lease if Tenant so elects, and shall be removed by the date
of termination of this Lease or upon earlier vacating of the premises if
required by Landlord; upon any such removal Tenant shall restore the premises to
their original condition. All such removals and restoration shall be
accomplished in a good workmanlike manner so as not to damage the primary
structure or structural qualities of the buildings and other improvements
situated on the premises.
9. Signage. Tenant shall have the right to install signs upon the premises only
when first approved in writing by Landlord and subject to any applicable
governmental laws, ordinances, regulations and other requirements. Tenant shall
remove all such signs by the termination of this Lease. Such installations and
removals shall be made in such manner as to avoid injury or defacement of the
building and other improvements, and Tenant shall repair any injury or
defacement, including without limitation discoloration, caused by such
installation and/or removal. The provisions of this paragraph shall not apply to
any existing signs upon the premises which were installed during the prior
lease.
10. Inspection. Landlord and Landlord's agents and representatives shall have
the right to enter and inspect the premises at any reasonable time during
business hours, for the purpose of ascertaining the condition of the premises or
in order to make such repairs is may be required or permitted to be made by
Landlord under the terms of this lease. During the period that is twelve (12)
months prior to the end of the term hereof, Landlord and Landlord's agents and
representatives shall have the right to enter the premises at any reasonable
time during business hours for the purpose of showing the premises and shall
have the right to erect on the premises a suitable sign indicating the premises
are available. Tenant shall give written notice to Landlord at least forty-five
(45) days prior to vacating the premises and shall arrange to meet with Landlord
for a joint inspection of the premises prior to vacating. In the event of
Tenant's failure to give such notice or arrange such joint inspection,
Landlord's inspection at or after Tenant's vacating the premises shall be
conclusively deemed correct for purposes of determining Tenant's responsibility
for repairs and restoration.
11. Utilities. Landlord has already made available during the prior lease water,
electricity and telephone service connections into the premises, and Tenant
shall pay for all water, gas, storm water fees, heat, light, power,
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telephone, sewer, sprinkler charges and other utilities and services used on or
from the premises, together with any taxes, penalties, surcharges or the like
pertaining thereto and any maintenance charges for utilities and shall furnish
all electric light bulbs and tubes. Landlord shall in no event be liable for any
interruption or failure of utility services on the premises.
12. Assignment and Subletting. Tenant shall not have the right to assign,
sublet, transfer or encumber this lease, or any interest therein, without the
prior written consent of Landlord, which consent shall not be unreasonably
withheld. Any attempted assignment, subletting, transfer or encumbrance by
Tenant in violation of the terms and covenants of this Paragraph shall at
Landlord's option be void. In addition to all rents payable hereunder by the
Tenant to the Landlord, the Landlord shall, in addition, be entitled to receive
from the Tenant one-half (1/2) of all cash or other proceeds received by the
Tenant which exceeds the rentals called for hereunder, resulting from any
sublease of the premises, assignment of this Lease or any other transfer. Such
additional rent shall be paid to Landlord, whether such assignment, subletting
or other transfer is consented to by Landlord or not, unless Landlord agrees to
the contrary in writing. These covenants shall run with the land and shall bind
Tenant and Tenant's heirs, executors, administrators, personal representatives,
successors and assigns in any bankruptcy proceeding. Any assignee, sublessee or
transferee of Tenant's interest in this lease (all such assignees, sublessees
and transferees being hereinafter referred to as "successors"), by assuming
Tenant's obligations hereunder shall assume liability to Landlord for all
amounts paid to persons other than Landlord by such successors in contravention
of this Paragraph. No assignment, subletting or other transfer, whether
consented to by Landlord or not, shall relieve Tenant of its liability
hereunder. Upon the occurrence of an "event of default" as hereinafter defined,
if the premises or any part thereof are then assigned or sublet, Landlord, in
addition to any other remedies herein provided, or provided by law, may at its
option collect directly from such assignee or subtenant all rents becoming due
to Tenant under such assignment or sublease and apply such rent against any sums
due to Landlord from Tenant hereunder, and no such collection shall be construed
to constitute a novation or a release of Tenant from the further performance of
Tenant's obligations hereunder. In determining the reasonableness of Landlord's
decision to grant or withhold its consent to a proposed assignment or sublease,
Landlord may take into consideration all relevant factors surrounding the
proposed assignment or sublease, including, without limitation, the following:
(a) the business reputation of the proposed assignee or subtenant and its
officers, directors and stockholders; (b) the nature of the business and the
proposed use of the premises by the proposed assignee or subtenant; (c) the
financial condition of the proposed assignee or subtenant; (c) the effect that
the proposed assignee's or subtenant's occupancy or use of a portion of the
premises would have upon the premises and Landlord's investment therein; (d) the
extent to
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which the proposed assignee or subtenant and Tenant provide Landlord with
assurances reasonably satisfactory to Landlord as to the satisfaction of
Tenant's obligation hereunder, including the payment of rent; and (e)
restrictions, if any, imposed by the holder of any deed to secure debt or
mortgage encumbering the premises or any portion thereof.
13. Fire and Casualty Damage.
A. Tenant shall keep the building(s) and all other improvements on the premises
insured for the benefit of Landlord only, against loss or damage by fire,
windstorm, hurricane, tornado, earthquake and similar hazards covered by
insurance of the type now known as "fire or extended coverage", and shall keep
and provide boiler and machinery insurance covering pressure vessels, air tanks,
boiler, machinery, pressure piping, and heating and air conditioning equipment,
in an amount reasonably satisfactory to Landlord. Such fire and extended
coverage policy or policies shall be for the full replacement value of the
building(s) and all other improvements located on the premises, including
sufficient proceeds to rebuild the improvements in compliance with all
applicable building codes. Tenant shall maintain and pay for such insurance on
Tenant's personal property as Tenant deems appropriate for Tenant's protection.
The Tenant shall not use or permit upon the premises anything that will
invalidate any policy of hazard or extended coverage or boiler and machinery
insurance now or hereafter carried with respect to the premises.
B. The policies representing such hazard insurance coverage shall contain a
provision that they may not be cancelled without first giving Landlord not less
than thirty (30) days prior written notice. A duplicate copy of the policies, or
a certificate of such insurance coverage, shall be delivered to Landlord prior
to commencement of the term of this Lease, and renewal policies, or copies
thereof, shall be delivered to Landlord at least thirty (30) days prior to the
expiration date of the preceding policy or policies, provided until such time as
the policy or the certificate is available, a binder, in usual form, will
suffice. All such insurance shall be for the sole benefit of Landlord, shall be
issued by insurance providers who have been approved in writing by the Landlord,
and shall be issued in the name of and insure only the Landlord and shall be
under its sole control.
C. If the buildings situated upon the premises should be damaged or destroyed by
fire, tornado or other casualty, Tenant shall give immediate written notice to
Landlord.
D. If the buildings situated upon the premises should be totally destroyed by
fire, windstorm, hurricane, tornado, earthquake or other casualty, or if they
should be partially damaged thereby so that rebuilding or repairs cannot in
Landlord's estimation be completed within two hundred fifty-five (255) days
after the date upon which Landlord is notified by the Tenant of such damage,
this
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lease shall terminate and the rent shall be abated during the unexpired portion
of this Lease, effective upon the date of the occurrence of such damage.
E. If the buildings situated upon the premises should be damaged by any peril
covered by the insurance to be provided by Tenant under subparagraph 13(A)
above, but only to such extent that rebuilding or repairs can in Landlord's
estimation be completed within two hundred fifty-five (255) days after the date
upon which Landlord is notified by the Tenant of such damage, this Lease shall
not terminate, and Landlord shall at its sole cost and expense, but only to
extent the Landlord has received the insurance proceeds, thereupon proceed with
reasonable diligence to rebuild and repair such buildings to substantially the
condition in which they existed prior to such damage, except that Landlord shall
not be required to rebuild, repair or replace any part of the partitions,
fixtures, additions and other improvements which may have been placed in, on or
about the premises by Tenant. If the premises are untenantable in whole or in
part following such damage, the rent payable hereunder during the period in
which they are untenantable shall, nevertheless, not xxxxx and remain fully
payable by the Tenant to the Landlord. In the event that Landlord should fail to
complete such repairs and rebuilding within two hundred fifty-five (255) days
after the date upon which Landlord is notified by Tenant of such damage, Tenant
may at its option terminate this lease by delivering written notice of
termination to Landlord as Tenant's exclusive remedy, whereupon all rights and
obligations hereunder shall cease and terminate.
F. Notwithstanding anything herein to the contrary, in the event the holder of
any indebtedness secured by a mortgage or deed of trust covering the premises
requires that the insurance proceeds be applied to such indebtedness, then
Landlord shall have the right to terminate this lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirement
is made by any such holder, whereupon all rights and obligations hereunder shall
cease and terminate.
G. Anything in this lease to the contrary notwithstanding, Landlord and Tenant
hereby waive and release each other of and from any and all rights of recovery,
claim, action or cause of action, against each other, their agents, officers and
employees, for any loss or damage that may occur to the premises, improvements
to any building of which the premises are a part, or personal property (building
contents) within the building, by reason of fire or the elements regardless of
cause or origin, including negligence of Landlord or Tenant and their agents,
officers and employees, but only to the extent of the insurance proceeds payable
under the policies of insurance covering the property. Because this subparagraph
will preclude the assignment of any claim mentioned in it by way of subrogation
(or otherwise) to an insurance company (or any other person), the Tenant agrees
immediately to give to each insurance company
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which has issued to it policies of fire and extended coverage insurance, written
notice of the terms of the mutual waivers contained in this subparagraph, and to
have the insurance policies properly endorsed, if necessary, to prevent the
invalidation of the insurance coverage by reason of the mutual waivers contained
in this subparagraph.
14. Taxes. Tenant shall pay when due all real property ad valorem taxes
(including any increases in any subsequent years, with payments in the last year
of Tenant's occupancy to be appropriately apportioned or prorated) and
assessments of any kind or nature which may be imposed upon the premises.
15. Liability. Landlord shall not be liable to Tenant or Tenant's employees,
agents, patrons or visitors, or to any other person whomsoever, for any injury
to person or damage to property on or about the premises, resulting from and/or
caused in part or whole by the negligence or misconduct of Tenant, its agents,
servants or employees, or of any other person entering upon the premises, or
caused by the buildings and improvements located on the premises becoming out of
repair, or caused by leakage of gas, oil, water or steam or by electricity
emanating from the premises, or due to any cause whatsoever, and Tenant hereby
covenants and agrees that it will at all times indemnify and hold safe and
harmless the property, the Landlord (including without limitation the trustee
and beneficiaries if Landlord is a trust), Landlord's agents and employees from
any loss, liability, claims, suits, costs, expenses, including without
limitation attorney's fees and damages, both real and alleged, arising out of
any such damage or injury; except injury to persons or damage to property the
sole cause of which is the negligence of Landlord or the failure of Landlord to
repair any part of the premises which Landlord is obligated to repair and
maintain hereunder within a reasonable time after the receipt of written notice
from Tenant of needed repairs. Tenant shall procure and maintain throughout the
term of this lease a policy or policies of insurance, at its sole cost and
expense, insuring both Landlord and Tenant against all claims, demands or
actions arising out of or in connection with: (i) the premises; (ii) the
condition of the premises; (iii) Tenant's operations in and maintenance and use
of the premises; and (iv) Tenant's liability assumed under this lease, the
limits of such policy or policies to be in the amount of not less than
$2,000,000 per occurrence in respect of injury to persons (including death), and
in the amount of not less than $1,000,000 per occurrence in respect of property
damage or destruction, including loss of use thereof. All such policies shall be
procured by Tenant from responsible insurance companies satisfactory to
Landlord. Certified copies of such policies, together with receipt evidencing
payment of premiums therefor, shall be delivered to Landlord prior to the
commencement date of this lease. Not less than fifteen (15) days prior to the
expiration date of any such policies, certified copies of the renewals thereof,
bearing notations evidencing the payment of renewal premiums shall be delivered
to Landlord. Such policies shall further provide that not less than thirty
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(30) days written notice shall be given to Landlord before such policy may be
canceled or changed to reduce insurance provided thereby.
16. Condemnation.
A. If the whole or any substantial part of the premises which renders Tenant's
current use of the premises impractible should be taken for any public or
quasi-public use under governmental law, ordinance or regulation, or by right of
eminent domain, or by private purchase in lieu thereof and the taking would
prevent or materially interfere with the use of the premises for the purpose for
which they are being used, as determined by Landlord, this lease shall terminate
and the rent shall be abated during the unexpired portion of this Lease,
effective when the physical taking of said premises shall occur.
B. If part of the premises shall be taken for any public or quasi-public use
under any governmental law, ordinance or regulation, or by right of eminent
domain, or by private purchase in lieu thereof, and this Lease is not terminated
as provided in the subparagraph above, this Lease shall not terminate but the
rent payable hereunder during the unexpired portion of this Lease shall be
reduced by an amount proportionate to the percentage of the premises so taken.
C. All compensation awarded for any taking (or the proceeds of private sales in
lieu thereof) of the premises shall be the property of Landlord, and Tenant
hereby assigns its interest in any such award to Landlord-, provided, however,
Landlord shall have no interest in any award made to Tenant for loss of business
or for the taking of Tenant's fixtures and other property if a separate award
for such items is made to Tenant.
17. Holding Over. Tenant will, at the termination of this lease by lapse of
time or otherwise, yield up immediate possession to Landlord. If Landlord agrees
in writing that Tenant may hold over after the expiration or termination of this
Lease, unless the parties hereto otherwise agree in writing on the terms or such
holding over, the hold over tenancy shall be construed as a tenancy at will and
shall be subject to termination by Landlord at any time upon not less than five
(5) days advance written notice, or by Tenant at any time upon not less than
thirty (30) days advance written notice, and all of the other terms and
provisions of this lease shall be applicable during that period, except that
Tenant shall pay Landlord from time to time upon demand, as rental for the
period of any hold over, an amount equal to double the rent in effect on the
termination date, computed on a daily basis for each day of the hold over
period. No holding over by Tenant, whether with or without consent of Landlord,
shall operate to extend this lease except as otherwise expressly provided. The
preceding provisions of this Paragraph 15 shall not be construed consent for
Tenant to hold over.
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18. Quiet Enjoyment. Landlord covenants that it now has good title to the
premises, free and clear of all liens and encumbrances, excepting only the lien
for current taxes not yet due, such mortgage or mortgages as are permitted by
the terms of this Lease, zoning ordinances and other building and fire
ordinances and governmental regulations relating to the use of the premises, and
easements, restrictions and other conditions of record. Landlord represents and
warrants that it has full right and authority to enter into this Lease and that
Tenant, upon paying the rental herein set forth and performing its other
covenants and agreements herein set forth, shall peaceably and quietly have,
hold and enjoy the premises for the term hereof without hindrance or molestation
from Landlord, subject to the terms and provisions of this Lease.
19. Events of Default. The following events shall be deemed to be events of
default by Tenant under this lease:
A. In the event of (i) failure of Tenant to pay any installment of rent due
hereunder promptly for a period of ten (10) days after written notice from
Landlord to Tenant of such default; or (ii) failure of Tenant to comply with any
other term, covenant or condition of this Lease for a period of thirty (30) days
after written notice from Landlord to Tenant of such default (provided, however,
that if the default complained of is a default other than one which may be cured
by the payment of money, no default on the part of the Tenant in the performance
of any acts to be done or conditions to be met shall be deemed to exist if steps
shall have been commenced in good faith by the Tenant to rectify the same and
shall be prosecuted to completion with diligence and continuity).
B. Tenant shall make a transfer in fraud of creditors, or shall make an
assignment for the benefit of creditors.
C. Tenant shall file a petition, other than a Chapter XI proceeding, under any
section or chapter of the United States Bankruptcy Code, as amended, or under
any similar law or statute of the United States or any State thereof, or an
order for relief shall be entered against Tenant in any proceedings filed
against Tenant thereunder.
D. A receiver or trustee shall be appointed for all or substantially all of the
assets of Tenant.
E. Tenant shall vacate all or a substantial portion of the premises, whether or
not Tenant is in default of the rental payments due under this Lease.
F. Tenant shall fail to discharge any lien placed upon the premises in violation
of Paragraph 23 hereof within twenty (20) days after any such lien or
encumbrance is filed against the premises, or shall fail to take such actions as
is reasonably necessary to cause such lien to be discharged.
12
G. Tenant shall fail to comply with any material term, provision or covenant of
this lease (other than the foregoing in this Paragraph 19), and shall not cure
such failure within twenty (20) days after written notice thereof to Tenant.
20. Remedies.
A. Upon the occurrence of any such events of default described in Paragraph 19
hereof, Landlord shall have the option to pursue any one or more of the
following remedies without any notice or demand whatsoever.
(a) Terminate this lease, in which event Tenant shall immediately surrender the
premises to Landlord, and if Tenant fails so to do, Landlord may, without
prejudice to any other remedy which it may have for possession or arrearage in
rent, enter upon and take possession of the premises and expel or remove Tenant
and any other person who may be occupying such premises or any part thereof, by
force if necessary, but only within the law.
(b) Enter upon and take possession of the premises and expel or remove Tenant
and any other person who may be occupying such premises or any part thereof, by
force if necessary, but only within the law and relet the premises and receive
the rent therefor.
(c) Enter upon the premises, by force if necessary, but only within the law, and
do whatever Tenant is obligated to do under the terms of this Lease; and Tenant
agrees to reimburse Landlord on demand for any reasonable expenses which
Landlord may incur in thus effecting compliance with Tenant's obligations under
this Lease, and Tenant further agrees that Landlord shall not be liable for any
damages resulting to the Tenant from such action.
(d) After obtaining possession as provided herein, alter all locks and other
security devices at the premises without terminating this Lease.
In the event Landlord may elect to regain possession of the premises by summary
ejectment proceeding, Tenant hereby specifically waives any statutory notice
which may be required prior to any such proceeding, and agrees that Landlord's
execution of this Lease is, in part, consideration for this waiver.
In the event Tenant fails to pay any installment of rent hereunder as and when
such installment is due, to help defray the additional cost to Landlord for
processing such late payments Tenant shall pay to Landlord on demand a late
charge in an amount equal to five percent (5%) of such installment; and the
failure to pay such amount within ten (10) days after demand therefor shall be
an
13
event of default hereunder. The provision for such late charge shall be in
addition to all of Landlord's other rights and remedies hereunder or at law and
shall not be construed as liquidated damages or as limiting Landlord's remedies
in any manner.
B. Exercise by Landlord of any one or more remedies hereunder granted or
otherwise available shall not be deemed to be in acceptance of surrender of the
premises by Tenant, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written agreement of
Landlord and Tenant. No such alteration of locks or other security devices and
no removal or other exercise of dominion by Landlord over the property of Tenant
or others at the premises shall be deemed unauthorized or constitute a
conversion, Tenant hereby consenting, after any event or default, to the
aforesaid exercise of dominion over Tenant's property within the premises. All
claims for damages by reason of such re-entry and/or repossession and/or
alteration of locks or other security devices are hereby waived, as are all
claims for damages by reason of any summary ejectment proceedings, or other
legal process. Tenant agrees that any re-entry by Landlord may be pursuant to
judgement obtained in summary ejectment proceedings or other legal proceedings
or without the necessity for any legal proceedings, as Landlord may elect, and
Landlord shall not be liable in trespass or otherwise.
C. In the event Landlord elects to terminate the lease by reason of an event of
default, then notwithstanding such termination, Tenant shall be liable for and
shall pay to Landlord, at the address specified for notice to Landlord herein,
the sum of all rental and other indebtedness accrued to date of such
termination, plus, as liquidated damages and not as a penalty, an amount equal
to the present value (using a discount rate equal to the Bank of America's then
prime rate) of the total rental hereunder for the remaining portion of the lease
term (had such term not been terminated by Landlord prior to the date of
expiration stated in Paragraph I ).
D. In the event that Landlord elects to repossess the premises without
terminating the lease, then Tenant shall be liable for and shall pay to
Landlord, at the address specified for notice to Landlord herein, all rental and
other indebtedness accrued to the date of such repossession, plus rental and all
other charges and expenses required to be paid by Tenant to Landlord during the
remainder of the lease term until the date of expiration of the term as stated
in Paragraph I diminished by any net sums thereafter received by Landlord
through reletting the premises during said period (after deducting expenses
incurred by Landlord as provided in subparagraph 17(E) below). In no event shall
Tenant be entitled to any excess of any rental obtained by reletting over and
above the rental herein reserved. Actions to collect amounts due by Tenant to
Landlord under this subparagraph may be brought from time to time, on one or
more occasions, without the necessity of Landlord's waiting until expiration of
the lease term.
14
E. In case of any event of default or breach by Tenant, or threatened or
anticipatory breach or default, Tenant shall also be liable for and shall pay to
Landlord, at the address specified for notice to Landlord herein, in addition to
any sum provided to be paid above, reasonable brokers' fees incurred by Landlord
in connection with reletting the whole or any part of premises; the reasonable
costs of removing and storing Tenant's or other occupant's property; the
reasonable costs of repairing, altering, remodeling or otherwise putting the
premises into condition acceptable to a new tenant or tenants; and all
reasonable expenses incurred by Landlord in enforcing or defending Landlord's
rights and/or remedies including reasonable attorney's fees.
F. If Tenant should fail to make any payment or cure any default hereunder
within the time herein permitted, Landlord, without being under any obligation
to do so and without thereby waiving such default, may make such payment and/or
remedy such other default for the account of Tenant (and enter the premises for
such purpose), and thereupon Tenant shall be obligated to, and hereby agrees, to
pay Landlord, upon demand, all reasonable costs, expenses and disbursements
(including reasonable attorney's fees) incurred by Landlord in taking such
remedial action, plus interest thereon at the rate of eight percent (8%) (or the
highest rate allowed by law, whichever is less) from the date Landlord incurs
such costs, expenses, disbursements or fees.
G. In the event of any default by Landlord, Tenant's exclusive remedy shall be
an action for damages, but prior to any such action Tenant will give Landlord
written notice specifying such default with particularity, and Landlord shall
thereupon have thirty (30) days in which to cure any such default. Unless and
until Landlord fails to so cure any default after such notice, Tenant shall not
have any remedy or cause of action by reason thereof. All obligations of
Landlord hereunder will be construed as covenants, not conditions; and all such
obligations will be binding upon Landlord only during the period of its
possession of the premises and not thereafter. The term "Landlord" shall mean
only the owner, for the time being of the premises, and in the event of the
transfer by such owner of its interest in the premises, such obligations of the
Landlord shall be binding during the lease term upon each new owner for the
duration of such owner's ownership. Notwithstanding any other provision hereof,
Landlord shall not have any personal liability hereunder.
H. In the event that Landlord shall have taken possession of the premises
pursuant to the authority herein granted then Landlord shall have the right to
keep in place and use all of the furniture, fixtures and equipment at the
premises, including that which is owned by or leased to Tenant at all times
prior to any foreclosure thereon by Landlord or repossession thereof by any
lessor thereof or
15
third party having a lien thereon. Landlord shall also have the right to remove
from the premises (without the necessity of obtaining an order for summary
ejectment or other legal process) all or any portion of such furniture,
fixtures, equipment and other property located thereon and to place same in
storage at any premises within the County in which the premises is located; and
in such event, Tenant shall be liable to Landlord for costs incurred by Landlord
in connection with such removal and storage. Landlord shall also have the right
to relinquish possession of all or any portion of such furniture, fixtures,
equipment and other property to any person ("Claimant") claiming to be entitled
to possession thereof who presents to Landlord a copy of any instrument
represented to Landlord by Claimant to have been executed by Tenant (or any
predecessor of Tenant) granting Claimant the right under various circumstances
to take possession of such furniture, fixtures, equipment or other property,
without the necessity on the part of the Landlord to inquire into the
authenticity of said instrument's copy of Tenant's or Tenant's predecessors
signature thereon and without the necessity of Landlord making any nature of
investigation or inquiry as to the validity of the actual or legal basis upon
which Claimant purports to act; and Tenant agrees to indemnify and hold Landlord
harmless from all cost, expense, loss, damage and liability incident to
Landlord's relinquishment of possession of all or any portion of such furniture,
fixtures, equipment or other property to Claimant. The rights of Landlord herein
stated shall be in addition to any and all other rights which Landlord has or
may hereafter have at law or in equity; and Tenant stipulates and agrees that
the rights herein granted Landlord are commercially reasonable.
21. Landlord's Lien. In addition to any statutory lien for rent in Landlord's
favor, Landlord shall have and Tenant hereby grants to Landlord a continuing
security interest for all rentals and other sums of money becoming due hereunder
from Tenant, upon all goods, wares, equipment, fixtures, furniture, inventory,
accounts, contract rights, chattel paper and other personal property of Tenant
situated on the premises, and such property shall not be removed therefrom
without the consent of Landlord until all arrearages in rent as well as any and
all other sums of money then due to Landlord hereunder shall first have been
paid and discharged. In the event of a default under this lease, Landlord shall
have, in addition to any other remedies provided herein or by law, all rights
and remedies under the Uniform Commercial Code, including without limitation the
right to sell the property described in this Paragraph 19 at public or private
sale upon five (5) days notice to Tenant. Tenant hereby agrees to execute such
financing statements and other instruments necessary or desirable in Landlord's
discretion to perfect the security interest hereby created, and hereby appoints
Landlord as attorney-in-fact for Tenant with full power and authority to execute
such financing statements and other instruments on Tenant's behalf. Any
statutory lien for rent is not hereby waived, the express contractual lien
herein granted being in addition and supplementary thereto.
16
22. Mortgages. Tenant accepts this lease subject and subordinate to any
mortgage(s) and/or deed(s) of trust now or at any time hereafter constituting a
lien or charge upon the premises or Landlord's improvements situated thereon,
provided, however, that if the mortgagee, trustee, or holder of any such
mortgage or deed of trust elects to have Tenant's interest in this lease
superior to any such instrument in whole or in part, then by notice to Tenant,
from such mortgagee, trustee or holder, this lease shall be deemed superior to
such lien, whether this lease was executed before or after said mortgage or deed
of trust. Tenant shall at any time hereafter on demand execute any instruments,
releases or other documents which may be required by any mortgagee for the
purpose of subjecting and subordinating this lease or making this lease superior
to the lien of any such mortgage.
23. Mechanic's Liens and Tenant's Personal Property Taxes.
A. Tenant shall have no authority, express or implied, to create or place any
lien or encumbrance of any kind or nature whatsoever upon, or in any manner to
bind, the interest of Landlord or Tenant in the premises or to charge the
rentals payable hereunder for any claim in favor of any person dealing with
Tenant, including those who may furnish materials or perform labor for any
construction or repairs. Tenant covenants and agrees that it will pay or cause
to be paid all sums legally due and payable by it on account of any labor
performed or materials furnished in connection with any work performed on the
premises on which any lien is or can be validly and legally asserted against its
leasehold interest in the premises or the improvements thereon and that it will
save and hold Landlord harmless from any and all loss, cost or expense based on
or arising out of asserted claims or liens against the leasehold estate or
against the right, title and interest of the Landlord in the premises or under
the terms of this lease. Tenant agrees to give Landlord immediate written notice
of the placing of any lien or encumbrance against the premises.
B. Tenant shall be liable for all taxes levied or assessed against personal
property, furniture or fixtures placed by Tenant in the premises.
24. Notices. Each provision of this instrument or of any applicable
governmental laws, ordinances, regulations and other requirements with reference
to the sending, mailing or delivery of any notice or the making of any payment
by Landlord to Tenant or with reference to the sending, mailing or delivery of
any notice or the making of any payment by Tenant to Landlord shall be deemed to
be complied with when and if the following steps are taken:
A. All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address for Landlord hereinbelow
17
set forth or at such other address as Landlord may specify from time to time by
written notice delivered in accordance herewith. Tenant's obligation to pay rent
and any other amounts to Landlord under the terms of this lease shall not be
deemed satisfied until such rent and other amounts have been actually received
by Landlord.
B. With the exception of the payment of rent as provided in Paragraph 24(a)
above, any notice or document required or permitted to be delivered hereunder
shall be deemed to be delivered whether actually received or not when deposited
in the United States Mail, postage prepaid, Certified or Registered Mail,
addressed to the parties hereto at the respective addresses set out below, or at
such other address as they have theretofore specified by written notice
delivered in accordance herewith:
LANDLORD: Xxxxxx Construction Company I, LLC
c/x Xxxxxx Builders, Inc.
000-X Xxxxxx Xxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
TENANT: Attn: Xxxx X. Xxxxx
Converse Inc.
Xxx Xxxxxxx Xxxx
Xxxxx Xxxxxxx, Xxxxxxxxxxxxx 00000-0000
If and when included within the term "Landlord", as used in this instrument,
there are more than one person, firm or corporation, all shall jointly arrange
among themselves for their joint execution of such a notice specifying some
individual at some specific address for the receipt of notices and payments to
Landlord; if and when included within the term "Tenant", as used in this
instrument, there are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such a notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payments to Tenant. All parties
included within the terms "Landlord" and "Tenant" respectively, shall be bound
by notices given in accordance with the provisions of this paragraph to the same
effect as if each had received such notice.
25. Hazardous Materials.
A. For purposes of this lease: (i) "CERCLA" means The Comprehensive
Environmental Response, Compensation and Liability Act of 1980; (ii) "Hazardous
Material" or "Hazardous Materials" means and includes petroleum (including,
without limitation, gasoline, crude oil, fuel oil, diesel oil, lubricating oil,
sludge, oil refuse, oil mixed with wastes and any other petroleum-related
18
product), flammable explosives, radioactive materials, any substance defined or
designated as a "hazardous substance", under Sections 101 (14) and 102 of
CERCLA; (iii) "Release" shall have the meaning given such term, or any similar
term, in Section 101 (22) of CERCLA; and (iv) "Environmental Law" or
"Environmental Laws" shall mean any "Superfund" or "Super Lien" law, or any
other federal, state or local statute, law, ordinance, code, rule, regulation,
order or decree, regulating, relating to or imposing liability or standards of
conduct concerning any Hazardous Materials as may now or at any time hereafter
be in effect and as amended from time to time, including, without limitation,
the following, as same may be amended or replaced from time to time, and all
regulations promulgated thereunder or in connection therewith: CERCLA; the
Superfund Amendments and Reauthorization Act of 1986 ("XXXX"); The Clean Air Act
("CCA"); the Clean Water Act ("CWA"); The Toxic Substances Control Act ("TSCA");
The Solid Waste Disposal Act ("SWDA"), as amended by the Resource Conservation
and Recovery Act ("RCRA"); and the Occupational Safety and Health Act of 1970
("OSHA").
B. Tenant hereby covenants and agrees that: (i) no activity shall be undertaken
on the premises, nor shall any activity be undertaken within the building if the
premises are less than the whole building or on the land on which the premises
are situated by Tenant or its agents, employees or contractors, which would in
either event cause (A) the premises, building or land to become a hazardous
waste treatment, storage or disposal facility regulated or subject to regulation
under any Environment Law, (B) a Release of any Hazardous Material into the
environment at, on, in, under, above, through, or surrounding the premises,
building or land, or (C) the discharge of pollutants ' or effluents into any
water source or system, which would require a permit under any federal law,
state law, local ordinance or any other Environmental Law pertaining to such
matters; (ii) Tenant shall at its sole cost and expense comply with all
applicable Environmental Laws relating to or affecting the premises, and Tenant
shall keep the premises free and clear of any liens imposed pursuant to any
applicable Environmental Laws arising out of Tenant's use of the premises, all
at Tenant's sole cost and expense; (iii) Tenant will, at Tenant's sole cost and
expense, obtain and/or maintain all licenses, permits and/or other governmental
or regulatory actions necessary to comply with all applicable Environmental Laws
(the "Permits") and Tenant at all times remain in full compliance with the terms
and provisions of the Permits; (iv) Tenant shall immediately give Landlord oral
and written notice in the event that Tenant receives any communication from any
governmental agency, entity, or any other party with regard to Hazardous
Materials on, from or affecting the premises, building or land or otherwise with
respect to Tenant's use and occupancy of the premises or the operation of
Tenant's business therein; and (v) Tenant shall, at Tenant's sole cost and
expense, conduct and complete all investigations, studies, sampling, and
testing, and all remedial, removal, and other actions necessary to clean up and
remove
19
all Hazardous Materials on, from or affecting the premises or, where resulting
from acts or omissions of Tenant or its agents, employees and contractors, the
building and/or land, in accordance with all applicable Environmental Laws.
C. Tenant hereby indemnifies Landlord and agrees to hold Landlord harmless from
and against any and all liens, demands, suits, actions, proceedings,
disbursements, liabilities, losses, litigation, damages, judgements,
obligations, penalties, injuries, costs, expenses (including, without
limitation, attorneys' and expert's fees) and claims of any and every kind
whatsoever paid, incurred, suffered by, or asserted against Landlord and/or the
premises, building and/or land for, with respect to, or as a direct or indirect
result of: (i) the Release or presence from, in, on, over or under the premises
of any Hazardous Materials regardless of quantity and regardless of whether or
not caused by or within the control of Tenant; (ii) the Release or presence
from, in, on, over or under the building or land of Hazardous Materials
regardless of quantity where caused by Tenant or its agents, employees or
contractors; (iii) the violation of any Environmental Laws relating to or
affecting the premises or Tenant, whether or not caused by or within the control
of Tenant; and (iv) the failure by Tenant to comply fully with the terms and
provisions of this Paragraph 25; provided, however that nothing contained in
this Paragraph 25 shall make Tenant liable or responsible for conditions
existing prior to the commencement of the term of this lease or first occurring
after the expiration of the term of this lease except where caused by Tenant or
its agents, employees or contractors.
D. In the event Landlord suspects, in its reasonable opinion, that Tenant has
violated any of the covenants contained in this Paragraph 25, or that the
premises, building or land are not in compliance with the Environmental Laws for
any reason as to which Tenant is responsible hereunder, or that the premises,
building or land are not free of Hazardous Materials for any reason as to which
Tenant is responsible hereunder, Tenant shall take such steps as Landlord
requires by written notice to Tenant in order to confirm or deny such
occurrences, including, without limitation, the preparation of environmental
studies, audits, surveys or reports. In the event that Tenant fails to take such
action, Landlord may take such action and shall have such access to the premises
as Landlord deems necessary, and the cost and expenses of all such actions taken
by Landlord, including, without limitation, Landlord's attorneys' fees, shall be
due and payable by Tenant upon demand therefore from Landlord as additional rent
hereunder. Further, Landlord reserves the right at any time and from time to
time to enter the premises following reasonable advance notice thereof to Tenant
(except in cases of emergency) in order to perform periodic environmental
studies, audits, surveys and reports and in order to determine whether Tenant is
in compliance with the terms of this Paragraph 25.
E. The obligations and liabilities of Tenant under this Paragraph 25 shall
survive the expiration or earlier termination of this lease.
20
26. Miscellaneous.
A. Words of any gender used in this lease shall be held and construed to include
any other gender, and words in the singular number shall be held to include the
plural, unless the context otherwise requires.
B. The terms, provisions and covenants and conditions contained in this Lease
shall apply to, inure to the benefit of, and be binding upon, the parties hereto
and upon their respective heirs, legal representatives, successors and permitted
assigns, except as otherwise herein expressly provided. Landlord shall have the
right to transfer and assign, in whole or in part, its rights and obligations in
the premises that are the subject of this Lease. Each party agrees to furnish to
the other, promptly upon demand, a corporate resolution, proof of due
authorization by partners, or other appropriate documentation evidencing the due
authorization of such party to enter into this lease.
C. The captions inserted in this lease are for convenience only and in no way
define, limit or otherwise describe the scope or intent of this lease, or any
provision hereof, or in any way affect the interpretation of this lease.
D. Tenant agrees from time to time within ten (10) days after request of
Landlord, to deliver to Landlord, or Landlord's designee, an estoppel
certificate stating that this Lease is in full force and effect, the date to
which rent has been paid, the unexpired term of this lease and such other
matters pertaining to this Lease as may be requested by Landlord. It is
understood and agreed that Tenant's obligation to furnish such estoppel
certificates in a timely fashion is a material inducement for Landlord's
execution of this Lease.
E. This Lease may not be altered, changed or amended except by an instrument in
writing signed by both parties hereto.
F. All obligations of Tenant hereunder not fully performed as of the expiration
or earlier termination of the term of this Lease shall survive the expiration or
earlier termination of the term hereof, including without limitation all payment
obligations with respect to taxes and insurance and all obligations concerning
the condition of the premises. Upon the expiration or earlier termination of the
term hereof, and prior to Tenant vacating the premises, Tenant shall pay to
Landlord any amount reasonably estimated by Landlord as necessary to put the
premises, including without limitation all heating and air conditioning systems
and equipment herein, in good condition and repair, ordinary wear and tear
excepted. Tenant shall also, prior to vacating the premises, pay to Landlord the
amount, as estimated by Landlord, of Tenant's obligation hereunder for real
21
estate taxes and insurance premiums for the year in which the Lease expires or
terminates. All such amounts shall be used and held by Landlord for payment of
such obligations of Tenant hereunder, with Tenant being liable for any
additional costs therefor upon demand by Landlord, or with any excess to be
returned to Tenant after all such obligations have been determined and
satisfied, as the case may be.
G. If any clause or provision of this lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall not be affected thereby, and it is also the
intention of the parties to this Lease that in lieu of each clause or provision
of this Lease that is illegal, invalid or unenforceable, there be added as a
part of this Lease a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
H. All references in this lease to "the date hereof' or similar references
shall be deemed to refer to the last date, in point of time, on which all
parties hereto have executed this lease.
I. Landlord and Tenant represent and warrant that they have dealt with no
broker, agent or other person in connection with this transaction or that no
broker, agent or other person brought about this transaction, and each party
agrees to indemnify the other and hold it harmless from and against any claims
by any broker, agent or other person claiming a commission or other form of
compensation by virtue of having dealt with the other party with regard to this
leasing transaction.
J. This Lease must be executed by both the Landlord and the Tenant on or before
July 15, 1999 for this Lease to become effective.
K. The Tenant presently occupies the premises under a lease with the Landlord
which shall expire on January 31, 2001(the "current lease"). Attached as a part
of this Lease is Exhibit B, which describes additional obligations of both the
Landlord and the Tenant under both this Lease and under the current lease. The
failure of either party to perform an obligation set forth in Exhibit B shall
constitute an Event of Default under Paragraph 19G (as regards the Tenant) or a
default under Paragraph 20G (as regards the Landlord).
22
(EXECUTION PAGE TO LEASE OF WESTINGHOUSE BOULEVARD
PROPERTY IN CHARLOTTE, NORTH CAROLINA)
EXECUTED BY TENANT THIS 7th DAY OF JULY, 1999.
Converse Inc.
(Corporate Seal)
By: /s/ Xxxxx X. Xxxx
----------------------------------------
Name: Xxxxx X. Xxxx
ATTEST: -------------------------------------
Title: Chairman and Chief Executive Officer
-------------------------------------
/s/ Xxxx X. Xxxxx
---------------------------
Secretary
EXECUTED BY LANDLORD, this 8th day of July, 1999.
Xxxxxx Construction Company I, LLC
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx X. Xxxxxx
Title: Manager
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------------
Xxxxxx X. Xxxxxx
Title: Manager
23
Exhibit B
1. The total warehouse building is approximately 437,700 square feet.
2. Landlord to install new roof on the 30,000 square footage office building
(return goods building) with a completion date of 9/1/99 or earlier. To
include two pump house roofs.
3. Tenant agrees to pay $100,000 to the Landlord in full consideration of its
obligation under the lease to return the office building (return goods
building) to its original condition. This shall be full payment for any
damages and modifications to this building's interior office partitions,
lighting, ceilings, carpet, fixtures, driveways, entrance, paving, et
cetera. Tenant agrees to pay this amount to Landlord by the expiration of
the current lease on January 31, 2001.
4. Landlord to correct the flooding of the dock xxxxx during heavy rains in
the shipping and receiving areas by October 1, 1999.
5. Tenant will have all mechanical equipment in satisfactory operating
condition at expiration of the original lease on January 31, 2001.
6. The rainspouts shall be either repaired or replaced by Landlord by October
31, 1999.
7. Landlord and Tenant to share on a 50-50 basis the cost of increasing the
electrical load into the building from 800 amps to1200 amps by April 1,
2000. This cost is estimated to be in the range of $30,000.
8. Landlord to continue during the existing term and renewal of this lease to
be responsible for roof maintenance for the warehouse and the two pump
houses.
9. Property leased area describing the boundaries is per the attached
drawings.
10. Converse has elected not to continue leasing the 30,000 square footage
office building (return goods building). The costs for separating the
utilities of the two buildings shall be shared on a 50-50 basis between
Landlord and the Tenant. The sprinkler system for this 30,000 SF building
to remain "as is" tied into Converse's fire protection lines.
24
11. All modification costs to the existing chain link fence are to be
completed by January 31, 2001, the cost of which is to be shared on a
50-50 basis by Tenant and Landlord.
25
